Union Of India vs Manoj Kumar Senapati
2021 Latest Caselaw 3653 Chatt

                                     1

                                                                        NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                     Writ Petition (S) No. 624 of 2020
1.   Union of India, Through the Secretary, Ministry of Textiles, Udyog
     Bhawan, New Delhi.

2.   Central Silk Board, Through the Member Secretary, CSB Complex,
     B.T.M. Layout, Madivala, Banglore - 560068, Karnataka.

3.   Basic Tasar Silkworm Seed Organisation, Central Silk Board, Through
     the Director (Ministry of Textiles, Government of India) Pendari-via-P.O.
     Bharni, District Bilaspur (C.G.)

                                                               ---- Petitioners

                                  Versus

     Inuganti Venkata Narasimha Murthy, S/o Late Sri I. Raja Rao, Aged
     about 54 years, R/o D.No. 23-19-54, Srinivas Apartment, Flat No. S/1
     Lalithanagar, Haripuram Tehsil Rajahmundry, Police Station Rajahmunry,
     District East Godavari (A.P.)

                                                              ---- Respondent

with

Writ Petition (S) No. 701 of 2020

1. Union of India, Through the Secretary, Ministry of Textiles, Udyog Bhawan, New Delhi.

2. Central Silk Board, Through the Member Secretary, CSB Complex, B.T.M. Layout, Madivala, Banglore - 560068, Karnataka.

3. Basic Tasar Silkworm Seed Organisation, Central Silk Board, Through the Director (Ministry of Textiles, Government of India) Pendari-via-P.O. Bharni, District Bilaspur (C.G.)

---- Petitioners

Versus

Manoj Kumar Senapati, S/o Kate Pitamber Senapati, Aged about 60 years, R/o Post - Dehurda, Behind Electric Office, Tehsil and Police Station Bhograi, District Balasore, Odisha.

---- Respondent

with

Writ Petition (S) No. 703 of 2020

1. Union of India, Through the Secretary, Ministry of Textiles, Udyog Bhawan, New Delhi.

2. Central Silk Board, Through the Member Secretary, CSB Complex, B.T.M. Layout, Madivala, Banglore - 560068, Karnataka.

3. Basic Tasar Silkworm Seed Organisation, Central Silk Board, Through the Director (Ministry of Textiles, Government of India) Pendari-via-P.O. Bharni, District Bilaspur (C.G.)

---- Petitioners

Versus

Rachakona Gnaneshwar, S/o Late R. Venkaiah, Aged about 56 years, Resident of Plot No. 179, Christian Colony, Hastinapuram South, District- Hyderabad, Telangana.

---- Respondent

with

Writ Petition (S) No. 705 of 2020

1. Union of India, Through the Secretary, Ministry of Textiles, Udyog Bhawan, New Delhi.

2. Central Silk Board, Through the Member Secretary, CSB Complex, B.T.M. Layout, Madivala, Banglore - 560068, Karnataka.

3. Basic Tasar Silkworm Seed Organisation, Central Silk Board, Through the Director (Ministry of Textiles, Government of India) Pendari-via-P.O. Bharni, District Bilaspur (C.G.)

---- Petitioners

Versus

Ramesh Chanddra Prusty, S/o Late Shri Bhabagrahi Prusty, Aged about 56 years, R/o Basic Seed Multiplication and Training Centre (BSMTC), Central Silk Board, Government of India, Kashipur, Near Petrol Pump, Police Station Keonjhar, District- Keonjhar (Odisha).

---- Respondent

with

Writ Petition (S) No. 706 of 2020

1. Union of India, Through the Secretary, Ministry of Textiles, Udyog Bhawan, New Delhi.

2. Central Silk Board, Through the Member Secretary, CSB Complex, B.T.M. Layout, Madivala, Banglore - 560068, Karnataka.

3. Basic Tasar Silkworm Seed Organisation, Central Silk Board, Through the Director (Ministry of Textiles, Government of India) Pendari-via-P.O. Bharni, District Bilaspur (C.G.)

---- Petitioners

Versus

Milap Ram Chandra, S/o Late Shri Mayaram, Aged about 56 years, R/o Ruchika Vihar, Ward No. 14, Sirgitti, District - Bilaspur (C.G.)

---- Respondent

with

Writ Petition (S) No. 719 of 2020

1. Union of India, Through the Secretary, Ministry of Textiles, Udyog Bhawan, New Delhi.

2. Central Silk Board, Through the Member Secretary, CSB Complex, B.T.M. Layout, Madivala, Banglore - 560068, Karnataka.

3. Basic Tasar Silkworm Seed Organisation, Central Silk Board, Through the Director (Ministry of Textiles, Government of India) Pendari-via-P.O. Bharni, District Bilaspur (C.G.)

---- Petitioners

Versus

Prabhat Ranjan Dutta, S/o Late Shri Nalini Mohan Dutt, Aged about 54 years, R/o Village - Samina, Post Kopisingha, District Sundargarh (Odisha)

---- Respondent

with

Writ Petition (S) No. 736 of 2020

1. Union of India, Through the Secretary, Ministry of Textiles, Udyog Bhawan, New Delhi.

2. Central Silk Board, Through the Member Secretary, CSB Complex, B.T.M. Layout, Madivala, Banglore - 560068, Karnataka.

3. Basic Tasar Silkworm Seed Organisation, Central Silk Board, Through the Director (Ministry of Textiles, Government of India) Pendari-via-P.O. Bharni, District Bilaspur (C.G.)

---- Petitioners

Versus

Naresh Chanddra Nayak, S/o Bharathi Nayak, Aged about 55 years, Resident of MTPL Junction, Chamaria Guda, Tehsil and District - Nawrangpur - 674059 Odisha

---- Respondent

with

Writ Petition (S) No. 749 of 2020

1. Union of India, Through the Secretary, Ministry of Textiles, Udyog Bhawan, New Delhi.

2. Central Silk Board, Through the Member Secretary, CSB Complex, B.T.M. Layout, Madivala, Banglore - 560068, Karnataka.

3. Basic Tasar Silkworm Seed Organisation, Central Silk Board, Through the Director (Ministry of Textiles, Government of India) Pendari-via-P.O. Bharni, District Bilaspur (C.G.)Bharni, District Bilaspur, Chhattisgarh

---- Petitioners

Versus

Pradeep Kumar Khosla, S/o Santisilo Khosla, Aged about 57 years, R/o Christian Street, Tahsil and Police Station Jeypore, District Jeypore (Odisha)

---- Respondent

with

Writ Petition (S) No. 796 of 2020

1. Union Of India Through The Secretary, Ministry Of Textiles, Udyog Bhawan, New Delhi., District : New Delhi, Delhi

2. Central Silk Board Through The Member Secretary, Csb Complex, B.T.M. Layout, Madivala, Banglore - 560068, Karnataka.

3. Basic Tasar Silkworm Seed Organisation Central Silk Board, Through The Director (Ministry Of Textiles, Government Of India), Pendari Via Post Office Bharni, District Bilaspur Chhattisgarh.

---- Petitioners

Versus

Arup Kumar Goswami, S/o Sisir Kumar Goswami, Aged about 60 years, R/o Kundu Bunglow, Beside Electric Office, Tehsil and Police Station Madhupur, District Deoghar (Jharkhand).

---- Respondent

with

Writ Petition (S) No. 801 of 2020

1. Union of India, Through the Secretary, Ministry of Textiles, Udyog Bhawan, New Delhi.

2. Central Silk Board, Through the Member Secretary, CSB Complex, B.T.M. Layout, Madivala, Banglore - 560068, Karnataka.

3. Basic Tasar Silkworm Seed Organisation, Central Silk Board, Through

the Director (Ministry of Textiles, Government of India) Pendari-via-P.O. Bharni, District Bilaspur (C.G.)Bharni District Bilaspur Chhattisgarh

---- Petitioners

Versus

K. S. Chatterjee, S/o Late Shri S. P. Chatterjee, Aged about 56 years, R/o Bainkunthpur, Ward No. 16, Near Jagannath Mandir, Tehsil And Police Station Raigarh District Raigarh (C.G.)

---- Respondent

with

Writ Petition (S) No. 808 of 2020

1. Union of India, Through the Secretary, Ministry of Textiles, Udyog Bhawan, New Delhi.

2. Central Silk Board, Through the Member Secretary, CSB Complex, B.T.M. Layout, Madivala, Banglore - 560068, Karnataka.

3. Basic Tasar Silkworm Seed Organisation, Central Silk Board, Through the Director (Ministry of Textiles, Government of India) Pendari-via-P.O. Bharni, District Bilaspur (C.G.)

---- Petitioners

Versus

A. K. Das, S/o Late Shri N. Ch. Das, Aged about 57 years, R/o MIG 2/11 Housing Board Colony Dharampur, Jagdalpu, Tehsil Jagdalpu, District Bastar (C.G.)

---- Respondent

with

Writ Petition (S) No. 817 of 2020

1. Union of India, Through the Secretary, Ministry of Textiles, Udyog Bhawan, New Delhi.

2. Central Silk Board, Through the Member Secretary, CSB Complex, B.T.M. Layout, Madivala, Banglore - 560068, Karnataka.

3. Basic Tasar Silkworm Seed Organisation, Central Silk Board, Through the Director (Ministry of Textiles, Government of India) Pendari-via-P.O. Bharni, District Bilaspur (C.G.)

---- Petitioners

Versus

Fakir Hansdah, S/o Late Kanhoo Ram Hansdah, Aged about 58 years, R/o 25-E Gaitadih Bank Colony, Gaitahdih, Post Karandih, Jamshedpur,

Tehsil - Jamshedpur, Police Station - Sundarnagar, District - East Singhbhum, Jharkhand

---- Respondent

(Cause-title taken from Case Information System)

For Petitioners : Mr. Ramakant Mishra, Assistant Solicitor General. For Respondent : Mr. Amrito Das, Advocate.

Hon'ble Shri Arup Kumar Goswami, Chief Justice

Hon'ble Shri Justice N.K. Chandravanshi, Judge

Order on Board

Per Arup Kumar Goswami, Chief Justice

13.12.2021

These batch of writ petitions, numbering 12, have been filed challenging

the common order dated 20.09.2019 passed by the learned Central

Administrative Tribunal, Jabalpur Bench, Circuit sitting at Bilaspur (for short,

'Tribunal') in Original Application Nos. 203/00886/2018, 203/00887/2018,

203/00888/2018, 203/00889/2018, 203/00890/2018, 203/00891/2018,

203/00892/2018, 203/00893/2018, 203/00894/2018, 203/00895/2018,

203/00896/2018, 203/00897/2018.

2. Heard Mr. Ramakant Mishra, learned Assistant Solicitor General

appearing for the petitioners alongwith Mr. B. Gopa Kumar, learned counsel

who has also addressed the Court on behalf of petitioner No. 2, i.e., Central

Silk Board. Also heard Mr. Amrito Das, learned counsel appearing for the

respondents in these batch of writ petitions.

3. Challenge in the Original Applications were to identical orders of

recovery passed by the petitioners in the years in 2016 and 2018 on account of

wrong fixation of pay in between 2001 and 2005.

4. As the facts involved and the relief sought are identical and as the

learned Tribunal had also disposed of all the original applications by a common

order, these batch of writ petitions are being disposed of by this common order.

5. For the purpose of disposal of the aforesaid original applications, the

learned Tribunal had referred to the Original Application No. 203/00886/2018.

For the purpose of continuity, we will also refer, wherever necessary, to the

aforesaid original application, which has resulted in filing of Writ Petition (S)

No. 706 of 2021.

6. Writ Petition (S) No. 706 of 2021 was not listed in the list today. Learned

counsel for the parties submitted that the aforesaid writ petition may be

directed to be listed in the supplementary list today itself so that all these

matters can be heard and accordingly, Writ Petition (S) No. 706 of 2021 is

listed in the supplementary list and thereafter, all these matters are taken up for

consideration.

7. The applicant in Original Application No. 203/00886/2018 was working

as Upper Division Clerk in the pay-scale of Rs. 4000-100-6000. He was

granted higher pay-scale of Rs. 5000-8000 with effect from 03.08.2003 vide

order dated 04.08.2003 on the ground that his junior was granted financial

upgradation under the 'Assured Career Progression Scheme' (for short, 'ACP').

On an Audit objection being raised by the Internal Audit Wing of Ministry of

Textiles and AG Audit to the effect that the upgradation of pay of the applicant

was not in conformity with the instructions contained in Office Memorandum

No. 35034/1/97-Estt(D) dated 09.08.1999, issued by Department of Personal

Training (DoPT), directions were issued by the Ministry of Textiles for

withdrawing higher pay-scale granted to the applicant as also to refix pay as

per his entitlement and also to recover excess payment made.

8. It is on the basis of above directions, the petitioner No. 2 passed an

order dated 16.05.2016.

9. The learned Tribunal, relying upon the decision of the Hon'ble Supreme

Court in the case of State of Punjab & Others vs. Rafiq Masih (White washer) ,

reported in (2015) 4 SCC 334, held that since the applicants were enjoying the

benefit for more than 5 years and since most of the applicants are on the verge

of their retirement, what was granted to them cannot be taken away by way of

recovery.

10. The operative portion of the order of the learned Tribunal reads as

follows:

"13. Accordingly, all these Original Applications are disposed

of with a direction that there can be a future modification of

pay scale and the pension. But what has been granted to the

applicants already cannot be taken away from them and

cannot be recovered at all. Any amount recovered be

refunded to the applicants within 90(ninety) days from the

date of receipt of a copy of this order. No order as to cost."

11. Mr. Ramakant Mishra as well as Mr. B. Gopa Kumar submit that the

reliance placed on Rafiq Masih (supra) is not applicable in the facts of the case

and in that context, they place reliance on the decision of the Hon'ble Supreme

Court in Chandi Prasad Uniyal & Others vs. State of Uttarakhand & Others,

reported in (2012) 8 SCC 417.

12. Per contra, Mr. Das has supported the impugned judgment and he has

also placed reliance on the judgment of the High Court of Karnataka in the

case of Member Secretary, Central Silk Board & Others vs. Shri M.K. Srinivas

& Others (Writ Petition No. 3422 of 2021 (S-CAT), decided on 16.03.2021) . It is

submitted that the aforesaid judgment is squarely applicable in the facts of the

present batch of writ petitions.

13. On a query of the Court, Mr. B. Gopa Kumar submits that the facts

before the Karnataka High Court in the aforesaid case and the facts in this

batch of writ petitions are similar.

14. It is not in dispute that the post of Upper Division Clerk is a Group-C

post.

15. In Chandi Prasad Uniyal (supra), the Hon'ble Supreme Court observed

that it has not laid down as a principle of law that only if there is

misrepresentation or fraud on the part of the recipients of the money in getting

the excess pay, the amount paid due to such irregular / wrong fixation of pay

can be recovered. The Hon'ble Supreme Court further observed that any

amount received by the recipient without the authority of law can always be

recovered barring a few exceptions of extreme hardships but not as a matter of

right and taking note of the facts of the case, as presented, it was held that the

case of the appellants therein did not fall in any of the exceptional categories

and that apart, there was a stipulation in the fixation order that in case of

irregular / wrong pay fixation, the institution in which the appellant were working

would be responsible for recovery of the amount received in excess from the

salary / pension.

16. In Rafiq Masih (supra) at paragraphs 6 and 7, the Hon'ble Supreme

Court observed as follows :

"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 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."

17. It was further held in Rafiq Masih (supra) that 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. It is also held that recovery from employees

in lower rung of service, would result in extreme hardship to them as it is considered

that the employees in lower rung of service would spend their entire earnings in the

upkeep and welfare of their family, and if such excess payment is allowed to be

recovered from them, it would cause them far more hardship, than the reciprocal

gains to the employer.

18. After a detailed analysis of the case law on the subject, the Hon'ble

Supreme Court in Rafiq Masih (supra) at paragraph 18 observed as follows :

"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, summarise 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, 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."

19. In M.K.Srinivas (supra), the Karnataka High Court had held that the

learned Tribunal was justified in holding that there can be no recovery of

payments already made to the respondents therein as parameters at (i), (ii), (iii)

and (v) of Rafiq Masih (supra) would apply.

20. A perusal of the materials on record would go to show that, in any view of

the matter, clauses (ii) and (iii) of the Rafiq Masih (supra) would be applicable

in the facts of these cases. Though the applicants were subsequently promoted

to the Group-B posts in the year 2016, it is an admitted position that when the

benefits were granted to them, they were holding Group-C post and they

continued to receive excess pay for more than 5 years.

21. In view of the above discussion, we see no good reason to interfere with

the order of the learned Tribunal and accordingly, the writ petitions are

dismissed. No cost.

                               Sd/-                                      Sd/-
                       (Arup Kumar Goswami)                     (N.K. Chandravanshi)
                           Chief Justice                               Judge
Brijmohan