Patna High Court
Mundrika Devi vs Bihar State Electricity Board& on 3 September, 2008
Author: C.M. Prasad
Bench: Barin Ghosh, C.M.Prasad
Letters Patent Appeal No.1241 OF 2002
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Against the Judgment and Order dated 17.09.2002 passed by Hon‟ble
Justice S.K. Katriar in C.W.J.C.No.8389 of 2001.
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MUNDRIKA DEVI--------------------------------------------(Appellant)
Versus
BIHAR STATE ELECTRICITY BOARD & ORS----(Respondents)
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For the Appellant:- Mr. Shivajee Pandey-----Sr. Advocate,
Mr. N. V. Tiwary-----Advocate.
For the Respondent: Mr. Vinay Kriti Singh--------Advocate.
Mr. V.K. Verma--------Advocate.
PRESENT
THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M.PRASAD Barin Ghosh & Payments made by mistake to an employee C.M. Prasad, JJ.
of the respondent-Board, while he was in employment, can be recovered or not was the question gone in by a full Bench of this court in the case of Ram Binod Singh V. Bihar State Electricity Board, reported in 2007(3) P.L.J.R.
398. The Bench held that if such mistake has been caused by reason of active participation of the employee in question, then of course, recovery can be made. In relation to other mistakes, the Court made two separate categories, one ministerial mistakes and the other, mistakes 2 committed on mistaken notion. The court held that mistakes committed at ministerial level, i.e., mistakes apparent from the face of the records, can at any point of time may be corrected and accordingly, recovery can be directed. In relation to mistakes committed on mistaken notion, i.e., by mistaken appreciation of facts and laws, the Court observed at paragraph-26 of the reported judgment as follows:-
"It has been correctly submitted on behalf of the petitioners that the theory of simple mistake or error to justify recovery will not hold good where the grant did not suffer from patent illegality or perversity so as to attract the Wednesbury Principle or the vice of mala fide in law. For example, where two interpretations of a provision were possible and one was consciously approved and adopted by the competent authority meant to be applied generally to all concerned, any 3 error in such decision of the competent authority if corrected at a later stage may be ordered to apply only prospectively. More so, if the decision has been followed for many years. In other words, if on reinterpretation or adjudication the earlier view permitting the grant of monetary benefits is found to be by a competent authority and bonafide but wrong, mistaken or erroneous, then ordinarily no recovery should be made unless the excess payment already made is covered by the two exceptions pointed out in the case of Madan Mohan Prasad (Supra)."
2. As noted by the Bench in Madan Mohan Prasad, reported in 2001(2) P.L.J.R. 58, a Division Bench held that excess payment due to mistake in pay fixation /grant of increment or the like leading to wrong calculation of salary of the employees can be recovered from the retiral or other dues and the recovery cannot be resisted on the 4 ground that there was no fraud or misrepresentation on the part of the concerned employee.
3. In the instant case, it is not the contention of the Board that in the matter of alleged mistake, which resulted in excess payment, the appellant had any role to play. The excess payment, if any, is also not due to mistake in pay fixation, grant of increment or the like leading to wrong calculation of salary of the employee. The mistake is also not at the ministerial level. Respondent-Board, in the instant case, after superannuation of the appellant, opined that pay protection given to the appellant, his promotion to selection grade and grant of 12% extra emolument was improper and incorrect; and because of improper and incorrect decision, excess payment has been made to the appellant, which is recoverable. It is not the contention of the respondent- Board that grant of any of them was not by the authority authorized to grant the same. It is the contention of the appellant Board that the grants themselves were not permissible by law and accordingly, any payment made on 5 the basis of such grants is recoverable.
4. As we are bound by the judgment rendered by the Full Bench of this court and inasmuch as the decision of the Full Bench, as quoted above, squarely applies to the present case, we have no other option but to allow the appeal and set aside the judgment and order under appeal, which we do hereby, and at the same time allow the writ petition by directing the Board to fix the retiral/terminal dues of the appellant, without taking note of the contention of the Board, as contained in its order dated 3rd April, 2000, which admittedly came into play subsequent to superannuation of the appellant.
5. The word „appellant‟ referred to above shall denote the employee of the respondent-Board, who died after the Judgment and Order under appeal was rendered and whereupon the appeal was filed by his wife. Patna High Court, Dated, 3rd September, (Barin Ghosh, J.) 2008, Mkr./N.A.F.R. (C.M. Prasad, J.)