Deshbir Singh vs Union Territory Of J&K And Others

Rajnesh Oswal, J

The present petition has been filed by the petitioner for quashing the communication No. LFAP/J/2019-20/2025 dated 16.09.2019 addressed by the respondent No. 5 to respondent No. 4, whereby recovery has been made for Rs. 18,53,153/- post retirement of the petitioner and also prayer has been made for commanding the respondents to revise the monthly pension of the petitioner on the basis of the last pay so drawn by the petitioner as Rs. 55,260/-.

It is stated that the respondents cannot recover the amount of Rs. 18,53,153/-from the pensionary benefits of the petitioner after his retirement, particularly when the benefits in terms of SRO 59 of 1990 dated 16.02.1990 and SRO 14 of 1996 dated 15.01.1996 were granted to the petitioner not on the basis of any misrepresentation or fraud on the part of the petitioner. The petitioner has placed on record the impugned communication and the copy of the Service Book as well.

Response stands filed by the respondents, in which it has been stated that the petitioner has drawn dual benefits under SRO No. 59 (supra) as also under SRO 14 (supra) which is impermissible under law, as such the same amounts to unjust enrichment and therefore the amount is required to be recovered from the petitioner. It is also stated that the petitioner was granted the benefits of SRO 14 w.e.f. 01.01.1995 and thereafter the petitioner drew the benefits of second time bound promotion in terms of SRO 14 w.e.f. 01.02.2000. It is further stated that the pension of the petitioner was re-fixed as Rs. 18,200/- keeping in view the fact that the pay admissible to the petitioner was Rs. 36,400/-. More so, SRO 59 (supra) stands withdrawn by virtue of Government order No. 165-F of 2003 dated 11.08.2003. The respondents have also given in tabular form the benefits availed by the petitioner from time to time.

Mr. Anuj Dewan Raina, learned counsel for the petitioner vehemently argued that the petitioner was granted the benefits of SRO 59 of 1990 by the respondents themselves and it is not the case of the respondents that the petitioner obtained the said benefits by way of fraud and misrepresentation. Mr. Raina has placed reliance of the judgment of the Apex Court in State of Punjab v Rafiq Masih, 2015(4) SCC 334.

Mr. K. D. S. Kotwal, learned Dy. AG vehemently argued that the petitioner has drawn excess amount to which the petitioner was never entitled to, as such, the respondents are well within their right to recover the same from the petitioner. He further argued that so far as the pension is concerned, that is required to be fixed after the deduction of the benefits from the last pay drawn by the petitioner and as the said amount is to be payable in future so judgment of the Apex Court in Rafiq Masih’s case (supra) shall not be applicable.

Heard and perused the record.

From the record, it is evident that the petitioner has attained superannuation as Work Supervisor, which is Class-III post. The issue that arises for consideration of this Court is as to whether the respondents can effect the recovery from the petitioner on account of the excess payment made by the respondents on account of SRO 59 (supra). It is not the case of the respondents that the petitioner has either misrepresented or committed fraud with the respondents that prompted the respondents to grant the said benefits to the petitioner.

In Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18, the Supreme Court restrained recovery of payment of excess amount paid on account of wrong interpretation of order and it was held as under :

“5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.”

The Apex Court in Syed Abdul Qadir v State of Bihar and others, 2009(3) SCC 475, has held as under:

“28. 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.

……….. Since we have directed that no recovery of the excess amount be made from the appellant- teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them.

In the result, the appeals are allowed in part, the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellants - teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR.22-C would apply to the appellants-teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of Secondary Schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment.”

In State of Punjab v. Rafiq Masih, reported in (2015) 4 SCC 334, the Apex Court has held as under:

“10. In view of the aforestated 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 of the Constitution of India.

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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the 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.”

In its latest decision in Thomas Daniel v State of Kerala and others bearing Civil Appeal No. 7115 of 2010, decided on May 2nd, 2022,while reiterating its earlier pronouncements, the Apex Court has observed as under:

“Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.”

Thus, from the law laid down by the Apex Court, it is evident that if the benefits have been derived by the employee by mis-representation or fraud, then the employer can order the recovery of the same from employee. Also it is evident that the Apex Court has held that even in cases not specifically covered by its judgment, if the court comes to the conclusion that recovery from the employee would be iniquitous or harsh or arbitrary, the same can be stopped by the court.

Thus, in view of the law laid down by the Apex Court, this Court is of the considered opinion that a sum of Rs. 18,53,153/- sought to be recovered from the petitioner by the respondents, cannot be recovered. So far as the fixation of pension is concerned, as the pension amount is yet to be paid, therefore, this Court is of the considered opinion that the respondents are well within their right to re-fix the pension on the basis of last pay drawn after deducting the benefits granted under SRO 59 of 1990 dated 16.02.1990.

In view of the above, the present petition is allowed to the extent that the order of recovery dated 16.09.2019 for an amount Rs. 18,53,153/- on account of excess amount paid to the petitioner pursuant to the benefits granted under SRO 59 of 1990 (supra), is quashed. As regards the fixation of pension is concerned, the respondents are well within their right to re-fix the pension of the petitioner on the basis of last pay drawn after deducting the benefits granted under SRO 59 of 1990 dated 16.02.1990.

Disposed of.

In view of the above, the contempt proceedings are also closed.