Gujarat High Court
Union Of India & vs Tarachand J Chauhan on 14 February, 2013
Author: Vijay Manohar Sahai
Bench: Vijay Manohar Sahai
UNION OF INDIAV/STARACHAND J CHAUHAN, THROUGH HIS LEGAL HEIRS,....Respondent(s) C/SCA/3097/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 3097 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE S.G.SHAH ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ UNION OF INDIA & 1....Petitioner(s) Versus TARACHAND J CHAUHAN, THROUGH HIS LEGAL HEIRS,....Respondent(s) ================================================================ Appearance: MS ROOPAL R PATEL, ADVOCATE for the Petitioner(s) No. 1 - 2 DECESED LITIGANT, ADVOCATE for the Respondent(s) No. 1 HCLS COMMITTEE, ADVOCATE for the Respondent(s) No. 1.1 - 1.3 MR PH PATHAK, ADVOCATE for the Respondent(s) No. 1.1 - 1.3 MS JK HINGORANI, ADVOCATE for the Respondent(s) No. 1.1 - 1.3 ================================================================ CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI and HONOURABLE MR.JUSTICE S.G.SHAH Date : 14/02/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.G.SHAH) The petitioners have challenged the judgment and order dated 31.3.2011 in Original Application No.289 of 2009; and judgment and order dated 21.11.2011 in Review Application No.39 of 2011 by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad.
Heard learned advocate Ms.Roopal R.Patel for the petitioners and Ms.J.K.Hingorani, learned advocate for the respondent. The matter is listed for admission. However, both the learned counsel have agreed that the matter may be decided finally.
The O.A.No.289 of 2009 was filed by respondent wherein the Central Administrative Tribunal, Ahmedabad has quashed the recovery of amount by order dated 28.4.2009, which is alleged to be paid in excess as salary to the respondent. The review petition to challenge such decision was rejected, hence, petitioners have challenged both such orders in present petition. The petitioners herein are the Corporation owned by the Union of India, namely, Bharat Sanchar Nigam Limited, whereas respondent is its employee. Originally telephone services were being managed by the Department of Telecommunications and, therefore, services of original respondent was with the Department of Telecommunications. However, in the year 2000, the Government has incorporated Bharat Sanchar Nigam Limited ( BSNL , for short) as a wholly Government owned company and most of the staff of Department of Telecommunications, particularly from Telephone Department, were transferred and absorbed in BSNL. Pursuant to such change, the service conditions, including payment of salary would be as per the rules framed and applicable to the Government company, in the present case BSNL. It is not disputed that a scheme was approved for such conversion and, accordingly, almost all the staff of Department of Telecommunications engaged with the Telephone Department were transferred and absorbed in BSNL. Thereupon, they are entitled to get salary and other benefits as applicable to the staff of BSNL.
So far as the original respondent Tarachand J. Chauhan in this case is concerned, it is submitted by the petitioners that though he was deputed and working with BSNL, he is not entitled to be absorbed because of pending Departmental Inquiry against him in Department of Telecommunications and, therefore, the salary paid to him as per the rules of BSNL is not applicable, but he is entitled to the salary, which he was getting from Department of Telecommunications and, therefore, since there is wrongful payment to the original respondent, same is required to be recovered back. As against that, it is submitted by the respondent that there was no role on his part or there was no misrepresentation by him or that he had never claimed and charged particular salary, but he has received the salary which was paid by the petitioners to him without any objection or protest or representation and, therefore, now, recovery would govern as per the decision of the Supreme Court in the case of Shyam Babu Verma Vs. Union of India reported in (1994)2 SCC 521, contending that if any condition as stipulated in such judgment is not fulfilled, there cannot be recovery of salary paid to him.
It is contended by the petitioners that respondent was not absorbed in BSNL because of the policy decision not to absorb anyone against whom any Departmental Inquiry or proceeding is pending and, therefore, when the original respondent is not absorbed in BSNL, he is not entitled to the benefit of revised salary by BSNL, but he is entitled to the same old salary, which he was getting from Department of Telecommunications.
Hon ble the Supreme Court of India has in Chandi Prasad Uniyal and Ors vs State Of Uttarakhand and Ors reported in AIR 2012 SC 2951 referred several relevant cases on the subject;
viz: Shyam Babu Verma v. Union of India [(1994) 2 SCC 521], Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18], State of Bihar v. Pandey Jagdishwar Prasad [(2009) 3 SCC 117], Yogeshwar Prasad and Ors v. National Institute of Education Planning and Administration and Ors. [(2010) 14 SCC 323] and Col. B.J. Akkara (retd.) v. Government of India and Ors. [(2006) 11 SCC 709];
to resolve a question that whether over-payment of amount due to wrong fixation of 5th and 6th pay scale based on the 5th Pay Commission Report could be recovered from the recipients. Though the ultimate result is confirming recovery of over payment, what is decided by the Apex Court after referring all cited cases can be found in para 17 of such judgment, which reads as under:
17.
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 (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered.
This view which results in to determination and decision of the Apex Court makes it quite clear that excess payment made due to wrong/irregular pay fixation of salary is recoverable, but it is subject to conditions as laid down in the case of Syed Abdul Qadir & Ors.
Vs.State of Bihar & Ors.
reported in 2009 AIR SCW 1871 and in Col.B.J. Akkara (retd.) case (supra). The most important part of such determination and decision is type of excess payment which is specifically stated as the excess payment made due to wrong/irregular pay fixation , because the Court was dealing with the excess payment due to wrong fixation of 5th and 6th pay scale of teachers/principals based on the 5th Pay Commission Report. Therefore recovery of over payment of salary is not a rule, but it is permissible subject to certain conditions like nature of overpayment and subject to instances pointed out in the case of Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra).
Therefore, it is necessary to refer above decisions to examine that whether present case falls within any instances as pointed out in those cases. For the purpose discussions on such decisions by the Apex Court in Chandi Prasad Uniyal (supra) would be relevant, which reads as under:
10.
Shyam Babu Verma case (supra) was a three-Judge Bench judgment, in that case the higher pay scale was erroneously paid in the year 1973, the same was sought to be recovered in the year 1984 after a period of eleven years. The court felt that the sudden deduction of the pay scale from Rs.330-560 to Rs.330-480 after several years of implementation of said pay scale had not only affected financially but even the seniority of the petitioners. Under such circumstance, this Court had taken the view that it would not be just and proper to recover any excess amount paid.
11. In Sahib Ram case (supra), a two-Judge Bench of this Court noticed that the appellants therein did not possess the required educational qualification and consequently would not be entitled to the relaxation but having granted the relaxation and having paid the salary on the revised scales, it was ordered that the excess payment should not be recovered applying the principle of equal pay for equal work. In our view, this judgment is inapplicable to the facts of this case. In Yogeshwar Prasad case (supra), a two-Judge Bench of this Court after referring to the above mentioned judgments took the view that the grant of higher pay could be recovered unless it was a case of misrepresentation or fraud. On facts, neither misrepresentation nor fraud could be attributed to appellants therein and hence, restrained the recovery of excess amount paid.
12. We may in this respect refer to the judgment of two-Judge Bench of this Court in Col. B.J. Akkara (retd.) case (supra) where this Court after referring to Shyam Babu Verma case, Sahib Ram case (supra) and few other decisions held as follows:
Such relief, restraining recovery back of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.
13. Later, a three-Judge Bench in Syed Abdul Qadir case (supra) after referring to Shyam Babu Verma, Col. B.J. Akkara (retd.) etc. restrained the department from recovery of excess amount paid, but held as follows:
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 appellants-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 appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. (emphasis added)
14. We may point out that in Syed Abdul Qadir case such a direction was given keeping in view of the 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.
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.
In this recent case of Chandi Prasad Uniyal (supra) before the Apex Court, parties were not in conflict on facts that over-payment was effected due to wrong fixation of pay because some of the District Education Officers have not taken into consideration the letters issued by the office and fixed pay scales, as a result there is no similarity in the fixation of revised 5th pay scale throughout the State and therefore confusion had arisen among the different classes of teachers and payments were effected due to such mistake but not due to any misrepresentation or fraud committed by the teachers. Immediately when it has come to the knowledge of the office, for adjudication of such issues and to bring similarity in the fixation of pay scale and to avoid any difficulty in the future, concern officers were directed about the pay fixation through enclosures, stating that if pay fixation has been done as per the letters of the office then it is O.K. otherwise it will be fixed later on. In case of fixation of payment contrary to the letters of this office, the remaining amount be not released. It is further observed that District Education Officer had, forwarded a copy of model pay fixation form to ensure the correct fixation of 5th & 6th pay scale of the teachers/principals and informed the Manager / Principal of the colleges to fix the pay scale as per model pay fixation form and that only thereafter the salary of the concerned principals/teachers shall be issued and further deposit the challan in respect of excess payment in the treasury.
Moreover undisputedly, the facts in that case clearly demonstrate that the excess salary was paid due to irregular/wrong pay fixation by the concerned District Education Officer.
It is also indicative that when the revised pay scale/pay fixation was fixed on the basis of the 5th Central Pay Scale, a condition was superimposed which reads as follows:
In the condition of irregular/wrong pay fixation, the institution shall be responsible for recovery of the amount received in excess from the salary/pension.
Therefore the Apex Court has held that the appellants before it are further bound by that condition as well.
Whereas for the question that whether the appellants can retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on their part, the Apex Court has not laid down any principle of law that even only if there is no misrepresentation or fraud on the part of the recipients in getting the excess pay, the amount paid due to irregular/wrong fixation of pay may be recovered. However it is also true that though the Apex Court has observed as under in para 16, what is decided by the Apex Court is again not laying down any specific dictum that recovery of excess payment is must irrespective of any other facts, circumstances or situation; more particularly when the Apex Court has to observe as such in the same paragraph (that portion is highlighted by making the text in bold fonts).
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 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.
Therefore immediately after above observation the Apex Court has held as under:
17.
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 (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered.
Thus, though there was reference to singular exception of extreme hardship in para 16, in para 17 reference is regarding few instances as pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), where as in para 18 the Apex Court has specifically observe that appellants before it 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 view of above discussion what emerged for consideration of recovery of excess paid salary is summarized as under:
17.1 The excess payment made due to wrong/irregular pay fixation can always be recovered except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra). Thus excess payment can be recovered;
If excess payment is received by misrepresentation or fraud [Yogeshwar Prasad (supra)] where the employee had knowledge that the payment received was in excess of what was due or wrongly paid [Col. B.J. Akkara (retd.) (supra)] where the error is detected or corrected within a short time of wrong payment[Col. B.J. Akkara (retd.) (supra)] a condition was superimposed that excess payment will be recovered [Chandi Prasad Uniyal (supra)] 17.2 Whereas following may be instances for non recovery of excess payment of salary, subject to satisfaction of Court:
a) No recovery after long period, [Shyam Babu Verma (supra), a three-Judge Bench judgment]
b) Principle of equal pay for equal work, [Sahib Ram (supra)]
c) In equity and in exercise of judicial discretion, to avoid hardship that will be caused if recovery is implemented [Col. B.J. Akkara (retd.) (supra)]
d) In the realm of judicial discretion, on the facts and circumstances of any particular case to avoid any hardship [Col. B.J. Akkara (retd.) (supra)]
e) Because of inaction, negligence and carelessness of the officials concerned, for which the appellants cannot be held responsible [three-Judge Bench in Syed Abdul Qadir case (supra)]
f) If the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them [three-Judge Bench in Syed Abdul Qadir case (supra)] The decision dated 22nd May, 2009 of Full Bench of the Hon'ble Punjab & Haryana High Court in Civil Writ petition No. 2799 of 2008 titled, "Budh Ram vs. State of Haryana" regarding recovery of wrongly paid benefits to an employee of the State or its instrumentalities, also consider that the cases regarding recovery of wrongly paid benefits can be divided into the following three categories:
Cases in which the benefits sought to be recovered from the employees were granted to them on the basis of any fraud, misrepresentation or any other act of deception.
Cases in which the benefits sought to be recovered were granted on the basis of bonafide mistake committed by the authority granting the same while applying or interpreting a provision contained in the service rule, regulation or any other memo or circular authorizing such grant regardless whether or not grant of benefits involved the performance of higher or more onerous duties by the employee concerned;
Cases that do not fall in either one of the above two categories but where the nature of the benefit and extent is so unconnected with his service conditions that the employee must be presumed to have known that the benefit was flowing to him undeservedly because of a mistake buy the authority granting the same.
The discussion by the Full bench of Punjab & Haryana High Court in answer to the reference by the Division Bench in the case of Budh Ram is relevant when it is observed that cases involving recovery of benefits received by the employees on account of misrepresentation or erroneous application of rules, regulations, circulars or instructions issued by the Government have often come up before the Courts including the Apex Court. The consistent view taken as regards the recovery of such benefits erroneously extended to the employees without the employee being, in any way, guilty of any fraud, misrepresentation or deception is that such recovery would be unfair inequitable and against justice and good conscience. In Bihar State Electricity Board and another Vs. Bijay Bahadur and another, 2000 (10) SCC 99, even when their Lordships recorded a finding that the employee did not possess the requisite qualification for the benefit granted to him and was not, therefore, entitled to any relaxation of the Rules held that it would be against the concept of fairness, equity, justice and good conscience to recover the amount received by him in consequence of the benefit granted to him. Concurring with the observations made by their Lordships' in Sahib Ram's case (supra), the Court observed:- "We do record our concurrence with the observations of this Court in Sahib Ram case (supra) and come to the conclusion that since payments have been made without any representation or a misrepresentation, the appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The act or acts on the part of the appellant Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice. The concept of fairness has been given a go-by. As such the actions initiated for recovery cannot be sustained under any circumstances."
To the same effect is the decision of Purshottam Lal Das vs. the State of Bihar, 2007(1) RSJ 151, where basic health workers Class-III employees were promoted to Class-II posts against the rules. Even the Committee which accorded promotion was not properly constituted nor was the reservation policy followed. Relief against recovery had been denied on the ground that those who granted it had committed a grave irregularity in doing so. The Court, however, directed that while the order of reversion could not be faulted, there could be no recovery of the amounts already paid to the employees during the period they held the promotional posts.
Reference may also be made to Union of India and another etc. etc. vs. M. Bhaskar and others etc. etc. 1996(3)RSJ 205, where too the Apex Court declined permission to recover the amount already paid to the employee on the ground that the same would cause hardship. In P.H.Reddy vs. N.T.R.D., 2002 (2) SCT 987, the court was dealing with a case where the salary of a defence pensioner was revised on re-employment against a civil post erroneously and a direction to recover the excess amount issued. The Supreme Court while upholding the correction of the error by the authorities declared that the demand for reimbursement of the excess amount could not be sustained.
To the same effect are the decisions of the Supreme Court in Babulal Jain vs. State of M.P. and Others, 2007(3)SCT 134, and State of Haryana and another Vs. Partap Singh and Others, 2007 (1) RSJ 6 and the decisions of the Division Bench of P&H High Court in Sudarshan Kumar Sood and others Vs. Bhakra Beas Management Board, Chandigarh and others 2003(1) RSJ 308, Ajit Singh Vs. Managing Director, PEPSU Road Transport Corpn. and another 2007(3) RSJ 83 and Union Territory Chandigarh Administration and others Vs. Sudesh Rathore and others 2004(1) RSJ 523. It is in the light of the above pronouncement, no longer open to the authorities granting the benefits, no matter erroneously, to contend that even when the employee concerned was not at fault and was not in any way responsible for the mistake committed by the authorities, they are entitled to recover the benefit that has been received by the employee on the basis of any such erroneous grant. We say so primarily because if the employee is not responsible for the erroneous grant of benefit to him/her, it would induce in him the belief that the same was indeed due and payable. Acting on that belief the employee would, as any other person placed in his position arrange his affairs accordingly which he may not have done if he had known that the benefit being granted to him is likely to be withdrawn at any subsequent point of time on what may be then said to be the correct interpretation and application of rules. Having induced that belief in the employee and made him change his position and arrange his affairs in a manner that he would not otherwise have done, it would be unfair, inequitable and harsh for the Government to direct recovery of the excess amount simply because on a true and correct interpretation of the rules, such a benefit was not due. It does not require much imagination to say that additional monetary benefits going to an employee may not always result in accumulation of his resources and savings. Such a benefit may often be utilized on smaller luxuries of life which the employee and his family may not have been able to afford had the benefit not been extended to him. The employees can well argue that if it was known to them that the additional benefit is only temporary and would be recovered back from them, they would not have committed themselves to any additional expenditure in their daily affairs and would have cut their coat according to their cloth. We have, therefore, no hesitation in holding that in case the employees who are recipient of the benefits extended to them on an erroneous interpretation or application of any rule, regulation, circular and instructions have not in any way contributed to such erroneous interpretation nor have they committed any fraud, misrepresentation, deception to obtain the grant of such benefit, the benefit so extended may be stopped for the future, but the amount already paid to the employees cannot be recovered from them.
In the present case, it is not disputed that there is no misrepresentation or fraud on the part of the respondent for securing the pay-scale of BSNL. Therefore, if BSNL has erred on its own and paid salary for more than 8 years to the respondent, such incident would certainly not fall within the conditions as laid down by the Hon ble Apex Court in above-referred case of Chandi Prasad Uniyal (supra). Therefore, when such conditions are satisfied in any case, then employer is not entitled to recover back the amount, which is already paid to its employee. It is also clear from record that petitioners have not produced any material to indicate that respondent has played any role in getting the BSNL pay-scale continuously for 8 years.
The Tribunal has quoted the extract from the judgment of Israil Khan (supra) and came to the conclusion that both the the conditions laid down in such case are satisfied in the present case also. It is also observed that the present petitioner have not produced any material to indicate that the petitioner had any role in granting of the BSNL pay-scale and its continued payment for about 8 years.
Therefore, only because of the reason that there was a pending vigilance case against the original respondents and that his service was required to be terminated after more than 8 years after his deputation on BSNL, during which period, BSNL has on its own paid the salary applicable to the Wireman and promoted as TOA (G) from 13.8.1979 and OTBP from 199, it cannot be said that original respondent had in any way misrepresented or committed fraud in getting salary as per the BSNL scheme. One another fact is now required to be considered that pending such litigation, original respondent Tarachand J.Chauhan expired in March 2012 and, therefore, his legal heirs were joined on record as per the Court s order dated 7.12.2012.
Thus, the case of the original respondents squarely falls within the example and instances as listed in paragraph 17.2 of the instances listed in paragraph 17.2 i.e. excess payment was made for the petitioner herein for more than 8 years (petitioner was posted in BSNL on 2.1.2001 whereas order of recovery is dated 28.4.2009); original respondent has worked on his own post and, therefore, he is entitled to equal pay for equal work, only because of absence of formal order of absorption in BSNL, there is no change in his duty in BSNL; since original respondent No.2 has now died in the year 2012, and his legal heirs are joined on record, recovery of excess payment between the year 2001 to 2009 would certainly increase the hardship of the present respondents if recovery is implemented and, therefore, equity and judicial discretion certainly tilts in favour of the respondents; reason for excess payment is certainly attributed to inaction, negligence and carelessness of the official concerned for which respondents cannot be held responsible; there was no specific role or undertaking i.e. there is no condition between the employer and employee that excess payment if any found shall be recovered at any time.
Therefore, petitioner is not entitled to recover the excess amount if any paid to original respondent.
It is not disputed that if recovery is to be implemented now, it would be from the widow and legal heirs of the original respondent, which would certainly result into greater hardship to them.
In view of above discussion of all the judgments, it has been found that the Apex Court has in the case of Chandi Prasad Uniyal (supra), not overruled any of the judgment, which is by equal bench or by higher bench of the Apex Court and even of the full bench of Punjab & Haryana High Court, may be because some of the judgments may not be cited before the Court. However, the fact remains that when judgment of the higher bench is not overruled by the last judgment and when in such last judgment also, the Apex Court has not laid down any strict rule of law, each case is to be determined on its own merits to find out that in which condition the present case falls, amongst conditions enlisted in paragraph 17.1 and 17.2 herein above. Thereby if the case falls within the ambit of the conditions in paragraph 17.1 recovery can be made but if the case falls in paragraph 17.2, it would be in the realm of judicial discretion to refuse the recovery of payment.
As discussed herein above, we find that the present case squarely falls within the condition enlisted in paragraph 17.2 above and, therefore, we find no reason to interfere with the judgment of the Tribunal, thereby, the petition deserves dismissal and, hence, it is dismissed.
In such circumstances, we find no reason to interfere with the judgment of the Tribunal.
Though, we have to restrain ourselves from incorporating any advise in judicial orders, the overall study of all relevant cases makes it clear that, practically, there must be service rule or condition of service or express condition even by super-imposing it as it is being done in the case of Chandi Prasad Uniyal (supra) that excess payment, if any, shall be recoverable. Such condition may have necessary exceptions, if so required. In absence of such specific condition as observed in the said judgment of Chandi Prasad Uniyal (supra), excess payment of public money by Government Officers may be due to various reasons like negligence, carelessness, collusion, favourism etc. because money in such situation does not belong to the payer or the payee and when both are at fault, and thereby when the mistake is mutual, it would be open for the authority to initiate appropriate proceeding against the officer, which is found negligent, careless or under collusion for making such payment.
(V.M.SAHAI, J.) (S.G.SHAH, J.) (binoy) Page 27 of 27