Madhya Pradesh High Court
Km.Mridula Saxena vs State Of M.P on 11 May, 2017
W.P. No.7497/2012
(Km. Mridula Saxena Vs. State of M.P. & Ors. ) 1
11/05/2017
Shri O.P. Saxena, learned counsel for the petitioner.
Smt. Ami Prabal, learned Deputy Advocate General for
the respondents/State.
Petitioner was appointed as Assistant Teacher in the pay scale of Rs.975-1650/- on 02/01/1984. With the passage of time, she has been extended the benefit of revision of pay scales upto the implementation of VI pay commission w.e.f., 01/01/2006. After distant time of more than 25 years, ever since she was fixed in the revised pay scale under V pay commission with effect from 01/01/1996 and VI pay commission with effect from 01/01/2006 in the month of September 2012, she was subjected to impugned recovery as reflected in the pay slip Annexure P/2; purportedly, on the basis of audit objection raised in her service book during the year 2010 (Annexure P/1) and that too without notice and affording opportunity of hearing, against which the petitioner has approached this Court by filing the instant writ petition.
2. On 18/10/2012, this Court had stayed the recovery while issuing notices to the respondents.
3. Learned counsel for the petitioner contends that in the case of State of Punjab & Ors. Vs. Rafiq Masih & Ors. reported in (2015) 4 SCC 334, the Hon'ble Supreme Court under Article 142 of the Constitution of India has laid down the law that no recovery shall be made from the employees belonging to Class III and Class IV or Group "C" and Group "D" services, if the said recovery is based on wrong fixation of pay in their service career, therefore, the impugned recovery deserves to be quashed.
4. Per contra, learned Deputy Advocate General contends that as a matter of fact, at the time of extension of the benefit of revised pay-scale under V and VI Pay Commissions, W.P. No.7497/2012 (Km. Mridula Saxena Vs. State of M.P. & Ors. ) 2 petitioner had given undertakings (Annexure R/1 colly.,) to the effect that in the event petitioner is extended the benefit of wrong fixation, the same shall be liable for recovery and the petitioner shall abide by the orders of impugned recovery etc, therefore, in the light of the subsequent judgment of the Hon'ble Supreme court in the case of High Court of Punjab & Haryana Ors. Vs. Jagdev Singh, (2016) 14 SCC 267, no fault can be found with the recovery as ordered. It is further contended that the petitioner is continuing in service and the mistake occurred while fixation of pay at the time of implementation of revision of pay since has been detected during interregnum, then to safeguard the public exchequer, the same can be rectified and the clock can be set right by fixation of the pay of the petitioner, in the appropriate pay scale.
5. Heard.
6. The short controversy involved in the instant case relates to applicability of the proposition of law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih & Ors (supra), in the matter of recovery arising out of wrong fixation of pay in the past, at a distance of more than 25 years, moreso when the petitioner is not found to have either misrepresented or submitted false information or resorted to suppression of facts, resulting into getting the benefit of revised pay scales. Furthermore, petitioner was no where associated with the matter of fixation of revised pay scales, by the respondents.
7. It is considered apposite to quote the relevant paragraphs 2, 6, 7, 8, 10 and 18 in the case of Rafiq Masih & Ors. (supra) to address on the aforesaid question:-
"(2) Another essential factual component in this bunch of cases is, that the respondent-
employees were not guilty of furnishing any incorrect information, which had led the concerned competent authority, to commit the mistake of making the higher payment to the employees. The payment of higher dues to the W.P. No.7497/2012 (Km. Mridula Saxena Vs. State of M.P. & Ors. ) 3 private respondents, in all these cases, was not on account of any misrepresentation made by them, nor was it on account of any fraud committed by them. Any participation of the private respondents, in the mistake committed by the employer, in extending the undeserved monetary benefits to the respondent-
employees, is totally ruled out. It would, therefore not be incorrect to record, that the private respondents, were as innocent as their employers, in the wrongful determination of their inflated emoluments.
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(6) In view of the conclusions extracted hereinabove, it will be our endeavour, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may not be compelled to refund the same. In our considered view, the instant benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee.
(7) Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of W.P. No.7497/2012 (Km. Mridula Saxena Vs. State of M.P. & Ors. ) 4 such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.
(8) As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
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(10) In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 W.P. No.7497/2012 (Km. Mridula Saxena Vs. State of M.P. & Ors. ) 5 of the Constitution of India.
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(18) 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, summarize 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, eve n 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."
8. Bearing in mind the aforementioned law laid down by the Hon'ble Supreme Court in the context of aforementioned relevant considerations, if facts of the case in hand are examined, it is found that for the benefits of V pay commission w.e.f. 01/01/1996 and VI pay commission w.e.f. 01/01/2006, the recovery has been initiated in the month of September 2012, purportedly, on the strength of audit objection in the year 2010, therefore, no recovery after a gap of more than 25 W.P. No.7497/2012 (Km. Mridula Saxena Vs. State of M.P. & Ors. ) 6 years could be initiated on the strength of undertakings given by the petitioner as contained in Annexure R/1, on the premise that revision of pay under V pay commission has been implemented in the year 1998 and that of VI pay commission in the year 2009. Further, looking to the law laid down by the Hon'ble Supreme Court in the aforesaid case that no recovery from the employees belonging to Class III and Class IV employees can be made due to wrong fixation of pay, this Court is of the view that the aforesaid impugned recovery cannot be sustained for more than one reasons; (a) there is no explanation forthcoming in the counter-affidavit filed by the respondents about the undue delay caused in effecting recovery in the month of September 2012, in relation to the pay revisions of the years 1996 and 2006, except the alleged audit objection of the year 2010 in the service book of the petitioner (Annexure P/1), however, no prior notice or opportunity of hearing was afforded to the petitioner; (b) admittedly, it is not the case of respondents that the petitioner has misrepresented or suppressed relevant information or played fraud in furtherance of object of securing revised pay scales; and (c) it is also not the case of the respondents that the petitioner in any manner whatsoever was associated in the act of fixation of pay scales.
Under such circumstances, it will be unfair, unreasonable and iniquitous to subject the petitioner for the impugned recovery, merely on the strength of alleged undertakings given by the petitioner at the time of extension of the benefit of revision of pay scales as contained in Annexure R/1.
9. The subsequent judgment of the Hon'ble Supreme Court in the case of Jagdev Singh (supra) in the opinion of this court is distinguishable and not found to be applicable to the facts of the case in hand. It was a case of a judicial officer having been extended the benefit of revised pay scale with an undertaking given simultaneously, and in the light thereof, he W.P. No.7497/2012 (Km. Mridula Saxena Vs. State of M.P. & Ors. ) 7 has been held to be bound by the undertaking, therefore, his case is not found to be covered under clause (ii) of Para 18 of the judgment of Hon'ble Supreme Court in the case of Rafiq Masih & Ors (supra). Hence, the respondents cannot derive any advantage of the aforesaid later judgment of the Hon'ble Supreme Court, i.e., Jagdev Singh (supra). The petitioner herein is a Class III employee found to be covered under clause
(i) of para 18 in the case of Rafiq Masih & Ors (supra) which provides that no recovery shall be made from class III and Class IV employees as quoted above. Consequently, the recovery so ordered against the petitioner is found to be not sustainable. The impugned recovery (Annexure P/2) is set aside, pursuant to which, if any amount is recovered from the petitioner, the same shall be refunded to the petitioner within three weeks from the date of production of certified copy order passed by this Court. However, the respondents are set at liberty to correct the revision in pay scale of the petitioner, prospectively as the mistake committed earlier in point of time cannot be permitted to be perpetuated in all times to come; meaning thereby, the pay fixation of the petitioner may be done, in accordance with entitlement under intimation to the petitioner.
10. Accordingly, the writ petition is allowed to the extent indicated above and disposed of with the aforesaid observation.
(Rohit Arya)
rahul/b/- Judge