Vijay Mohan Kapil v. State of Punjab and Ors

CWP-17822-20

IN

¶1CWP-17822-Sohan Lal Dhan

¶2CWP-17342-Vijay Mohan Ka

¶3CWP-21338-Pawan Kumar v CORAM: HO

Present : Mr

Mr

for

Ms

for

Ms

AMAN CHAUD

1.

The of together and 2005.

2.

Pra

03.10.2005 by w

3.

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4.

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THE HIGH COURT OF PUN AT CHANDIGA

2005 (O&M) nd vs. State of Punjab and others 2005 (O&M) apil vs. State of Punjab and othe 2010 (O&M) vs. State of Punjab and others ON'BLE MR. JUSTICE AMAN

***** r. Sonu Bhatia, Advocate for r. Surmukh Singh, Advocate the petitioner in CWP-21338-20 ne for the petitioner in CWP-178 s. Aruna Sachdeva, Advocate the petitioner in CWP-17342-20 s. Shruti, AAG, Punjab. **** DHARY, J. (ORAL) ese cases involve similar issues for the sake of brevity, the facts ayer made in the present petitio which pay of the petitioner was r e Division Bench while issuing ecovery. arned counsel submits that the p e and thereafter benefit of tw ualification as per Punjab Civil hich was withdrawn and pay wa s NJAB & HARYANA ARH Date of decision: 03.05.2025 rs N CHAUDHARY

¶010822-2005.

005.

and therefore, are being dispos are being taken from CWP-1734 ons is for quashing the letter dat educed and recovery ordered. g notice of motion on 07.11.20 etitioner has been given placeme wo increments on acquiring t Services (Revised Scales of Pa s refixed and thereafter stepped

sed 42-ted ent the ay)

equivalent to Amir Chand, JST Teacher, however, later on finding it not to be fixed correctly according to Rules/Instructions dated 28.10.1998, was re-fixed and recovery ordered. She, on instructions from the petitioner, restricts his prayer to only recovery ordered by relying on the Policy/Instructions dated 20.01.2017 and judgment passed by the Hon'ble Supreme Court in Jogeshwar Sahoo and others vs. The District Judge, Cuttack and others, SLP (C) No(s). 5918-2024, decided on 04.04.2025, wherein it has been held that the recovery of excess emoluments or allowances, disbursed as a consequence of an erroneous computation of the same, ought not to be affected, such indulgence being granted as an equitable relief, extended solely to alleviate the hardship that might otherwise be caused by such recovery, especially to those retired, the relevant paras whereof read thus:- "7. The issue falling for our consideration is not about the legality of the retrospective promotion and the financial benefit granted to the appellants on 10.05.2017. The issue for consideration is whether recovery of the amount extended to the appellants while they were in service is justified after their retirement and that too without affording any opportunity of hearing.o

¶8The law in this regard has been settled by this Court in catena of judgments rendered time and again; Sahib Ram vs. State of Haryana,

(1995) Supp (1) SCC 18, Shyam Babu Verma vs. Union of India,

(1994) 2 SCC 521, Union of India vs. M. Bhaskar, (1996) 4 SCC 416 and V. Gangaram vs. Regional Jt. Director, (1997) 6 SCC 139 and in a recent decision in the matter of Thomas Daniel vs. State of Kerala & Ors., (2022) SCC online SC 536.

¶9This Court has consistently taken the view that if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, such excess payments of emoluments or allowances are not recoverable. It is held that such relief against the recovery is not because of any right of the employee but in equity, exercising judicial discretion to provide relief to the employee from the hardship that will be caused if the recovery is ordered.o

¶10In Thomas Daniel (supra), this Court has held thus in paras 10, 11, 12 and 13: "10. In Sahib Ram v. State of Haryana, this Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the

authority concerned, without any misrepresentation on part of the employees. It was held thus:o "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."o

¶11In Col. B.J. Akkara (Retd.) v. Government of India2 this Court considered an identical question as under: "27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121], Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652]):o

(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.o

(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.o

¶28Such relief, restraining back recovery 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.o

¶29On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made."o

¶12In Syed Abdul Qadir v. State of Bihar3 excess payment was sought to be recovered which was made to the appellants-teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/understanding of a Rule or Order. It was held thus:o "59. Undoubtedly, the excess amount that has been paid to the appellant 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 appellant 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."o

¶13In State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus: "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 employee concerned. If the effect of the recovery from the employee concerned 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.o Xxxxxxxxxo

¶18It 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:o

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

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

(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.o

(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.o

(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."o o

¶5In the case at hand, there is nothing in the written statement that the petitioner received the amount by making any misrepresentation or concealment of facts.

¶6Despite best efforts the learned State counsel has not been able to dispute the factual position and draw out any distinctive aspects in the aforementioned judgment or cite any contrary law.

¶7In view of the afore, the present petitions are partly allowed insofar as recovery ordered is concerned.

¶8Photocopy of this order be placed on the connected files.

(AMAN CHAUDHARY) JUDGE

03.05.2025 ashok