Page No.# 1/13 vs Laxmi Devi @ Lakhimi Devi And 8 Ors on 20 September, 2024

[Cites 8, Cited by 0]

Gauhati High Court

Page No.# 1/13 vs Laxmi Devi @ Lakhimi Devi And 8 Ors on 20 September, 2024

1. Heard Mr. A.K. Dutta, learned CGC for the review petitioners. Also heard Mr. B.D. Das, learned Senior Counsel assisted by Ms. R. Deka and Mr. S.C. Page No.# 4/13 Biswas, learned counsels for the writ petitioners. Mr. R.K. Talukdar, learned counsel appears for the Comptroller and Auditor General of India (CAG).

2. The review petitioners' counsel submits that the impugned judgment and order dated 13.09.2022 passed in WP(C) 258/2022 and the other 7 writ petitions should be reviewed, inasmuch as, this Court had allowed the writ petitions by holding that there could not be a recovery of any excess payment of salary made to the writ petitioners, as they were holding Class-III (Group-C) post, in terms of the judgment of the Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334.

3. The review petitioners' counsel submits that when going into the Pay Scale enjoyed by the writ petitioners and the Grade Pay being given to them, it is clear that the writ petitioners were holding Group-B posts and not Group-C posts. He also submits that while there had been wrong fixation of pay of the writ petitioners as far back as on 01.01.2006, the writ petitioners had executed Undertakings in the year 2008 that they would refund back the excess pay given to them, due to any wrong fixation of pay. He submits that the recovery of the wrong fixation of pay of the petitioners started in the year 2021 and as the Undertakings given by the writ petitioners were still valid, there was no infirmity in the recovery of the excess pay given to the petitioners even after 15 years.

4. The learned CGC for the review petitioners further submits that in terms of the judgment of the Supreme Court in the case of High Court of Punjab & Haryana vs. Jagdev Singh, reported in (2016) 14 SCC 267, an employee Page No.# 5/13 who has furnished an Undertaking that excess payment made to him would be refunded, was bound by the Undertaking so given. He accordingly submits that the impugned judgment and order passed in WP(C) 258/2022 and the other writ petitions should be set aside by allowing the review petition.

5. Mr. B.D. Das, learned Senior Counsel for the writ petitioners, on the other hand submits that there is no mistake or error apparent on the face of the record and as such, when a lengthy process of reasoning is required to be undertaken to decide whether the impugned judgment is sustainable, a review petition will not be maintainable. He also submits that there was no stand taken by the review petitioners at the time of disposal of the writ petitions, that the Pay Scale and Grade Pay enjoyed by the writ petitioners showed that they belonged to Group-B posts. He submits that the undertaking given by the petitioners was in respect of the 6 th Pay Commission recommendation, which was accepted vide the Central Civil Services (Revised Pay) Rules, 2008. However, another pay fixation was again done in the year 2010 and 2013, for which no undertaking for refund of excess pay was given by the writ petitioners. He also submits that in terms of the judgment of the Supreme Court in the case of Rafiq Masih (White Washer) [supra], when there has been wrong fixation of pay for more than 5 years, the question of recovery of the wrong fixation of pay does not arise, especially when there is no fraud or misrepresentation made on the part of the writ petitioners. He also submits that in terms of the Full Bench judgment of the Madhya Pradesh High Court in the case of State of Madhya Pradesh, through Principal Secretary and Others vs. Jagdish Prasad Dubey, reported in 2024 SC OnLine MP 1567, recovery can be effected from the pensionary benefits or from the salary of the Page No.# 6/13 employee, based on the Undertaking or the Indemnity Bond given by the employee before the grant of benefit of pay refixation. However, as the Supreme Court in the case of Rafiq Masih (supra) has held that recovery by the employers would be impermissible in law when the excess payment has been made for a period in excess of 5 years, before the order of recovery is issued, the recovery order issued by the State respondents after more than 10 years cannot be acted upon. Further, in the present case as the recovery of the excess pay has been made 15 years after the wrong fixation of pay had been made, no recovery could have been made in terms of the decision of Rafiq Masih (White Washer) [supra].

6. Mr. B.D. Das also submits that in terms of the Office Order No. LGB/Estt/Audit/1948/18/2230 dated 25.06.2021 issued by the Administrative Officer, LGB Regional Institute of Mental Health, Government of India, Ministry of Health & Family Welfare, there is nothing to show that there was any wrong fixation of pay of the petitioners made in the year 2006, especially when the review petitioners have not clarified as to what should have been the correct fixation of pay at that period of time and even as on today.

7. I have heard the learned counsels for the parties.

8. In the case of Sanjay Kumar Agarwal vs. State Tax Officer (1) and Another, reported in (2024) 2 SCC 362, the Supreme Court had considered various other decisions of the Supreme Court on the issue of review and held in paragraph 16 that the gist of the various decisions of the Supreme Court with regard to review of an order/judgment would go to show that :

Page No.# 7/13 "16.1 A judgment is open to review inter-alia if there is a mistake or an error apparent on the face of the record.

16.2 A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. 16.3 An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review. 16.4 In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be "reheard and corrected." 16.5 A Review Petition has a limited purpose and cannot be allowed to be "an appeal in disguise."

16.6 Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.

16.7 An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.

16.8 Even the change in law or subsequent decision/judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review."

9. In the case of Rafiq Masih (White Washer) [supra], the Supreme Court has held that it would not be possible to postulate all situations of hardship which could cover the employees on the issue of recovery, where payments have mistakenly been made by the employer in excess of their entitlement. It however held that recoveries by the employers would be impermissible in law in the following circumstances :

Page No.# 8/13 "(1) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

10. The present case appears to be covered by Proposition No. (iii) of Rafiq Masih case, as the excess payment has been made to the writ petitioners from the year 2006 and recovery had been initiated only from the year 2021, i.e. after 15 years. In the case of Jagdev Singh (supra), the employee's stand was that excess payment could not be recovered from employees who retired from the service of the State, in terms of the Proposition No. (ii) made in Rafiq Masih case, even though an undertaking had been made by the employees that they would refund any excess payment made to them on the basis of any revision of pay made. The Supreme Court however held that when retired employees had made an Undertaking that any payment of the revised Pay Scale, if found in excess, would be refunded, Proposition No. (ii) provided in the case of Rafiq Masih (supra) could not bar the refund of the excess amount paid to the employees in that case. The review petitioners case is that though Page No.# 9/13 the judgment of the Supreme Court in Jagdev Singh (supra) was basically with regard to the applicability of an Undertaking in respect of Proposition No.

(ii), the same analogy would apply in the case of Proposition No. (iii), which is specific to this case.

11. Whether Proposition No. (iii) would be applicable if recovery for refund of excess payment is made after 15 years from the date of wrong fixation of pay and the execution of an undertaking is the issue to be decided. In the present case, the revision of pay had apparently been done by the review petitioners by adopting the 6th Central Pay Commission's recommendation, vide the Central Civil Services (Revised Pay) Rules, 2008. The writ petitioners had thereafter submitted their Undertakings dated 30.09.2008, to the effect that any excess payment that may be found to have been made as a result of incorrect fixation of pay, would be refunded by the writ petitioners. Thus, the Undertaking given by the petitioners was in respect of the fixation of pay made in pursuance to the CCS (Revised Pay) Rules, 2008. Para 3 of the affidavit-in-opposition filed by the writ petitioners in the review case, is to the effect that the review petitioners again re-fixed the pay scale in the year 2010 and in the year 2013. The same has not been controverted by the review petitioners. This Court is of the view that when the Undertaking only covers the pay fixation made in the year 2006, to make the undertaking applicable in relation to the subsequent pay fixation made in the year 2010 and 2013, a similar undertaking was required to be insisted by the review petitioners. In the case of Jagdish Prasad Dubey (supra) the issue before the Full Bench of the Madhya Pradesh High Court was whether recovery can be ordered to be affected from the pensionary benefits or from the salary, in view of an undertaking or Indemnity Bond taken by the Page No.# 10/13 employer before the grant of benefit of pay fixation. The Full Bench of the Madhya Pradesh High Court answered the following question by holding that recovery can be effected from the pensionary benefits or from the salary, based on the undertaking or the indemnity bond given by the employee before the grant of benefit of pay refixation. Further, an undertaking made with reference to refixation of pay done decades ago cannot be enforced. However, the question of hardship of a Government servant has to be taken note of in pursuance to the judgment passed by the Hon'ble Supreme Court in the case of Syed Abdul Qadir & Others vs. State of Bihar & Others , reported in (2009) 3 SCC 475 and the time period as fixed for recovery to be allowed in the case of Rafiq Masih (supra) reported in (2015) 4 SCC 334, was required to be followed.

12. In the case of Rafiq Masih (supra), the Supreme Court held that in the Supreme Court judgment in Syed Abdul Qadir(supra), the issue of recovery revolved on the action being iniquitous. It held that dealing with the subject of the action being iniquitous, it was sought to be concluded that when the excess unauthorized payment was deducted within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are in violation of Article 14 of the Constitution of India. The logic of recovery after a long period of time being iniquitous, would be due to the fact that it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a Page No.# 11/13 government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. As such, if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee.

13. The impugned office order No.LGB/Estt./Audit/1948/18/ 2230 dated 25.06.2021 issued by the Administrative Officer, LGB Regional Institute of Mental Health, Tezpur, on the basis of which recovery is sought to be made from the salary of the petitioners is reproduced hereinbelow as follows:-

"OFFICE ORDER Sub: Audit objection pertaining to erroneous pay fixation i.r.o. nursing personnel.

It is hereby informed to all the existing nursing personnel who joined prior to 01.01.2016 that the CAG audit has raised objection that pay fixation in respect of nursing personnel has been done erroneously since 01.01.2006. The matter is under review/re- examination and re-fixation of pay by a team constituted by the C/A vide Office Order No LGB/External Audit/1001/2017- 20/2162 dated 22.06.2021 and quantum of excess payment that may be found to have been made as a result of incorrect fixation of pay shall be decided later on for recovery. However, pending finalization of excess payment made, if any on the basis of re-fixation of pay as per rule as well as CAG audit observation, it has been decided that a lump sum amount of Rs. 20,000/- (Rupees twenty thousand) only per month shall, be recovered from the salary of each nursing Page No.# 12/13 personnel, in question, except retired persons starting from this month i.e. June, 2021 so as to reduce financial burden to those affected employees.

This is issued as per approval of the Director. LGBRIMH."

14. A perusal of the same shows that no notice had been issued to the writ petitioners prior to the impugned order being issued. The office order does not make any mention of the excess amount to be paid by each of the petitioners and the method of determining the same. No time period for recovery of the money has been made. The office order also does not make any reference as to what should have been the correct pay scale payable to the petitioners in the year 2008 and in terms of the said corrected pay scale, what should be the correct pay scale to be enjoyed by the petitioners at this point of time.

15. In the present case, the recovery sought to be made after 15 years on the basis of the wrong fixation made in the year 2006 cannot be allowed, in view of Proposition No. (iii) in Rafiq Masih's case. The same would bar the recovery of the excess payment made due to wrong fixation of pay, inasmuch as, this Court would also have to take note of decision of the Supreme Court in the case of Syed Abdul Qadir, where it held that the question of hardship of a Government servant has to be taken note of. As such, the present review appears to be an appeal in the guise of a review.

16. Without going into various other issues, the fact remains that the impugned judgment and order dated 13.09.2022 had been made on the submission made by the review petitioners' counsel therein that the writ petitioners belonged to Group-C posts. In the present review petition, a diametrically opposite stand has been taken that the writ petitioners do not Page No.# 13/13 belong to Group-C post but to Group-B post, on the basis of the Pay Scale and Grade Pay being given to them. However, the said stand was never an issue taken by the review petitioners at the time of disposal of the writ petitions. In any event, the writ petitions had been disposed not only on the ground that the petitioners were holding Group-C posts, but also on the ground that recovery could not be made when the excess payment had been made for a period in excess of 5 years in terms of the Proposition No. (iii) in Rafiq Masih case. The manner in which the review petitioners' are trying to review the impugned judgment and order requires this Court to go through a lengthy process of reasoning. The same requires to be detected by going into facts which were not brought out in the earlier round of litigation, which cannot be done in a review petition. Further, there is no mistake or error apparent on the face of the record.

17. The Supreme Court in the case of State of West Bengal vs. Kamal Sengupta, reported in (2008) 8 SCC 612 held that review cannot partake the character of an appeal. In view of the reasons stated above, this Court is of the view that no case for review of the impugned judgment and order has been made out. The review petition is accordingly dismissed.

JUDGE Comparing Assistant

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