Madras High Court
Y.Viswanathan vs The Special Secretary To Government on 28 April, 2015
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.04.2015 CORAM THE HON'BLE Mr. JUSTICE S.MANIKUMAR THE HON'BLE Ms. JUSTICE V.M.VELUMANI W.P.(MD)No.6466 of 2015 and M.P(MD)No.1 of 2015 Y.Viswanathan .. Petitioner vs. 1. The Special Secretary to Government, Finance (Pay Cell) Department, Secretariat, Chennai-600 009. 2. The District Judge, Sivagangai District, Sivagangai. ... Respondents Petition filed under Article 226 of the constitution of India to issue a writ of Certiorarified Mandamus, calling for the records from the second respondent i.e., the District Judge, Sivagangai, relating to D.No.4016/15 dated 16.04.2015 and quash the same and consequently direct the respondents that they are at liberty to refix the salary as per G.O.Ms.No.321, Finance (Pay Cell) Department, dated 02.07.1998, which the department has already done without effecting any recovery. !For Petitioner ... Mr.S.Visvalingam ^For R1 ... Mr.M.Alagadevan, Special Government Pleader For R2 ... Mr.T.S.Mohamed Mohideen :ORDER
(Order of the Court was made by V.M.VELUMANI, J) The petitioner has filed this writ petition calling for the records from the second respondent i.e, the District Judge, Sivagangai, relating to D.No.4016/15, dated 16.04.2015, and quash the same and consequently to direct the respondents that they are at liberty to refix the salary as per G.O.Ms.No.321 Finance (Pay Cell) Department dated 02.07.1998 which the department has already done without effecting any recovery.
2. The petitioner was appointed as Steno Typist Grade-III on 08.5.1998. He was granted higher start of pay equivalent to two increments with effect from the date of joining for having acquired B.Com degree. Subsequently, he was promoted as Steno Typist Grade-II in the Court of District Judge, Sivagangai. The Accountant General, Chennai has directed the second respondent to recover the excess payment of Rs.38,420/- and corresponding allowance paid to the petitioner.
3. By proceedings dated 12.1.2011, the second respondent has cancelled the advance increment of two stages granted to the petitioner as Steno Typist Grade-III and sought to recover the amounts. The petitioner has filed W.P.(MD)No.705 of 2011 challenging the said order. This Court by order dated 17.7.2013 quashed the order of recovery of excess payment on the ground that no notice was issued to the petitioner before the order of recovery.
4. After the said order, the second respondent has issued fresh orders in D.No.4016/15 dated 16.4.2015 for recovery of Rs.53,544/-. The petitioner has submitted his explanation. The second respondent by impugned order has sought recovery of the amounts from the petitioner. The petitioner is challenging the said order in this writ petition on the ground that he did not misrepresent and commit any fraud in getting higher salary. Further, after 12 years, the second respondent is not entitled to recover the alleged excess amounts.
5. Per contra, the learned counsel for respondents contended that now the Hon'ble Apex Court has held that whether excess payment was made on misrepresentation or by fraud on the part of the employee or not, the same can be recovered from the employee. The Hon'ble Apex Court held that public money paid in excess even by mistake or by negligence can be recovered from employee. Therefore, he prayed for dismissal of writ petition.
6. The learned counsel for the petitioner and the respondents reiterated the averments made in the affidavit and counter affidavit.
7. The learned counsel for the petitioner relied on the following judgments:
(i) BABULAL JAIN V. STATE OF M.P. AND OTHERS reported in (2007) 6 Supreme Court Cases 180, wherein para-15 and 18 reads as follows:
15. We, however, are of the opinion that in a case of this nature, no recovery should be directed to be made. The appellant has discharged higher responsibilities. It is not a case where he obtained higher salary on committing any fraud or misrepresentation. The mistake, if any, took place on a misconception of law. He was at least entitled to some allowances. In refixing his pay, his claim to that effect has not been considered. He has since retired. A sum of Rs.22,000/- has been recovered from him. Such recovery has been effected without issuing any show-cause notice. His case on merit in this behalf had not been considered by the Government and even by the Tribunal.
18.We, therefore, while directing the respondents to refund the said sum of Rs.22,000/- to the appellant herein, also direct that his retirement benefit shall be calculated as if he had reached the age of superannuation only as an Accountant on the refixed pay and not on the scale of pay of the Election Supervisor. We issue this direction in exercise of our jurisdiction under Article 142 of the Constitution of India. No costs.
(ii) Special Officer Vs. S.Kadiresan reported in (2014)8 MLJ 385 wherein paragraphs 10,11 and 12 reads as follows:
10. However, in Chandi Prasad Uniyal and Others v. State of Uttarakhand and Others (supra) the Hon`ble Supreme Court has made the following observation:
" We are of the considered view, after going through the various judgments cited at the Bar, that 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."
The Hon'ble supreme Court in the said case, pointing out that in Shyam Babu Verma and Others v. Union of India and Others (Supra), the three Judges Bench of the Supreme Court held that it would not be just and proper to recover the excess amount paid to the employees as there was a gap of about 11 years from the date of grant of higher scale of pay on wrong fixation and the date of reduction of the pay, has held therein that generally the excess payment made to the employees on irregular / wrong fixation of pay can be recovered, as there is no right conferred on the employees, who received such excess payments to retain the benefit and that in appropriate cases, when recovery is sought to be made after a long gap, it will cause undue hardship to the employees provided the employee had received it without knowledge that the amount was paid in excess of what he was/they were entitled to, cannot be attributed to such employee/s. The Court in such individual cases, using the judicial discretion, may on the facts and circumstances of the particular case, refuse to grant the relief of recovery. The Hon`ble Supreme Court has opined in paragraph 13 of the judgment as follows:
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 misinterpretation 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 were on the verge of retirement or were occupying lower posts in the administrative hierarchy."
11. On the assumption that the opinion expressed in Chandi Prasad Uniyal and Others v. State of Uttarkhand and others (Supra) conflicts with the decisions rendered in Shyam Babu Verma and Others v. Union of India and Others (Supra) and Sahib Ram Verma v. State of Haryana (supra), the question came to be referred to a Larger Bench of the Hon`ble Supreme Court in the case of State of Punjab and Others v. Rafiq Masih (White Washer) (supra).
The Larger Bench, after considering various judgments held that that there is no conflict in those decisions and in fact even in Chandi Prasad Uniyal and Others v. State of Uttarakhand and Others (Supra), it has not been held that under no circumstances, the Court can bar the recovery of excess payment made due to mistake. From the said judgments, the law laid down by the Supreme Court can be deduced as follows:
i) As a general rule, excess payment made due to mistake or irregular / wrong fixation of pay shall always be recoverable;
ii) There is no general Rule that recovery of excess payment made due to irregular or wrong fixation of pay, can be made only if there is misrepresentation or fraud on the part of the employees;
iii) In exceptional cases, applying equity, the Court can refuse permission to recover the excess payment;
iv) In such exceptional cases, there should not be any misrepresentation or fraud and that the recipient should not have received excess payment with the knowledge that the amount was paid due to mistake or wrong fixation; and
v) Recovery sought to be made after a long gap can also be taken as a ground for refusing permission for such recovery on equitable grounds using the discretion of the court.
12. Applying the above said principles to the case on hand, we do not find any mistake or defect in the order of the learned single Judge in granting the relief prayed for in the writ petitions in W.P.Nos.8135 and 8136 of 2009. The learned single Judge has granted the relief noticing the fact that there was no misrepresentation or fraud on the part of the Land Valuation Officers; that their claim for re-fixation on part with similarly placed persons, namely, Land Valuation Officers of 1st and 2nd Batches could not be said to be malafide; that there was a long gap and the recovery was sought to be made, when most of the Land Valuation Officers, were either had retired or were at the verge of the retirement and that the relief was granted in their favour in the special facts and circumstances of the case using the discretion of the court to do equity as a court of equity.
D.PALAVESAMUTHU V. TAMILNADU ADMINISTRATIVE TRIBUNAL, REPRESENTED BY ITS REGISTRAR, CHENNAI AND OTHERS reported in (2006) 1 M.L.J.143 We are of the view that the course and method adopted by the Tribunal cannot be appreciated in the case of the petitioner. Even if it is accepted for the argument sake that salary of the petitioner is fixed in a wrong scale of pay, it is the fault committed by the Department and their Officers, for which the petitioner should not be penalised after a lapse of number of years that too after retirement of the petitioner."
8. Per contra, the learned counsel for the respondents contended that the petition was granted two advance increments by mistake and wrong interpretation of G.O.Ms.No.321 dated 2.7.1998. The proper interpretation of the said G.O. would clearly show that the petitioner is not entitled to higher start of pay. The Accountant General referring to the said G.O. has found that wrong payment was made to the petitioner by his proceedings, dated 3.2.2010, directed the second respondent to recover the amounts. The first order of recovery was set aside by this court as principles of natural of justice was not followed and no notice was issued to the petitioner before ordering recovery. Therefore, the second respondent has issued notice and considered the explanation of the petitioner. By properly considering the G.O., the second respondent has ordered recovery of excess payment.
9. The Hon'ble Apex Court held that the employer can recover amounts even if employee has not made any misrepresentation or commit any fraud. He relied on the judgments reported in 2012 (8) SCC 417 and 2014 (8) MLJ 385.
10. The relevant portions of the Judgments are as follows:
(i) In Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others reported in (2012) 8 SCC 417, paragraphs 8,13 and 14 are as follows:
8. We are of the considered view, after going through various judgments cited at the bar, that 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.
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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.
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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 over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. 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 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"
11. The learned counsel for the respondent further contented that the judgment relied on by the petitioner in the judgment reported in 2014 (8) MLJ 385 (cited supra) is not applicable to the facts of the present case, as in that case, relief was granted on the ground that most of the employees were already retired or on the verge of retirement. No recovery was made from similarly placed employees. The learned counsel for respondent relied on the following portions in the Judgment reported in 2014 [8] MLJ 385 [Special Officer Vs. S.Kadiresan].
"12. that their claim for re-fixation on par with similarly placed persons, namely Land Valuation Officers of 1st and 2nd Batches could not be said to be malafide; that there was a long gap and the recovery was sought to be made, when most of the Land Valuation Officers , were either had retired or were at the verge of the retirement and that the relief was granted in their favour in the special facts and circumstances of the case using the discretion of the court to do equity as a court of equity.
12. The learned counsel of the respondent further contented that the petitioner is not on the verge of retirement and he has 11 more years of service. In the judgment relied on by the counsel for petitioner reported in 2014 (8) MLJ 385 (cited Supra), relief was granted on the ground of delay in recovering the excess amount, which in case of most of the employees affected their pensionary benefit. Therefore, he prayed for dismissal of the writ petition.
13. We have considered the rival contentions put forth on either side and perused on the materials on record.
14. From the pleadings, it is seen that admittedly petitioner was granted higher starting pay on wrong application of G.O.Ms.No.321, dated 2.7.1998. The petitioner has stated in the affidavit that his salary can be re-fixed canceling two advance increments granted at the time of his initial appointment. He only prayed for questioning the impugned order of the second respondent with regard to recovery of alleged excess payment. The ground on which the petitioner seeks this relief is that he did not make any misrepresentation or played fraud in obtaining higher starting pay. According to the learner counsel for petitioner, in view of the judgments reported in 2007 (6) SCC 180 and 2014 (8) MLJ 385 (cited Supra), the impugned order of the second respondent has to be quashed. In view of the judgment relied on by the learned counsel of the respondent reported in 2012 (8) SCC 417(cited Supra) , this contention of the learned counsel of the petitioner is untenable and unsustainable. In the said judgment, the Hon'ble Apex Court made it very clear that at no point of time, the Hon'ble Apex court held that no recovery can be made in the absence misrepresentation or fraud. In the judgment of the Hon'ble Apex Court relied on by the learned counsel of the respondent, it has been categorically held that excess payment can be recovered even if the same was made by negligence or mistake on the part of the employer. Even if there is no misrepresentation or fraud played by the employee, the public money which the employee is not entitled to can be recovered from the employee.
15. Even if any amount paid / received without the authority of law can always be recovered barring few exceptions of extreme hardship, but not as a matter of right. In the present case, the petitioner will not be put to extreme hardship, if amounts are recovered from him. As rightly contented by the learned counsel of the respondent, the judgments of this court reported in 2014 (8) MLJ 385 (cited supra), is not applicable to the facts of the present case.
16. Considering all the materials on record and law on this aspect, we find no irregularity or infirmity in the impugned order of the second respondent. For the above reasons, writ petition fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
To
1. The Special Secretary to Government, Finance (Pay Cell) Department, Secretariat, Chennai-600 009.
2. The District Judge, Sivagangai District, Sivagangai.