Punjab-Haryana High Court
Bikram Kishore Kanungo vs Sant Longowal Institute Of Engg. And ... on 19 November, 2024
Neutral Citation No:=2024:PHHC:151049
CWP-22022-2015 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
213
CWP-22022-2015
Date of decision: 19.11.2024
Bikram Kishore Kanungo ....Petitioner
Versus
Sant Longowal Institute of Engg. and Tech. Longowal and another
...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY ***** Present: r. R.K. Malik, Senior Advocate with M Mr. Digvijay Singh, Advocate for the petitioner. Mr. Arvind Moudgil, Sr. Panel Counsel for respondent-UOI. Mr. Karan Singh Sandhu, Advocate for respondent Nos.1 and 2. ***** AMAN CHAUDHARY, J. (ORAL) 1. Prayer made in the present petition isforquashingoforderdated 29.09.2015,wherebythepromotiongrantedtothepetitionerasprofessorunder career advancement schemew.e.f.26.03.1999waswithdrawn,sowastheorder regarding sabbatical leave and recovery was ordered to be effected of the amount that was found tobepaidinexcess,whichthisCourtvideorderdated 14.10.2015 had stayed. 2. LearnedSeniorcounselrestrictshisprayeronlytotherecoveryof the amount on account of the fact that this benefit has beengrantedtohimin the year 2005 and it was after a decade that the impugned order came to be passed and the petitionerhasevenretiredbynow,forwhichrelianceisplaced onthejudgmentoftheHon'bleSupremeCourtinThomasDanielvs.Stateof Kerala1 the relevant paras thereof read thus: 1 2022 SCC OnLine SC 536 1 of 4 ::: Downloaded on - 22-11-2024 01:02:40 ::: Neutral Citation No:=2024:PHHC:151049 CWP-22022-2015 2 " 8. We have carefully considered the submission made at the Bar by learned counsel for the parties andperusedthematerialsplacedonthe record. 9. This Court in a catena of decisions has consistently held that ifthe excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowanceoronthebasisofaparticularinterpretationofrule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to providerelieftotheemployees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or correctedwithinashorttimeofwrongpayment,thematterbeinginthe realm of judicial discretion, the courts may on the facts and circumstances of anyparticularcaseorderforrecoveryofamountpaid in excess. 10. In Sahib Ram v. State of Haryana and Others, 1995 Supp (1) SCC 18 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: "5. Admittedly the appellant does not possess the required educationalqualifications.Underthecircumstancestheappellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellanthadbeenpaidhissalaryontherevisedscale.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 constructionmadebythePrincipalforwhich 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 wouldnotapplytothescalesprescribedbytheUniversityGrants Commission. The appeal is allowed partly without anyorderas to costs." xx xx xx 12. In Syed Abdul Qadir and Others v. State of Bihar and Others (2009) 3 SCC 475 excess payment was sought to be recovered which was made to the appellantsteachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (ServiceConditions)Rules,1983.Theappellantsthereincontendedthat even if it were to be held that the appellants were not entitled to the benefitofadditionalincrementonpromotion,theexcessamountshould not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellantscannotbeheldresponsibleinsuchasituationandrecoveryof the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that ingeneral 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: 2 of 4 ::: Downloaded on - 22-11-2024 01:02:40 ::: Neutral Citation No:=2024:PHHC:151049 CWP-22022-2015 3 " 59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraudontheirpartandtheappellantsalsohadnoknowledgethat theamountthatwasbeingpaidtothemwasmorethanwhatthey wereentitledto.Itwouldnotbeoutofplacetomentionherethat the Finance Department had, in its counter-affidavit, admitted thatitwasabonafidemistakeontheirpart.Theexcesspayment madewastheresultofwronginterpretationoftheRulethatwas 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 beneficiarieshaveeitherretiredorareonthevergeofit.Keeping in view the peculiar factsandcircumstancesofthecaseathand andtoavoidanyhardshiptotheappellantteachers,weareofthe viewthatnorecoveryoftheamountthathasbeenpaidinexcess to the appellant teachers should be made." 13. In State of Punjab and Others v. Rafiq Masih (WhiteWasher) andOthers(2015)4SCC334whereinthiscourtexaminedthevalidity of an order passed by theStatetorecoverthemonetarygainswrongly 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 ofhardshipcausedtoanemployee,if recoveryisdirectedtoreimbursetheemployeranddisallowedthesame, exempting the beneficiary employees from such recovery. It was held thus: "8. As between two parties, if a determination is rendered in favour of theparty,whichistheweakerofthetwo,withoutany seriousdetrimenttotheother(whichistrulyawelfareState),the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the PreambleoftheConstitutionofIndia.Therighttorecoverbeing pursued by the employer, will have to be compared, with the effectoftherecoveryontheemployeeconcerned.Iftheeffectof 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. xxx xxx xxx 18.Itisnotpossibletopostulateallsituationsofhardshipwhich would govern employees on the issue of recovery, where paymentshavemistakenlybeenmadebytheemployer,inexcess of their entitlement. Be that as it may, based on the decisions referredtohereinabove,wemay,asareadyreference,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) Recoveryfromtheretiredemployees,ortheemployeeswho are due to retire within one year, of the order of recovery. 3 of 4 ::: Downloaded on - 22-11-2024 01:02:40 ::: Neutral Citation No:=2024:PHHC:151049 CWP-22022-2015 4 ( iii)Recoveryfromtheemployees,whentheexcesspaymenthas been made for a period inexcessoffiveyears,beforetheorder of recovery is issued. (iv) Recovery in cases where an employeehaswrongfullybeen required to discharge duties of a higher post,andhasbeenpaid accordingly,eventhoughheshouldhaverightfullybeenrequired to work against an inferior post. (v) In any other case, where the courtarrivesattheconclusion, thatrecoveryifmadefromtheemployee,wouldbeiniquitousor harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover." 14.Comingtothefactsofthepresentcase,itisnotcontendedbeforeus that on account of the misrepresentation or fraud played by the appellant,theexcessamountshavebeenpaid.Theappellanthasretired 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. 15. Having regard to the above, we are of the view that anattemptto recover the said incrementsafterpassageoftenyearsofhisretirement is unjustified. 16. In the result, the appeal succeeds and is accordingly allowed. The JudgmentandorderoftheDivisionBenchdated02.03.2009andalsoof thelearnedSingleJudgeoftheHighCourtdated05.01.2006impugned herein, and the order dated 26.06.2000 passed bythePublicRedressal ComplaintCelloftheChiefMinisterofKeralaandtherecoveryNotice dated 09.10.1997 are hereby set aside. There shall be no order as to costs." 3. Learned counsel for the respondents despite their best efforts are unabletocontrovertthefactualpositionanddrawoutanydistinctiveaspectsin the aforementioned judgment or cite any contrary law. 4. Inviewoftheabove,thepresentpetitionisdisposedofintermsof Thomas Daniel(supra). (AMAN CHAUDHARY) JUDGE 1 9.11.2024 Hemant hether speaking/reasoned W : es / No Y Whether reportable : Yes / No 4 of 4 ::: Downloaded on - 22-11-2024 01:02:40 :::