Sh. Mahender Singh & Anr. vs Union Of India & Anr.
2013 Latest Caselaw 4644 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No. 6413/2013 & CM No.13976/2013 (Stay)

%                                                    7th October, 2013

SH. MAHENDER SINGH & ANR.                                 ......Petitioners
                 Through:                Mr. Y.D.Nagar, Advocate.


                          VERSUS

UNION OF INDIA & ANR.                                      ...... Respondents

Through: Mr. Hashmat Nabi, Advocate for R-1.

Mr. Jagat Arora, Advocate for R-2&3.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by two petitioners. The two petitioners

impugn the action of the employer-Dena Bank, represented by respondent

nos. 2 and 3 herein, whereby the employer has sought to make recovery of

amounts which were wrongly paid to the petitioner as increments.

Petitioners had claimed benefits of payment of increments by claiming that

they had cleared the B.A Graduation Degree by passing the „Sahitya

Sudhakar‟ Examination of „Bombay Hindi Vidyapeeth‟.

2. There is a little bit of history to this case and which needs to be noted

because actually the first recoveries were sought to be effected by the

employer in terms of the letter dated 16.7.1999. An association of the

employees alongwith the two petitioners herein, approached this Court in

W.P.(C) No. 6661/1999 challenging the actions of recoveries initiated by the

employer. This writ petition was disposed of in terms of the order dated

21.7.2009 by a learned Single Judge of this Court whereby the petitioners

were entitled to make representations and the employer was to take

clarification from the Ministry of Human Resource and Development with

respect to equivalence of Sahitya Sudhakar Examination of Bombay Hindi

Vidyapith being equal or not equal to a Graduation Degree.

3. Ministry has now given the following clarification vide its letter dated

19.3.2010:-

"To The General Manager (HRM & GAD) Human Resource Management Department Dena Corporate Centre, 3rd Floor Plot No. C-10, G Block, Bandra-Kurla Complex, Bandra(East), Mumbai-400051 Sub: Recognition of the Sahitya Alankar examination conducted by Bombay Hindi Vidhyapeeth, Mumbai- Regarding.

Ref: In the matter of Order dated 21-07-2009 passed by Hon‟ble High Court of Delhi in Writ Petition(Civil) No.6661/1999 Dena Bank Supreme Court/ST Employees

Welfare Association (Regd) & others versus Union of India and others.

Sir, With reference to your letter No. DCC/LEG/HC- 564/748/2009 dated 30-12-2009 addressed to the Under Secretary, M/O. HRD, New Delhi on the subject cited above in this connection it is clarified that on recommendations of Hindi Shiksha Samiti the Central Hindi Directorate M/O. H.R.D. Govt. of India has been extendening recognisation to the various Hindi courses run by Voluntary Hindi Organizations. These courses have been recognized for one subject Hindi to their corresponding equivalent courses of Boards/Universities etc.

It is confirmed that Sahitya Sudhakar examination conducted by Bombay Hindi Vidyapeeth, Mumbai is recognized as equivalent to B.A.(Hindi Standard) for one subject of Hindi only. It is further stated that recognition of the said course is not fullfledged B.A.Degree.

Yours faithfully (Phool Singh) Assistant Director"

4. The last line of the aforesaid letter clearly shows that the Ministry had

opined that the Sahitya Sudhakar examination conducted by Bombay Hindi

Vidyapeeth is not a full-fledged B.A.Degree course. Counsel for the

petitioners also agrees that the Sahitya Sudhakar examination is only a 2

year course of four subjects whereas a normal graduation degree is of 3

years and which comprises of various subjects for each of the three years.

5. Petitioners have been enjoying benefits of monetary emoluments in

terms of the increments which were granted by the employer itself. In this

case, petitioners no doubt have acted bonafidely because before pursuing

their course of studies for Sahitya Sudhakar examination of Bombay

Vidyapeeth, they took positive clarification from the employer and only

thereafter pursued their Sahitya Sudhakar Studies, however, now this aspect

of wrong amounts bonafidely received has been clarified in the recent

judgment of the Supreme Court in the case of Chandi Prasad Uniyal &

Ors. Vs. State of Uttrakhand & Ors. (2012) 8 SCC 417 wherein the

Supreme Court has said that even if monies which are not due are paid under

a bonafide mistake, yet such monies can always be recovered. Supreme

Court has observed that public monies and tax payers monies if are received

by a person without any legal sanction, there is no law which de-bars

recoveries of such monies except in the cases of extreme hardship. The

relevant para of the judgment in the case of Chandi Prasad Uniyal (supra)

is para 14 and the same reads as under:-

"14. 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."

(underlining added)

6. In the present case, the only aspect which therefore to be examined is

whether there would be extreme hardship upon the petitioners.

I am of the opinion that so far as the petitioner no.2 is concerned,

there would be hardship for the reasons stated hereinafter but so far as the

petitioner no.1 is concerned, there would be no hardship. Petitioner no.1 had

received increments for the first time in March, 1999 and they were

withdrawn soon thereafter in July, 1999. Thereafter, petitioner no.1 has

received amounts only pursuant to the interim orders of this Court and

therefore, it cannot be said that there would be hardship upon the petitioner

no.1 when the respondent nos.2 and 3 recover the amounts. Therefore, so

far as the petitioner no.1 is concerned, the employer-Dena Bank can recover

all the amounts which are paid under mistake as increments, though actually

they were not due. However, to the extent of tuition fees incurred by

petitioner no.1, directions are being subsequently given.

7. So far as petitioner no.2 is concerned, he has received increments

w.e.f June 1993. This increment was withdrawn for the first time only in

terms of the order of the employer dated 16.7.1999. Recoveries are however

sought to be made right from June, 1993 onwards. In my opinion, for the

period of 3 years prior to July, 1999, there would be grave hardship upon the

petitioner no.2 and therefore it is directed that so far as the period prior to

July, 1996 is concerned, viz from June 1993 to July 1996, respondent nos. 2

and 3 should not recover this amount including interest because petitioner

no.2 has incurred expenditure including tuition fees for Sahitya Sudhakar

studies for being successful.

8. Therefore, in the peculiar facts of this case, considering that

respondent nos. 2 and 3 themselves allowed the petitioners to believe that

they were to get the benefits of monetary increments on account of passing

of the Sahitya Sudhakar examination, and consequently petitioners pursued

such studies, petitioners on account of extreme hardship will be entitled to

the relief that respondent nos. 2 and 3 should not recover the tuition fees

which the petitioners paid for appearing in and passing the Sahitya Sudhakar

Examination conducted by Bombay Hindi Vidyapeeth. Petitioners will give

the details of these amounts alongwith proofs of the expenditure incurred by

them, and to the extent of such expenditure incurred, respondent nos. 2 and 3

would not recover the amounts from the petitioners.

9. In view of the above, the writ petition is dismissed, however,

petitioners are given the limited relief that so far as the petitioner no.2 is

concerned, no recovery will be made for payments made to him prior to

July, 1996 and so far as both the petitioners are concerned, on their giving

details of expenditure incurred for their tuition fees alongwith necessary

proof, such amounts will not be recovered by the respondent nos. 2 and 3

from the petitioners.

10. The writ petition is dismissed except to the limited extent stated

above. Parties are left to bear their own costs.

OCTOBER 07, 2013                               VALMIKI J. MEHTA, J.
ib