Madhya Pradesh High Court
Smt. Sushma Pyasi vs The State Of Madhya Pradesh on 5 March, 2013
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.15732/2012
Smt. Sushma Pyasi
Vs.
The State of M.P. & others
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Present : Hon'ble Shri Justice K.K. Trivedi
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Shri Vaibhav Tiwari, learned Counsel for the petitioner.
Shri Lalit Joglekar, learned Panel Lawyer for the
respondents-State.
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O R D E R
(05/03/2013) This writ petition under Article 226 of the Constitution of India is directed against the order dated 22.09.2009 by which while sanctioning the final payment of death-cum- retirement gratuity to the petitioner on account of death of her husband, an amount of Rs.1,95,289/- has been deducted on the ground that the husband of the petitioner was in the employment of Police Department and has worked for almost 35 years. However, the husband of the petitioner while in service, died on 10.12.2008. At the relevant time the husband of the petitioner was working as Additional Superintendent of Police, Damoh. It was necessary on the part of the respondents to disburse the final payment of death-cum-retirement gratuity. Timely the action was not taken and ultimately when the same was released on 22.09.2009, it was said that an amount of Rs.1,95,289/- was to be recovered from the said amount being excess payment of salary to the late husband of the petitioner. A demand was raised by the petitioner asking the details of alleged excess payment and vide a memo dated 12.07.2012 the petitioner was informed that the 2 husband of the petitioner was paid an excess amount on account of improper pay fixation in between April, 1981 to November, 2008. However, no further details were given except the chart annexing with the said memo where the calculation was shown as to how it was assessed that excess payment was made to the husband of the petitioner. It is, thus, contended in the petition that such an action on the part of respondents is bad in law. Without affording opportunity of hearing no amount was to be recovered from the gratuity payable to the petitioner. This being so, it is claimed that the order impugned directing recovery from the gratuity payable to the petitioner is liable to be quashed.
2. On receipt of the notice of this writ petition, the respondents have filed their return. They have contended that in fact the husband of the petitioner while was in service, was granted certain pay fixation. In fact the family pension case of the petitioner was prepared and sent for sanction. The respondent No.4 took an objection with respect to the improper fixation of pay of the husband of the petitioner and directed that the revised fixation of pay be done and case be again submitted for payment of gratuity to the petitioner. Since this was intimated vide memo dated 03.07.2009, objections were looked into, removed and thereafter the case was sent for payment of gratuity to the petitioner. In terms of the provisions made under the M.P. Civil Services (Pension) Rules, 1976, such an amount paid in excess to the husband of the petitioner was required to be recovered and, therefore, the said amount has been deducted from the gratuity. It is put forth that in view of the law laid-down by the Apex Court in the case of Chandi Prasad Uniyal and others vs. State of Uttarakhand and others, (2012) 8 SCC 417, if such an amount is recovered from the gratuity payable to the 3 petitioner, no wrong is committed by the respondents and, therefore, the writ petition is liable to be dismissed.
3. Heard learned Counsel for the parties at length and perused the record.
4. It is not disputed by the respondents that the husband of the petitioner was in continuous service of the respondents on the post of D.S.P. Even according to them, the salary of the husband of the petitioner was required to be revised w.e.f. 01.09.1981 at Rs.1090/- per month but instead of revising the salary in the said stage, it was fixed at Rs.1,290/- per month. It is also not disputed by the respondents that throughout the service of the husband of the petitioner, various pay commission recommendations were accepted, the pay revision rules were made and accordingly the salary of the husband of the petitioner was revised. It is also not disputed by them that all such revision was done not by the husband of the petitioner himself but by the departmental authorities. It was not the folly on the part of the husband of the petitioner if on revision his pay was revised on a wrong stage. That being so, it was not correct on the part of the respondents to make recovery of huge amount from the gratuity payable to the widow of such an officer after the death of officer. Nothing has been explained by the respondents as to why throughout the services of the husband of the petitioner this mistake or error could not be pointed out. The pay revision is always done after due verification of fixation of pay by the Joint Director, Treasury & Accounts. Unless such an approval is granted, the salary in the revised pay scale is not to be disbursed. This being so, without there being a justified reason, holding that a Government officer or servant has received the money intentionally knowing fully well that he was not entitled to such payment of money, 4 same cannot be recovered. At any rate, the husband of the petitioner cannot be held responsible for that.
5. There were certain circumstances in which the Apex Court in the case of Sahib Ram vs. State of Haryana & others, 1995 Supp (1) SCC 18, has held that the employee alone will not be held responsible for receiving the amount in excess to his entitlement unless certain facts relating to misrepresentation etc. are proved. This particular aspect was again examined by this Court in the case of Mahendra Kumar Dubey vs. State of M.P. & others,W.P. (S) No.3075/2003, decided on 19.12.2008, relying on which a decision was rendered by this Court in the case of Ram Siya Kanojia vs. State of M.P. and others, 2013 (1) MPHT 447. This Court has taken note of one more aspect which was considered by the Apex Court in the case of Shyam Babu Verma & others vs. Union of India & others, (1994) 2 SCC 521, and has categorically held that in such circumstances the recovery of the alleged excess payment from such employees was not to be made. Learned Panel Lawyer for the respondents has heavily placed his reliance in the case of Chandi Prasad Uniyal (supra) and has contended that in no circumstances the law laid-down by the Apex Court in the aforesaid cases would be applicable as the entire consideration has been done by the Apex Court in the case of Chandi Prasad Uniyal (supra) and all earlier laws as laid-down by the Apex Court in the case of Shyam Babu Verma (supra) and Sahib Ram (supra) have been watered down. It is put forth that the recovery could be made from the gratuity payable to the petitioner as it was proved that the amount of salary was paid in excess to the entitlement of the husband of the petitioner during the service period of the husband of the petitioner.
56. After due consideration of the law laid-down by the Apex Court, this Court is of the opinion that the law laid- down by the Apex Court in the case of Shyam Babu Verma (supra) and Sahib Ram (supra) as also the law laid- down in the case of Syed Abdul Qadir vs. State of Bihar, (2009) 3 SCC 475, have not been completely overruled. In paragraphs 12, 13, 14 and 15 of the report in the case of Chandi Prasad Uniyal (supra), these situations have been examined. The same are reproduced for ready reference :
"12. Later, a three-Judge Bench in Syed Abdul Qadir case, after referring to Shyam Babu Verma, Col. B.J. Akkara etc. restrained the department from recovery of excess amount paid, but held as follows:
"59. Undoubtedly, the excess amount that has been paid to the appellants 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 counter affidavit, 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."
(emphasis added) We may point out that in Syed Abdul Qadir case such a direction was given keeping in view the 6 peculiar facts and circumstances of that case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them.
13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
14. We are concerned with the excess payment of public money which is often described as "tax payers' money" which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the Government officers may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee.
Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
715. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered."
7. The Apex Court itself has said in the aforesaid case that barring for few exceptions of extreme hardship but not as a matter of right, exemption can be granted from the recovery of the amount of excess payment to any employee. Here in the case in hand, employee is not getting anything. Only his widow and dependants will get the benefit of gratuity because of untimely death of the Police Officer. If any alleged payment was made for such a long period right from 1981 up to 2008 and it was never noticed by all those authorities, who were responsible to check the same, it cannot be said that exemption from recovery would not be available to the petitioner. On the other hand it will be a sheer hardship to the petitioner if such huge amount is recovered from the gratuity payable to her, that too because of faults of the officers of the respondents. It was the duty on the part of the respondents-authorities to get the pay fixation of the husband of the petitioner finalized as soon as the same was made and the same was required to be pre-audited and post-audited by the competent authority of the respondents. These are the specific provisions made in the Financial Code issued by the State Government in exercise of its powers under the Financial Act. It is not indicated by the respondents that at any point of time the pay of the husband of the petitioner after its revision was finalized. Thus, for such a fault on the part of the officers of the respondents, the petitioner cannot be put to great hardship, that too after the death of her husband.
88. In view of this, as has been categorically held by the Apex Court in the case of Chandi Prasad Uniyal (supra), recovery of alleged excess payment of salary to the late husband of the petitioner cannot be made from the gratuity payable to the petitioner. Such part of the order impugned is hereby quashed. However, respondents would be at liberty to conduct an enquiry with respect to the misconduct committed by the officials of the respondents in not fixing the salary of the husband of the petitioner timely in appropriate manner, getting it approved and finalized from the competent authority, resulting in loss to the public exchequer. The State Government would be at liberty to make recovery of such amount from the concerned officers after fixing the responsibility on them, in accordance to law. However, the amount recovered from the gratuity payable to the petitioner be refunded to her with simple interest at the rate of 6% per annum immediately.
9. The writ petition is allowed to the extent indicated herein above. There shall be no order as to costs.
(K.K. Trivedi) Judge Skc