Jharkhand High Court
Arun Kumar vs Jharkhand State Electricity Bo on 30 July, 2012
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 6343 of 2009
Arun Kumar .... Petitioner
Versus
1.Jharkhand State Electricity Board through its Chairman, Ranchi
2. Secretary, Jharkhand State Electricity Board
3. Director of Accounts, Jharkhand State Electricity Board
4. Personnel Officer, Electric Supply Circle, Jharkhand State Electricity Board, Daltonganj, Palamau .... Respondents CORAM: HON'BLE MR. JUSTICE D.N. PATEL For the Petitioner : Mr. Ashok Kumar Jha, Advocate For the Respondents : Mr. A.K. Pandey, Advocate th 05/Dated: 30 July, 2012
1. The present writ petition has been preferred against the order passed by the respondents, which are at Annexures 2, 3 and 3/1 dated 12th March, 2008, 11th July, 2006 and 11th August, 2006 respectively, whereby, the salary paid to the petitioner has been ordered to be withdrawn and also order of recovery has also been passed by the respondents and that too in gross violation of catena of decisions rendered by the Hon'ble Supreme Court as well as Full Bench of this Court and also in gross violation of principles of natural justice.
2. Learned counsel for the petitioner submitted that there was no misrepresentation or fraud played by the petitioner for getting the amount, in question. This is not an allegation by the other side upon the petitioner. Even in the counter affidavit, this allegation upon the petitioner is absent. Thus, without there being any misrepresentation or fraud played by the petitioner, even if the amount is paid by mistake, the same cannot be recovered. Learned counsel for the petitioner has relied upon following decisions:
(i) (2006) 11 SCC 492,
(ii) (2006) 11 SCC 709,
(iii) 2008 (3) JCR 655 (Full Bench)
(iv) 2012 (2) JCR 315
Learned counsel for the petitioner submitted that in light of the aforesaid decisions, the orders at Annexures, 2, 3 and 3/1 may be quashed and set aside and the amount already deducted may be ordered to be refunded to the petitioner, within stipulated time and if it is not paid within stipulated time, the same may be ordered to be paid with some interest.
3. Learned counsel for the respondents submitted that the petitioner was paid higher amount of salary, for which, he was not entitled. The details have been given in the counter affidavit and, therefore, order of recovery was passed 2 by the respondents as per Annexures 3 and 3/1 and there is adjustment of Rs. 71,820/ from the gratuity amount, which is payable to the petitioner. Thus, no errors have been committed by the respondents while passing the orders at Annexures 2, 3 and 3/1 and, therefore, this writ petition deserves to be dismissed.
4. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the orders passed by the respondents dated 12th March, 2008 at Annexure2, order dated 11th July, 2006 at Annexure3 as well as order dated 11th August, 2006 at Annexure3/1 to the extent to which it affects the present petitioner, mainly for the following facts and reasons:
(i) The present petitioner was appointed as Bill Clerk with the respondents on 1st November, 1969 and, thereafter, he worked honestly, sincerely, diligently and to the satisfaction of the respondents.
(ii) It appears that, thereafter, the petitioner was given time to time promotions and without any misrepresentation or fraud played by him, he was also given higher pay scales. The petitioner retired as an Accounts Assistant on 31st May, 2007.
(iii) It further appears that the order at Annexure2 has been passed after the retirement of the present petitioner i.e. on 12 th March, 2008 and looking to the order at Annexure2, it appears that no reasons have been assigned for adjustment of Rs. 71,820/ from the amount of gratuity payable to the petitioner. What is the calculation of this amount, nobody knows. From where this figure has come in the mind of the concerned officer, that is also not known. No figure can come in the mind of the officer from heaven or sky. There is bound to be a definite calculation and there must be cogent reason for deduction of the sizeable amount to the tune of Rs. 71,820/. Nothing has been stated in the orders at Annexure2.
The order at Annexure2 is not only a non speaking order, but, it is violative of principles of natural justice.
(iv) Moreover looking to the order at Annexure3 to the memo of the petition as well as order at Annexure3/1, it appears that there is some allegation levelled against the present petitioner that he has received higher amount of salary to the tune of Rs. 58,72942 paise. Both the orders are dated 11th June, 2006 and 11th August, 2006 respectively. No calculation has been given for this amount. What is the basis of this calculation is not reflected in the orders. This figure cannot come in the 3 mind of the officer from heaven or sky. There ought to have been definite calculation of such amount. No notice has been given before passing the orders at Annexures3 and 3/1. It is submitted by learned counsel for the petitioner that had a notice been given to the petitioner, it would have been pointed out that there is no illegality in getting salary by him. The aforesaid amount was wrongly paid in the year 1979 and 1982, as stated in paragraphs 3, 4, 5 and 6 of the counter affidavit.
(v) It ought to have kept in mind by the respondents, who is a "State" within the meaning of Article 12 of the Constitution that if the reasons are not stated in the impugned orders, then a non speaking order cannot be justified by giving detailed reasoning in the counter affidavit.
(vi) It has been held by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and anr. v. The Chief Election Commissioner, New Delhi and ors., as reported in (1978) 1 SCC 405, especially at paragraph 8, as under:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji :
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older."
(Emphasis supplied) In view of the aforesaid decision, it appears that the order at Annexure2 dated 12th March, 2008, order at Annexure3 dated 11th July, 2006 and order at Annexure3/1 dated 11th August, 2006 are thoroughly non speaking orders. Sizeable amount has been ordered to be deducted. No reasons and calculations have been assigned and, therefore, whatever reasons have been given in the counter affidavit are of no use. The reasons ought to have been given in the administrative order, itself, otherwise all non speaking, void or illegal order will be speaking, valid or 4 legal order by the passage of time and by giving reasons in the counter affidavit, what is under challenge is the reasoning of the impugned order and not the subsequent wisdom of the Government. The counter affidavit is a subsequent wisdom of the Government authority and this subsequently supplied wisdom cannot care the inherent illegality in the impugned orders.
(vii) Looking to the impugned orders at Annexures2, 3 and 3/1, it appears that there is no allegation levelled against the petitioner that he was given higher salary because of his misrepresentation or fraud played by him. With an open eye of the respondents, the petitioner's higher salary was sanctioned by the high ranking officers, every month. Learned counsel for the respondents submitted that the aforesaid amounts were paid to the petitioners in the year 1979 and in the year 1982, wrongly and, therefore, the same has been ordered to be deducted by the impugned orders i.e. after approximately two and half decades.
(viii) Absolutely, illegality has been committed by the respondents, while passing the impugned orders at Annexures2, 3 and 3/1.
(ix) It has been held by the Hon'ble Supreme Court in case of Shyam Babu Verma & others Vs Union of India & others, as reported in (1994) 2 SCC 521, especially at paragraph no. 11, as under:
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330560 but as they have received the scale of Rs 330560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."
(Emphasis supplied)
(x) Moreover, it has been held by the Hon'ble Supreme Court in the case of Sahib Ram Vs. State of Haryana & Others reported in 1995 Supp (1) SCC 18, especially in paragraph 5, which reads as under:
"5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant 5 cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant......."
(Emphasis supplied)
(xi) It has been held by the Hon'ble Supreme Court in case of Bihar State Electricity Board & Another Vs. Bijay Bhadur & Another, reported in (2000) 10 SCC 99, especially in paragraph nos. 7, 8, 9, 10 and 11, which read as under:
"7. Admittedly, the writ petitioners have been allowed annual increments even without passing the Hindi Noting and Drafting Examination which according to Mr Pramod Swarup, learned advocate appearing for the appellant Board has become a condition precedent and part of their service conditions and question of there being any entitlement dehors the same does not and cannot arise. Mr Swarup contended that Regulation 8 is rather categorical on this score as to the date of entitlement and since its deemed effect as a part of the condition of service, the appellant Board is within its authority and jurisdiction to deduct the amounts paid. In short, the submission of Shri Swarup on behalf of the appellant Board is that since the writ petitioners are not entitled to receive any increment, question of retention of the amounts paid whether by mistake of fact or otherwise does not and cannot arise. We, however, are not in a position to lend any credence to the same by reason of the fact that while the increments granted have been sought to be recovered but promotions given have not been withdrawn or cancelled, the Board being the governmental agency and fairness being the only accepted methodology cannot maintain a dual standard on the basis of the selfsame Regulation. Regulation 7 of the Regulation itself provides that there shall not be any increment or any promotion nor would the employees be allowed to cross the efficiency bar. The petitioners have been given due promotions and as a matter of fact the petitioner in CWJC No. 4576 of 1997 is posted as an Accountant in the Electricity Supply SubDivision at Sheohar Town in District Sheohar on promotion. Of the dual benefits conferred the Board however thus withdrew only one part of the benefit under the resolution whereas it lent a blind eye as regards the other part of the benefit flowing from the resolution. This, in our view is not permissible since dual standards are not only nonacceptable but ought to be avoided more so by reason of the factum of the appellant being an authority within the meaning of Article 12 of the Constitution.
8. The contention in support of the appeal as regards the deemed incorporation in the terms and conditions of service cannot also find any support by reason of the fact that unilateral change of terms need not be had. There is no documentary evidence available on the record of this matter through which even an intimation to the staff can be said to have been effected and in the absence of which question of affording any credence to the submission of Mr Swarup on this score does not arise.
9. Further, an analysis of the factual score at this juncture goes to show that the respondents appointed in the year 1966 were allowed to have due increments in terms of the service conditions and salary structure and were also granted promotions in due course of service and have been asked after an expiry of about 1415 years to replenish the Board exchequer from out of the employees' salaries which were paid to them since the year 1979. It 6 is on this score the High Court observed that as both the petitioners have passed the examination though in the year 1993, their entitlement for relief cannot be doubted in any way.
10. The High Court also relied on the unreported decision of the learned Single Judge in the case of Saheed Kumar Banerjee v. Bihar SEB. We do record our concurrence with the observations of this Court in Sahib Ram case and come to a conclusion that since payments have been made without any representation or a misrepresentation, the appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The act or acts on the part of the appellant Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice. The concept of fairness has been given a goby. As such the actions initiated for recovery cannot be sustained under any circumstances. This order however be restricted to the facts of the present writ petitioners. It is clarified that Regulation 8 will operate on its own and the Board will be at liberty to take appropriate steps in accordance with law except however in the case or cases which has/have attained finality.
11. While we record our concurrence as noted above, in regard to the decision of the matter in issue and in particular reference to the factual aspect we do not feel inclined to accept the observations of the High Court pertaining to Regulation 8 of the Regulation. Be it noted that the High Court in para 13 of the judgment observed that the Board shall not be allowed to pass an order for recovery of the said amount as the said amount has already become due to them. This observation sounds contrary to Regulation 8 of the Regulations which records that no arrears of the stopped increments shall be payable even though the person would pass the examination later on. We, therefore, record our disapproval to this observation of the High Court."
(Emphasis supplied)
(xii) It has been held by this Court in the case of Balkeshwar v. M/s Central Coalfields Ltd. and another, as reported in 2001 (1) JCR 175 especially in paragraphs 4 and 10, which read as under:
"4. The respondents in their counter affidavit have accepted that the petitioner retired under V.R. Scheme w.e.f. 20th August, 1999. However, plea has been taken that the date of birth was recorded as 26th October, 1941 and the date of appointment was 23rd November, 1958. On the basis of date of appointment, the petitioner having found to have worked for 42 years 11 months and 3 days and as no person can work more than 42 years, the excess payment made has been adjusted from the retiral benefits.
10. In the circumstances, the respondents cannot deduct any amount or adjust from the salary of the petitioner on the ground that he has worked for more than 11 (eleven) months beyond the period of retirement."
(Emphasis supplied)
(xiii) It has been held by the Hon'ble Patna High Court in the case of Most. Kanti Devi & Ors. v. The State of Bihar & Ors., as reported in 2003 (1) PLJR 9 especially in paragraphs 4 and 5, which read as under:
"4. Rightly or wrongly, the petitioner Sridhar Pandey was permitted to work and draw his salary. The period of which he worked he will 7 be entitled to the emoluments. If he was given work as a result of any collusion between the officials it is upto the State Government to take action against the officer concerned, who permitted this extension of service beyond retirement. On record, there is nothing against the petitioner that he may have committed any misrepresentation or fraud so as to extract from the period of retirement.
5. In the circumstances, there is no occasion for the recovery of the amount which was paid to the petitioner for having worked but after the period of retirement. In so far as the pension is concerned, the heirs of Sridhar Pandey will be entitled to any arrears of pension and consequential family pension."
(Emphasis supplied)
(xiv) It has been held by the Hon'ble Supreme Court in case of Purshottam Lal Das & others Vs. State of Bihar & others, reported in (2006) 11 SCC 492, especially in paragraph nos. 7, 10 and 11, which read as under: "7. So far as the recovery is concerned, in the normal course if the promotion/appointment is void ab initio, a mere fact that the employee had worked in the post concerned for long cannot be a ground for not directing recovery. The cases relied upon by the learned counsel for the State were rendered in a different backdrop. In those cases the appellants were guilty of producing forged certificates or the appointments had been secured on non permissible grounds. In that background this Court held that recovery is permissible. On the contrary, the fact situation of the present case bears some similarity to Sahib Ram v. State of Haryana, Bihar SEB v. Bijay Bhadur and State of Karnataka v. Mangalore University NonTeaching Employees' Assn.
10. The High Court itself noted that the appellants deserve sympathy as for no fault of theirs, recoveries were directed when admittedly they worked in the promotional posts. But relief was denied on the ground that those who granted (sic) had committed gross irregularities.
11. While, therefore, not accepting the challenge to the orders of reversion on the peculiar circumstances noticed, we direct that no recovery shall be made from the amounts already paid in respect of the promotional posts. However, no arrears or other financial benefits shall be granted in respect of the period concerned."
(Emphasis supplied)
(xv) It has been held by the Hon'ble Supreme Court in case of Col. B.J. Akkara (Retd.) Vs. Government of India & others, reported in (2006) 11 SCC 709, especially in paragraph nos. 27, 28, 29, 30, which read as under:
"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 761999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, 8 Union of India v. M. Bhaskar and V. Gangaram v. Regional Jt. Director):
(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.
29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to inservice employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 761999 till the issue of the clarificatory circular dated 1192001. Insofar as any excess payment made after the circular dated 1192001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made.
30. A faint attempt was made by the learned Additional Solicitor General appearing for the respondents to contend that all such wrong payments could be recovered and at best the pensioners may be entitled to time or instalments to avoid hardship. No doubt in Union of India v. Sujatha Vedachalam this Court did not bar the recovery of excess pay, but directed recovery in easy instalments. The said decision does not lay down a principle that relief from recovery should not be granted in regard to emoluments wrongly paid in excess, or that only relief in such cases is grant of instalments. A direction to recover the excess payment in instalments or a direction not to recover excess payment, is made as a consequential direction, after the main issue relating to the validity of the order refixing or reducing the pay/allowance/pension is decided. In some cases, the petitioners may merely seek quashing of the order refixing the pay and may not seek any consequential relief. In some cases, the petitioners may make a supplementary prayer seeking instalments in 9 regard to refund of the excess payment if the validity of the order refixing the pay is upheld. In some other cases, the petitioners may pray that such excess payments should not be recovered. The grant of consequential relief would, therefore, depend upon the consequential prayer made. If the consequential prayer was not for waiving the excess payment but only for instalments, the court would obviously consider only the prayer for instalments. If any decision which upholds the refixation of pay/pension does not contain any consequential direction not to recover the excess payment already made or contains a consequential direction to recover the excess payment in instalments, it is not thereby laying down any proposition of law but is merely issuing consequential direction in exercise of judicial discretion, depending upon the prayer for consequential relief or absence of prayer for consequential relief as the case may be, and the facts and circumstances of the case. Many a time the prayer for instalments or waiver of recovery of excess is made not in the pleadings but during arguments or when the order is dictated upholding the order revising or refixating the pay/pension. Therefore, the decision in Sujatha Vedachalam will not come in the way of relief being granted to the pensioners in regard to the recovery of excess payments."
(Emphasis supplied) (xvi) It has been held by this Court in the case of Laxman Prasad Gupta v. The State of Jharkhand & ors., as reported in 2008(3) JCR 655 (FB), at paragraph no. 20, as under:
"20. In view of the above discussion, we come to the following conclusion. To sum up:
"In the light of the absence of any material to show that the excess amount was received by the petitioner on misrepresentation, collusion, fraud or negligence, the said excess amount cannot be recovered out of the retiral dues, after retirement, without following the procedure contemplated under Rule 43(b) of the Bihar Pension Rules. In this case the said procedure, which is mandatory, has not been followed. Therefore, the action of the respondents for recovery of the amount from the retiral dues is not valid in law."
(Emphasis supplied) (xvii) It has further been held by this Court in the case of Janardan Prasad Saha & Anr. v. State of Jharkhand & Ors., as reported in 2008 (4) JCR 142, at paragraphs 2 and 4, as under:
"2. Learned counsel for the petitioners submitted that the order for revision of the petitioners' pay was issued by the respondentsBank and there was no representation/ misrepresentation or fraud played by the petitioners for obtaining the said revised scale. The said amount, which was paid to the petitioners by the Bank towards the arrears of salary on the basis of the revision of the pay scale, cannot be recovered/adjusted from the retiral benefits of the petitioners. There is complete bar for such adjustments. The petitioners are not liable to refund the aid amount, even if subsequently the order of revision of pay was cancelled. Learned counsel placed reliance on a decision of the Supreme Court rendered in Sahib Ram v. The State of Haryana and others, 1994 (5) 10 SLR 753 and a Full Bench decision of this Court in Laxman Prasad Gupta v. The State of Jharkhand and others W.P. (S) No. 3793/2004 reported in 2008 (3) JCR 655 (FB): JLJR 2007 (4) 459.
4. I have heard learned counsel for the parties and considered the facts and materials on record as also the judicial pronouncements. In Sahib Ram case (supra), the Supreme Court has specifically held that any amount paid to an employee without his misrepresentation cannot be recovered. In Laxman Prasad Gupta case (supra), a Full Bench of this Court has held that after retirement, there is no relationship of employer and employee between the parties and the recovery out of the retiral dues cannot be made, except by following the due procedure established by law. No contrary rule or decision has been produced on behalf of the respondents."
(Emphasis supplied) (xviii) It has been held by the Hon'ble Supreme Court in case of State of Bihar & Others Vs. Pandey Jagdishwar Prasad, reported in (2009) 3 SCC 117, especially in paragraph nos. 16, 19, 23 and 24, which read as under:
"16. Moreover, for the sake of argument, even if we consider that the respondent had fraudulently entered another date of birth in his service book, as had been alleged, it should have come to the notice of the authorities during his course of service, and not after he had attained the age of superannuation after the expiry of the date mentioned in the service book which was based on the affidavit of the respondent. To the contrary, none of the officials responsible had noticed this during his service period, even during his time of promotions when the service book was required to be inspected by the officials. Therefore, it clearly points out to the gross negligence and lapses on the part of the authorities concerned and in our view, the respondent cannot be held responsible to work beyond his date of birth as mentioned in the matriculation certificate when admittedly in the service book after the affidavit, some other date of birth was also evident.
19. It is not needed for this Court to verify the veracity of the statements made by the parties. If at all the respondent entered the second date of birth at a subsequent period of time, the authorities concerned should have detected it and there should have been a detailed enquiry to determine whether the respondent was responsible for the same. It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee.
23. Without going into the question whether the appellant was justified after completion of two years from the actual date of retirement to deduct two years' salary and other emoluments paid to the respondent, we may say that since the respondent had worked during that period without raising any objection from the side of the appellant and the appellant had got works done by the respondent, we do not think that it was proper at this stage to allow deduction from his retiral benefits, the amount received by him as salary, after his actual date of retirement.
24. Considering the fact that there was no allegation of misrepresentation or fraud, which could be attributed to the 11 respondent and considering the fact that the appellant had allowed the respondent to work and got works done by him and paid salary, it would be unfair at this stage to deduct the said amount of salary paid to him. Accordingly, we are in agreement with the Division Bench decision that since the respondent was allowed to work and was paid salary for his work during the period of two years after his actual date of retirement without raising any objection whatsoever, no deduction could be made for that period from the retiral dues of the respondent ."
(Emphasis supplied) (xix) This Court in the case of Ramchandra Singh v. State of Jharkhand & ors., as reported in 2009 (3) JCR 455 has also taken into consideration the ratio laid down in the case of Laxman Prasad Gupta (supra). (xx) It has been held by the Hon'ble Supreme Court in case of Syed Abdul Qadir and Others Vs. State of Bihar and Others reported in (2009) 3 SCC 475, especially in paragraph nos. 57, 58, 59, 60 and 61, which read as under:
"57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if
(a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.
59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counteraffidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.
12
60. Learned counsel also submitted that prior to the interim order passed by this Court on 742003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some instalments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them.
61. In the result, the appeals are allowed in part; the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellant teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR 22C would apply to the appellant teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of secondary schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment."
(Emphasis supplied) (xxi) It has been held by the Hon'ble Supreme Court in case of Paras Nath Singh Vs. State of Bihar & Others reported in (2009) 6 SCC 314, especially in paragraph nos. 4 & 5, which read as under: "4. Having heard the learned counsel for the parties and considering the fact that the State authorities had allowed the appellant to work for about 10 years and paid the salary at the enhanced rate, in which the appellant had no role to play except that he had given an undertaking to the authorities that in the event his first timebound promotion was cancelled, in that case, he would be bound to refund the same.
5. Having considered the fact that the appellant was only a Class IV employee in the State of Bihar and almost an illiterate person and did not know the implications of giving such undertaking and in the absence of any fraud and misrepresentation attributed to the appellant and the amount being not so excessive, in particular Rs 1,01,529.50, out of which certain amount has already been recovered from the salary of the appellant by the State authorities, we are of the view that a lenient view should be taken and the amount already paid by the State authorities to the appellant shall not be recovered. However, whatever amount that has already been recovered, shall not be paid back to the appellant."
(Emphasis supplied) In view of the aforesaid decisions, it appears that even if the salary is paid by mistake by the respondent authority to its employee, the same cannot be recovered, especially when the employee has already been retired. The employee is never fetching salary/wages on his own. Salary bill is to be prepared. Thereafter, it is to be sanctioned by high ranking 13 officers. Thereafter salary is to be paid to the concern employee. Mistake in calculation of salary, if any, lies on the part of the respondents. No action has been taken by the respondentBoard against its own employees, who are high ranking officers and who have done the mistake and sanctioned the bills of salary.
(xxii) I hereby quash and set aside the order at Annexure2 dated 12th March, 2008 to the extent to which this order deducts the amount of Rs. 71,820/ from the amount of gratuity, legally payable to the petitioner. Thus, without any deduction, the amount of gratuity will be paid to the petitioner. I also, hereby, quash and set aside the order at Annexure3 dated 11th July, 2006 and the order at Annexure3/1 dated 11th August, 2006 and the amount, which is already deducted by virtue of these orders, shall be refunded to the petitioner within a period of two weeks from the date of receipt of a copy of the order of this Court, failing which, it will be refunded to the petitioner with the Simple Interest at the rate of 5% per annum from the date on which the amount is deducted, till the actual payment is made and the amount of interest will be deducted from the salary of the erring officer(s). Initially, amount of interest will be paid by the respondentJharkhand State Electricity Board and, thereafter, it will be deducted from the salary of the erring officer(s), after holding necessary inquiry.
5. This writ petition is, hereby, allowed with a cost of Rs. 10,000/ (Rupees ten thousand only), which will be given to the petitioner by the respondents, within a period of two weeks from the date of receipt of a copy of the order of this Court.
(D.N. Patel, J.) Ajay