Central Administrative Tribunal - Lucknow
Brij Nandan vs Union Of India on 14 October, 2022
Page 1 of 21
CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
OA No.332/00431/2018
Order Reserved on: 22.7.2022
Order Pronounced on:14.10.2022
CORAM
HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A)
Brij Nandan, aged about 61 years, S/o Late Shri
Hetram, R/o E-44, Himgiri Colony, Kanth Road,
Moradabad.
....Applicant.
By Advocate : Shri Praveen Kumar
Versus
1. Union of India, through the Secretary, Ministry of
Information & Broadcasting, Govt. of India, A Wing Shastri
Bhawan, New Delhi-110001.
2. The Chief Executive Officer Pasar Barti Secretariat, 7th
Floor, Copernicus Marg, New Delhi.
3. The Director General, All India Radio, Akashwani
Bhawan, Sansad Marg, New Delhi.
4. The Sr. Accounts Officer, Pay & Accounts Office, All
India Radio, (I & B) 18 Vidhan Sabha Marg, Lucknow.
5. The Superintending Engineer (HPT), All India Radio,
Aligarh.
......Respondents.
By Advocate: Smt. Prayagmati Gupta
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CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I
ORDER
Per HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A)
This OA arises from the order dated 01.06.2016 of the
respondents directing therein recovery of Rs. 2,74,249/- as
per the due drawn statement having been paid excess to the
applicant.
2. Per applicant, facts are that he was working in Doordarshan
on the post of Administrative Officer from which he retired on 30/11/2016 while receiving grade pay of Rs. 4600/. That just before retirement, vide order 01/06.2016, pay of the applicant was revised and by means of due drawn statement, a recovery of Rs. 2,74,249/- has been worked out (Annexure-1). Aggrieved, the applicant filed a representation vide 06.09.2016 submitting that the recovery order is against the circular of DoP&T of 02.03.2016 which has taken into account the judgment passed by the Hon'ble Apex Court in the matter of Rafiq Masih wherein, it is provided that no recovery shall be made from a retiring / retired person as per the conditions laid down in the judgment therein. However, there was no succor and vide order dated 24.10.2016, the respondent No 5 directed respondent No. 4 to make the said recovery from the gratuity of the applicant (Annexure-A-4). That the applicant has further filed a representation in 2018 with regards to the same issue, however, to no avail. Hence the OA. The applicant has relied on Page 3 of 21 CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I the case of one Shri K. S. Safia who had approached the Ernakulum Bench of CAT in which vide its order dated 30.7.2018 (Annexure A-7) relief had been granted.
3. The respondents have repelled the claim of the applicant on the following grounds:
(i) That the applicant was himself working and incharge of the accounts and administrative officer thereupon and he himself therefore, fixed his pay including gratuity etc and was therefore duty bound to fix his emoluments correctly and so not having done so, he cannot now absolve himself seeking protection of Masih [supra].
(ii) That per law laid down by the Hon'ble Apex Court in the matter of High Court of Punjab and Haryana and Others Vs. Jagdev Singh in Civil Appeal No. 3500/2006, the impugned order is in accordance with law.
Hence there is no merit in the O.A. which should therefore, be dismissed.
4. There is Rejoinder Affidavit anda counter reply thereof by the respondents in which pretty much similar points are reiterated as in the OA and the CA.
5. Heard the learned counsel for the parties at length and perused all the pleadings filed carefully along with the documents therein. The key issue which falls for consideration is Page 4 of 21 CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I the vires of the recovery orders with regards to opportunity of hearing and in light of the law laid down in rival contentions of the parties.
6. As regards the issue of opportunity of hearing, it is clear that the key order which finally directed deposit of the Rs 2,74,249/-
by way of recovery is the crucial order which needs to be addressed in order to provide relief to the applicant with regards to the impugned recovery. Now, this order was not passed suddenly one fine morning sun. The whole process of recovery was first initiated vide the Due Drawn statement dated 01/06/2016 [Annexure A-1] in pursuance of which the applicant was directed vide order 01/09/2016 to deposit the amount [Annexure A-2]. The applicant submitted a representation thereafter dated 06/9/2016 whereupon after consideration of the same, the order of 24/10/2016 was passed leading to the case of the applicant coming to this Tribunal disputing the recovery through the order finally made after due consideration of the representation. Thus, it cannot be said that the applicant was not given opportunity of hearing or representation before the final order of recovery was passed by the respondents. Hence the point of adequate opportunity of hearing is settled in all fairness against the applicant.
7. As regards the vires of the order per the rival contentions; in order to adjudicate the issue, it is important to first of all Page 5 of 21 CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I reproduce the relevant portion of the Hon'ble Apex Court order in the matter of Jagdev Singh and Rafiq Masih. The same are reproduced herein under:
State Of Punjab &Ors vs Rafiq Masih (White Washer) on 18 December, 2014 Bench: Jagdish Singh Khehar, Arun Mishra "REPORTABLE" IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 11527 OF 2014 (Arising out of SLP(C) No.11684 of 2012):
"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) 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..."Page 6 of 21
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8. It is quite clear that in the case of Jagdev Singh, the respondents therein had on own accord as per the insistence of the Government therein recorded the consent of the respondents with regards to deduction of any excess amounts paid due to the pay fixation. In the present case, there is no such thing accept the assertion of the respondents that the applicant was himself incharge of pay fixation and therefore abinitio guilty of wrong pay fixation which he cannot now disown. The point being tried to be to made by the respondents is that there was nexus between the applicant fixing his pay wrongly and his being incharge on the same post.
9. In this connection it would be useful to analyse the issue from the point of the applicant having knowingly fixed his pay erroneously on the higher side and so guilty of fraud to benefit self. In this case the Masih judgement has to be weighed in carefully. In Vijay Prakash Sharma (Kanoongo) vs State Of U.P.& Others on 11 January, 2018, WRIT - A No. - 37932 of 2000, the Hon' High Court Allahabad ['Kanoongo' - referred to hereafter] has laid down as under:
6. In substance, there are two submissions, which have to be considered by this Court:
(1) Whether recovery of an amount, alleged to have been paid in excess, to an employee can not be affected by the employer, unless the (the employer) can show that there is an element of fraud or misrepresentation on the part of employees concerned. In other Page 7 of 21 CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I words, if there is no allegation of fraud or misrepresentation on the part of employee, whether an amount, paid in excess to an employee, can be recovered?....
7. I propose to consider question no. 1 first. Petitioner has sought to fortify his submissions that unless there is an element of fraud or misrepresentation on the part of concerned employee, a recovery of alleged excess paid amount cannot be effected, placed reliance on certain authorities of this Court as also the Apex Court which are a Division Bench decision of this Court in B.N. Singh Vs. State of U.P. and another 1979 ALJ 1184, a Full Bench judgment in Surya Deo Mishra Vs. State of U.P. 2006 (1) UPLBEC 399 and Apex Court's decisions in Shyam Babu Verma &Anr. Vs. Union of India &Ors. 1994(2) SCC 521, Gabriel Saver Fernandes &Ors. Vs. State of Karnataka &Ors 1995 Suppl.(1) SCC 149, Mahmood Hasan Vs. State of U.P. JT 1997(1) SC 353, State of Karnataka &Anr. Vs. Mangalore University Non-Teaching Employees' Association &Ors. 2002(3) SCC 302, Purushottam Lal Das &Ors. Vs. State of Bihar &Ors. 2006 (10) SCALE 1999. There are some other judgments of this Court which have followed the above authorities.
8. However, I find that there are certain direct authorities of Apex Court looking into this very question and taking a view otherwise and in the light of those binding authorities of Apex Court, which are of recent period also, I find it difficult to follow the authorities cited by the petitioner and, in my view, the later decisions of the Apex Court dealing with this question directly is a law binding on this Court under Article 141 of the Constitution of India and, therefore, I have no option but to follow the same, particularly, when most of the authorities of Apex Court cited at the bar on behalf petitioner has also been considered, discussed and distinguished or explained in the later authorities of the Apex Court. I propose to refer the decisions of the Apex Court which have taken a view otherwise holding that an amount, if has been wrongly paid to an employee and he is not entitled for the same, recovery of such amount cannot be said to be bad except of certain very limited exceptions which have also been described therein.
9. The first is State of Haryana and others Vs. O.P. Shrama and others AIR 1993 SC 1903. There an ad hoc interim relief was granted in 1972 by the Government on slab basis pending fixation of additional dearness allowance. No formula with reference to cost of living was adopted while granting ad hoc relief. When the formula for grant of additional dearness allowance of the cycle of increase by 8 points in the Consumer Price Index was adopted by the State Government, it realised that the ad-hoc interim relief was in excess by Rs. 9.40 to Rs. 45 per month depending on the pay-slab of a Government servant. It then decided to adjust increase rather Page 8 of 21 CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I than order lump sum recovery of the excess amount, in subsequent emoluments, payable to the employees, instead of recovering entire amount. Such order was passed in March 1974. The Court did not find order bad, illegal, arbitrary, unreasonable or unfair. It held that the Government has rightly chosen to recover excess amount in a phased manner.
10. In Union of India Vs. Smt. Sujatha Vedachalam and another AIR 2000 SC 2709, an employee was working as Senior Clerk (Accounts) in the pay scale of Rs.1400-2600. On his personal request, he was transferred from Nagpur to Bangalore. One of the conditions of transfer was that the employee shall technically resign from the post held at Nagpur and join as Direct Recruit on the post of Clerk at Bangalore. At the time of transfer, basic pay drawn by the employee at Nagpur in the cadre of Senior Accountant, was Rs. 1260/-. When the employee joined on the lower post of clerk, by mistake, her salary was fixed at basic pay of Rs.1250/- per month instead of Rs. 1070/-. On detection of mistake, pay was refixed at the stage of Rs. 1070/- by order dated 1.12.1995. The order(s) of recovery and refixation were challenged before Central Administrative Tribunal. Employee's claim was allowed by the Tribunal and Government's Writ Petition was dismissed by High Court. The Apex Court relying on its earlier decision in Comptroller & Auditor General of India Vs. Farid Sattar, AIR 2000 SC 1557, set aside both the judgments and upheld G.O. of refixation and recovery, with the only indulgence that excess pay may be recovered in easy instalments. The Court herein upheld recovery and permitted instalments.
11. Next is Col. (Retd.) B.J. Akkara Vs. Government of India (2006) 11 SCC 709 wherein the law relating to recovery of excess payment from employees was considered. The Court held that cases wherein excess payment has not been allowed to be recovered from employees' are not founded because of any right in the employees but in equity and in exercise of judicial discretion to relieve employees from the hardship that may be caused, if recovery is implemented. Such a discretion is exercised by the Court and one of the reasons therefore, has been, as that the employee was receiving excess payment for a long period and utilising the same, genuinely believing that he is entitled to it, but where the employee had knowledge that the payment so received was in excess of what was due and the error was detected within a short period of wrong payment, Court would not give relief against such recovery. It is said that these matters lie in the realm of judicial discretion of the Court.
12. Then comes Registrar Cooperative Societies Vs. Israil Khan and others 2010(1) SCC 440 wherein recovery of excess amount paid to employees of cooperative society was challenged relying on Page 9 of 21 CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I Apex Court's decision in Sahib Ram Vs. State of Haryana 1995 Supp.(1) SCC 18 and Shyam Babu Verma Vs. Union of India (Supra). A two Judges Bench of Apex Court, consisting of Hon'ble R.V. Raveendran and Hon'ble P. Sathasivam said in para 6 of the judgment that there is no principle that any excess payment to an employee should not be recovered back by the employer. The Court observed that in certain cases merely a judicial discretion has been exercised by Apex Court to refuse recovery of excess wrong payments of emoluments/allowances from employees on the ground of hardship where the following conditions were fulfilled:
(a) The excess payment was not made on account of any misrepresentation or fraud on the part of employee; and
(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.
13. Now the Apex Court in Chandi Prasad Uniyal and others vs. State of Uttarakhand and others, 2012(3) UPLBEC 2057 has said that there is no such principle of law that wrong payment made to an employee can be recovered only in those cases where he is guilty of fraud and misrepresentation, and not otherwise. The Court has distinguished all its earlier decisions in Shyam Babu Verma Vs. Union of India (Supra), Sahib Ram v. State of Haryana (Supra), State of Bihar v. Pandey Jagdishwar Prasad [(2009) 2 SCC 117] and Yogeshwar Prasad and Ors v. National Institute of Education Planning and Administration and Ors. [(2010) 14 SCC 323]. In paragraphs 9, 15, 16 and 18 of the judgment the Court has said:
"9. We are of the considered view, after going through various judgements cited at the bar,hat this court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular /wrong fixation of pay be recovered."
"15. 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."
"16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs Page 10 of 21 CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situation. 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 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 of 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."
"18. Appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary / pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order the excess payment made be recovered from the appellant's salary in twelve equal monthly instalments starting form October 2012. The appeal stands dismissed with no order as to costs. IA nos. 2 and 3 are disposed of."
14. The Apex Court further held that decision in Shyam Babu Verma (Supra), Sahib Ram (Supra), Yogeshwar Prasad (Supra), etc. are all decided on their own facts and do not lay down any principle of law, restraining recovery of excess payment of salary from the concerned employee. On the contrary, in para 17 of the judgment the Court said that except few instances pointed out in Syed Abdul Qadir and others vs. State of Bihar and others (2009) 3 SCC 475) and in Col. B.J. Akkara (Supra), excess payment due to wrong/irregular pay fixation can always be recovered.
15. There is a Division Bench judgement of this Court also in State of U.P. & others Vs. Vindeshwari Prasad Singh (Special Appeal No.503 of 2008), decided on 28th July, 2009. The Court formulated two questions, as under:
"(i) Whether any financial benefit given to an employee by mistake without any misrepresentation or fraud on his part can be recovered from him later on after his superannuation from service?Page 11 of 21
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(ii) Whether before directing for recovery of the amount paid in excess, the employee concerned is required to be given notice and opportunity of hearing?"
16. Having said so, the Court said:
"Having given my most anxious consideration, neither on first principle nor precedent, I am prepared to accept the broad submission that excess amount paid to an employee by mistake cannot be recovered after his superannuation only on the ground that while obtaining monetary benefit, it has not made false representation or played fraud."
17. Further, the Court referred to Section 72 of Indian Contract Act and thereafter said:
"From a plain reading of the aforesaid provision it is evident that a person to whom money has been paid by mistake is obliged to return the same. In my opinion an employee not entitled to receive monetary benefit gets it, it becomes a case of unjust enrichment and restitution in case of unjust enrichment is an accepted principle for ensuring justice in appropriate cases. In my opinion in a case of mistake clear, plain and simple, excess amount paid to and employee can be recovered after retirement despite the fact that he had not made any misrepresentation or played fraud. There is no legal impediment in ordering for recovery from a retired employee such monetary benefits, which he had received on account of mistake and not entitled to such benefits. However, I would hasten to add that a mistake, pure and simple though justifies recovery of excess amount paid but in a case in which two interpretations are possible and one was consciously approved and benefit given to an employee by the competent authority but such decision in the ultimate analysis and long process of reasoning, later on is found incorrect, it may be possible to correct the same at a latter stage but the amount already paid in the light of the earlier decision is not fit to be recovered. In other wards, excess payment is made upon reasonably possible view taken by competent authority without fraud or misrepresentation, the excess payment cannot be recovered. Excess payment is possible to be made by the order of the employer. It is also possible by interim or final order of the Court, which ultimately is found to be erroneous. In case of former, a recovery is permissible under the condition enumerated above. However, in latter case, it depends upon the facts and circumstances of each case and it is primarily within the discretion of the Court." (emphasis added)
18. The Court also relied upon an earlier Division Bench Judgement in Union of India Vs. Rakesh Chandra Sharma and others 2004 (1) ESC (Allahabad) 455, observing that there is no Page 12 of 21 CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I law of universal application, restraining the employer from recovering the extra amount paid to an employee beyond entitlement. The Court also observed that rectification of mistake is not only permissible but desirable otherwise system/requirement of auditing of accounts would be rendered nugatory.
19. These authorities clearly show that there is no right of petitioner in law or otherwise that admitted excess payment wrongly made cannot be recovered. As a matter of right, petitioner cannot contend that though he had been paid certain amount wrongly in excess to what was due to them, yet it cannot be recovered by the administration.
20. Moreover, the above argument also pre-supposes an admission on the part of petitioner that he was not entitled to the payment made in excess which is now being sought to be recovered. It is not the case that petitioner was not aware or would not have been aware as to what would have been the correct pay scale or the allowance etc., which he would has been entitled to, but he continued to receive salary. If the fixation would have been made in a lower pay scale, it has always been seen that employee concerned immediately raises a protest that he is being paid wrong amount or lesser amount but when an employee receive more than the amount to which he is entitled, he does not inform the authorities concerned or bring this fact to their notice. It shows a tacit acquiescence on the part of employee in the wrong committed by administration to which he was the beneficiary and became part and parcel to the administration in this regard.
21. I may also add at this stage that this entire issue came to be considered by a Larger Bench in State of Punjab and others Vs Rafiq Masih and others, (2014) 8 SCC 883 and therein Court observed that in certain circumstances it would not be equitable or justified to recover the amount if paid in excess to an employee and in this regard Court said:
"It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) 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.Page 13 of 21
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(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."
22. In in the present case wrong payment said to be made to petitioner not on account of any wrong fixation etc. but petitioner was admittedly a Class-III employee and was not entitled for claiming expenses by traveling in a private Car or First Class in Railway. Therefore, claim made by petitioner under aforesaid head even if not on account of any fraud or misrepresentation but it is on account of act of petitioner himself which was wrongly accepted and payment was made, hence circumstances which are stated in Larger Bench judgment in Rafiq Masih (supra), are not attracted in the case in hand.
23. There is one more aspect to which this Court would like to consider this matter.
24. The excess money received by petitioner is not anybody's private money but it has come from the coffer of public exchequer. It is a public money contributed by tax payers and hard earned money of public at large. If an excess money is allowed to be retained by a person who is not authorised, that would result in denying user and consumption of that money other than the purpose for which it is meant.
25. Administration, whether in executive or judiciary, holds public funds in trust and with responsibility of spending it strictly in the manner they are required to do so and not to enrich anyone or waste money by its unmindful, unauthorised and illegal acts. If any such thing has happened even if unknowingly and indeliberately, the administration is legally, morally and by any standard of civilised society, is bound to restore back such wasteful expenditure to the public exchequer so that it may thereafter be utilised in the manner and for the purpose, so prescribed. Any attempt on the part of administration to allow an employee to retain certain money, which the Administration has wrongly paid to him, though the employee was not entitled to the same, or, any act on the part of administration, in not realising the said amount from the employee, is liable to be treated as breach of trust. Such Page 14 of 21 CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I decision would amount to not only waste of public money but also an attempt to perpetuate an illegal act. It is not a private property to which one can show any attitude of charity and so called broad heart and magnanimity. This would be against any principle of administrative law. Simultaneously, an employee if retains something which he did not owe, he being also equally responsible to the public and public fund holding an office of trust, is bound to return/refund it.
26. In P.K. Chinnaswamy Vs. Government of Tamilnadu and others AIR 1978 SC 78, the Apex Court said that every public officer is a trustee and in respect of the office he holds and the salary and other benefits which he draws, he is obliged to render appropriate service to the State. Conversely, it would also be true that a Government official would be entitled to payment of only that amount, which he is entitled towards salary etc. under the relevant provisions, applicable to him, in the context of his status, position, rank , etc. If he has received or paid even by mistake, certain amount to which he was not entitled, it would amount to excess drawl of money unauthorisedly from public exchequer to which every Government official is a trustee and, therefore, whether mistaken or otherwise, no one is entitled to retain such unauthorised money belonging to public exchequer but, is under a legal and ethical obligation to return/refund the same, so that, it may be utilized for the purpose, it is made and decided by the competent authorities in budgetary allocation.
27. Every single penny constituting consolidated fund of India/State comes from hard earned money of tax payers and others. It has to be utilized strictly in the manner in which the competent authority i.e., the legislature has resolved and decided. No amount of public exchequer can be allowed to be squandered as a matter of charity or otherwise to be retained by a Government servant who is not entitled to obtain such money but by another Government Servant has been allowed to withdraw from public exchequer, may be, by his mistake or may be collusive mistake or otherwise.
28. This Court also tried to find out as to from which budgetary allocation excess money was paid to the employee and to which it can be adjusted. Since the allocated money is already identified and beyond that nothing could have been paid by anybody, no authority can be allowed to retain any amount which he has received unauthorisedly or on account of mistake of administration. It shall also amount to financial indiscipline and misuse of public fund. In the context of above decisions, I am clearly of the view that various authorities cited by the learned counsel for petitioner would not help him to claim that excess amount paid should not be recovered.
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29. In view of above discussion, It cannot be doubted, that, if admittedly some amount has been paid to an employee in excess to what he was entitled or payable to him, it can be recovered from him and the mere fact that the said payment was not due to any fraud or misrepresentation on the part of employee would make no difference. This question, therefore, is answered against the petitioner...." [EMPHAISIS SUPPLIED] As may be seen, this enthralling and comprehensive judgement takes into account Rafiq Masih and a galaxy of judgements in apposition and concludes that should there be fraud or misrepresentation chances then Masih may not apply. This is the crux here. In the present case the applicant himself was incharge for fixing pay and should have known the law - it cannot be a case that an employee does not know his own work - then the charges become too serious - the judge cannot feign that he does not know the law and ovessuasnovitsheppard - the sheppard not be knowledgeable about his sheep - and so, the applicant is differently situated as against a third person whose erroneous pay fixation is not in his own hands. The applicant has shown nothing convincing enough to disprove that he did not know the principles on which he fixed his own pay and so he cannot make this Tribunal also presume him having no mens rea in the pay fixation.
How can this Tribunal rule out the possibility of the applicant knowing the law - perhaps too much of it and Page 16 of 21 CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I advantageously placed to take ulterior advantage of it when opportunity knocked his door.
10. In fact, when examined closely the Rafiq Masih judgement also alludes to this prospect in the line -
"..where payments have mistakenly been made by the employer, in excess of their entitlement.."
The Masih judgement just for the record has not overruled the judgement delivered in the matter of Chandi Prasad Uniyal and this is evident in the use of the word
-mistakenly - in the beginning of the five conditions laid down subsequently in Masih. In fact this judgement citation above in the matter of Kanoongo [supra] also clear recalls the same as under -
"..13. Now the Apex Court in Chandi Prasad Uniyal and others vs. State of Uttarakhand and others, 2012(3) UPLBEC 2057 has said that there is no such principle of law that wrong payment made to an employee can be recovered only in those cases where he is guilty of fraud and misrepresentation, and not otherwise. The Court has distinguished all its earlier decisions in Shyam Babu Verma Vs. Union of India (Supra), Sahib Ram v. State of Haryana (Supra), State of Bihar v. Pandey Jagdishwar Prasad [(2009) 2 SCC 117] and Yogeshwar Prasad and Ors v. National Institute of Education Planning and Administration and Ors. [(2010) 14 SCC 323]. In paragraphs 9, 15, 16 and 18 of the judgment the Court has said:
"9. We are of the considered view, after going through various judgements cited at the bar,hat this court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular /wrong fixation of pay be recovered."
"15. 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 Page 17 of 21 CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I 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."
"16. 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 over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situation. 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 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 of 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."
"18. Appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary / pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order the excess payment made be recovered from the appellant's salary in twelve equal monthly instalments starting form October 2012. The appeal stands dismissed with no order as to costs. IA nos. 2 and 3 are disposed of."
More so, in Kanoongo [supra] it is further laid down that -
"...Therefore, claim made by petitioner under aforesaid head even if not on account of any fraud or misrepresentation but it is on account of act of petitioner himself which was wrongly accepted and payment was made, hence circumstances which are stated in Larger Bench judgment in Rafiq Masih (supra), are not attracted in the case in hand...."
11. The point is that only mistaken erroneous fixations are Page 18 of 21 CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I pardonable from recovery and not in those in which misrepresentation or fraud were lurking somewhere. It can be argued endlessly by the applicant that he had no knowledge of rules for pay fixation and there was not a nano gram of misrepresentation - but how does this Tribunal rule this out given the admitted fact that the applicant was the one respondents for fixing the erroneous pay in the first place. For the applicant - ignorantia juris non excusat - ignorance of law is no excuse. Hence the case at hand is a peculiar case in which Masih cannot be applied blind-folded as if pouring a judgement melt into a mold in a straight jacket manner. There is evidence of distinguishing the facts and this Tribunal cannot brush the facts under the convenient guise of misplaced justice. Dura lex sed lex - the law is hard but it is the law and insofar as this Tribunal is concerned - Lex tuavoluntasmea - the law is my light.
12. In fact the respondents should fix the responsibility of the delinquency also if necessary per disciplinary proceedings as observed by the Hon' High Court Madras in the matter of M.Janaki vs The District Treasury Officer on 19 June, 2019,DATED: 19.06.2019,CORAM: THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM,W.P.(MD) No.23541 of 2015, and M.P.(MD) No.1 of 2015reproduced hereunder:
Page 19 of 21CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I "..15. This Court has experienced many number of such litigations in the matter of fixation of scale of pay, wherein excess scale of pay and monetary benefits as well as arrears are paid to the employees with the http://www.judis.nic.in connivance and collusion of the officials concerned. Mostly at District level, the authorities competent are misguided by the subordinates as well as by few employees. Under those circumstances, excess arrears of pay are claimed and disbursed. Only few cases were identified by the Audit groups. There are large number of such complaints that excess claims are made with the collusion of the officials. Therefore, it is mandatory on the part of the State Government to collect all those excess payments paid from the tax payers' money and to safeguard the interest of the State as warranted under the Constitution of India. Excess payment paid cannot be allowed to lapse as it would cause financial loss to the State Exchequer. Such a course cannot be adopted and it is in violation of the constitutional principles.
16. This being the approach to be adopted, the State Government must issue a comprehensive / consolidated instructions to all the officials concerned stating that in the event of wrong or erroneous fixation of pay and payment of excess salary / pension, the officials, who all are responsible for such excess payment, must be held liable and the excess amount is to be recovered proportionately from them for the purpose of compensating the financial loss to the tax payers' money. In this regard, an urgent action is imminent. In this regard, a show-cause notice is to be issued to all such responsible officials and on receipt of explanation from them, the grounds http://www.judis.nic.in raised and the materials available are to be considered by the competent authorities and suitable orders are to be passed for imposing recovery proportionately on all the officials, who all are responsible for the excess payment and the financial loss occurred to the State Exchequer.
17. The competent authorities of the State Government are the custodian of the tax payers' money and they are the trustees.
Thus, in the event of any lapse, negligence or dereliction of duty in the matter of payment of excess salary / pension to the employees, then all these officials must be held responsible and liable for the financial loss occurred to the State Exchequer.
.....ii. The respondents are directed to conduct an enquiry in respect of such excess payments made to the writ petitioner and in the event of any error, lapse, negligence or dereliction of duty, then, all suitable actions are to be initiated against all the officials, who all are responsible and accountable for Page 20 of 21 CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I compensating the financial loss occurred to the State Exchequer by imposing recovery proportionately.
The DOPT in para -3 of its circular of : DoPT's OM No 18/26/2011-Estt (Pay-I) dated 06.02.2014 has ordained thus
-
"Whenever any excess payment has been made on account of fraud, misrepresentation, collusion, favoritism, negligence or, carelessness, etc., roles of those responsible for overpayments in such cases, and the employees who benefitted from such actions should be identified, and departmental/criminal action should be considered in appropriate cases.."
13. The point is also that DOPT itself seems to be in oblivion with regards to compliance of its own orders in the limited knowledge of this Tribunal, even as, there is none pointed out by respondents also, that an action per above circular has been taken in any instance. Hence a copy of this order be sent by Registered Post by the Registry of this Tribunal -to Secretary DOPT, Govt of India by name as also to Secretary, Department of Expenditure, Govt of India to examine across all Ministries, Attached Offices, Autonomous Bodies and other State entities as to the steps in this regards. This, in the humble opinion of this Tribunal is more the responsibility of the Department of Expenditure than DOPT to reign in its vast paraphernalia responsible for fixing pay and increments etc in the totality of Page 21 of 21 CAT,Lucknow Bench OA 431/2018 Brij Nandan Vs. U.O.I emoluments and fix responsibilities where they have in a timely manner in good time and to make this an annual exercise with certificates from concerned authorities to the effect that required thorough checking has been made with regards to fixation of pay on account of any development - promotion, increment due, any other - and such provisions may be considered with regards to required disciplinary action in failings wherever so noticed enabling the required material for the DOPT to take action in accordance with law. This, in the respectful view of the Tribunal, would, indeed be a great service to the honest tax payer in the least and equitable justice to those who are not the beneficiaries of such largess of erroneous pay fixations.
14. In the circumstances and as discussed in detail, therefore, accordingly, there is very weak case of the applicant and so the O.A. is worthy of being dismissed and is dismissed.
15. No costs.
(Devendra Chaudhry) Member -A vidya