Shri Shanker Prashad Mukerji vs Union Ofindia And Anr.
2013 Latest Caselaw 4126 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) No.7835/2012

%                                                12th September, 2013

SHRI SHANKER PRASHAD MUKERJI               ..... Petitioner
                 Through: Mr. Manoj Chatterjee, Advocate with
                          Ms. K. Iyer, Advocate and Mr. Basab
                          Sengupta, Advocate.

                         versus

UNION OFINDIA AND ANR.                            ..... Respondents
                  Through:           Mr. Ravinder Agarwal, Advocate
                                     with Mr. Girish Panda, Advocate for
                                     respondent Nos.1 to 3.
                                     Mr. Rajiv Kapur, Advocate with Ms.
                                     Vatsala Rai, Advocate for respondent
                                     Nos.4 and 5.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes


VALMIKI J. MEHTA, J (ORAL)

1.           By this writ petition, the petitioner who retired as a Vice

Chairman of the Central Administrative Tribunal (CAT) impugns the letter

dated 9.4.2012 issued by the respondent No.2 to the respondent No.4

whereby recovery was directed to be made from the pension being paid to

the petitioner.

W.P.(C) No.7835/2012                                         Page 1 of 6
 2.           The reason for recovery being initiated by the respondent No.2

is because the pension paid to the petitioner was in excess of the amount

provided under the proviso to Sub Rule 2 of Rule 8 of the Central

Administrative Tribunal (Salaries & Allowances & Conditions of Service of

Chairman, Vice Chairman and Members) Rules, 1985 (hereinafter referred

to as the "subject Rules"). As per the proviso to Rule 8(2), pension which is

granted to a Chairman or Vice Chairman or a Member of CAT cannot

exceed the pension prescribed for a Judge of the High Court. Petitioner

retired on 17.5.1993. Excess payment is said to have commenced from

1.1.1996 in violation to proviso to Rule 8(2). Respondent No.2 therefore

seeks to recover the excess pension paid.


3.           The issue with respect to recovery of excess payments which

are made to government servants and whether the government can or cannot

recover the same, although payments are made without anybody‟s fault or a

fraud being played, has been the subject matter of the recent judgment of the

Supreme Court in the case of Chandi Prasad Uniyal and Ors. Vs. State of

Uttarakhand and Ors. (2012) 8 SCC 417. In this judgment, the Supreme

Court has held that earlier judgments of the Supreme Court did not lay down

the principle of law that if there is misrepresentation or fraud in recipient of

the excess money, then, only the amount excess paid can be recovered.
W.P.(C) No.7835/2012                                              Page 2 of 6
 Supreme Court has held that any amount which is paid even by a mistake i.e

without fault of any person, can also be recovered because it is public money

or tax payers‟ money which is in question. Para 14 of this judgment is

relevant 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)
4.             In the present case it is an undisputed fact emerging on record

that pension which was paid to the petitioner w.e.f 1.1.1996 was in excess of

the pension payable to a Judge of the High Court. Once that is so, any

amount paid to the petitioner would be in excess and in violation of the

proviso to Rule 8(2) of subject Rules. I cannot agree with the contention as

raised on behalf of the petitioner that proviso to Rule 8(2) only applies on


W.P.(C) No.7835/2012                                                Page 3 of 6
 the date of fixation of pension and not subsequently. Nothing contained in

the proviso to Rule 8(2) states that the said proviso will not continue to

apply during the entire period in which pension is paid to a person such as

the petitioner/Vice Chairman of the CAT.


5.           Counsel for the petitioner also sought to rely upon Section

25(1) of the High Court Judges ( Salaries and Conditions of Service) Act,

1954 to argue that the said provision deals with the fact that the

salary/pension of a Judge will not be less than that which is payable to a

Judge on the passing of the Act. In my opinion, reliance placed upon

Section 25(1) is misconceived because the High Court Judges (Salaries and

Conditions of Service) Act, 1954 was passed way back in the year 1954 and

amendment thereto was made w.e.f 1958. The object was that so far a High

Court Judge who retired prior to 1954 is concerned, merely because the 1954

Act was passed, the amount payable to a retired Judge should not be reduced

adversely. In fact, the provision of Section 25(1) which is relied upon by the

petitioner goes against the petitioner because there is no similar provision

like Section 25(1) in the subject Rules as applicable to Chairman or Vice

Chairman or Member of the CAT.




W.P.(C) No.7835/2012                                             Page 4 of 6
 6.            Counsel for the petitioner finally sought to rely upon Section 10

of the Administrative Tribunals Act, 1985 (hereinafter referred to as „the

Act‟) to argue that the pension once fixed thereafter the same cannot be

reduced. This Section 10 of Act reads as under:-


     "Section 10. Salaries and allowances and other terms and
     conditions of service of Chairman, Vice-Chairman and other
     Members.-The salaries and allowances payable to, and the other
     terms and conditions of service (including pension, gratuity and other
     retirement benefits) of, the Chairman, and other Members shall be
     such as may be prescribed by the Central Government:
        Provided that neither the salary and allowances nor the other terms
     and conditions of service of the Chairman, or other Member shall be
     varied to his disadvantage after his appointment:
        Provided further that where a serving Government officer is
     appointed as a Member, he shall be deemed to have retired from the
     service to which he belonged on the date on which he assumed the
     charge of the Member but his subsequent service as Member shall, at
     his option, be reckoned as a post-retirement re-employment for
     pension and other retirement benefits in the service to which he
     belonged."
7.            In my opinion, the interpretation which is sought to be given by

the petitioner upon Section 10 is misconceived for the reason that it pertains

to payment of salary and allowances not being varied to the disadvantage

after the appointment of the Chairman or Vice Chairman or other Members.

This is specifically so provided in the proviso to Section 10. The expression

"appointment" is extremely relevant because the object of Section 10 was

not to allow change in the salary and allowances payable to a Chairman or
W.P.(C) No.7835/2012                                              Page 5 of 6
 Vice Chairman or Member of CAT after his „appointment‟ and not at the

date of retirement. The first part of Section 10, and which also includes the

expression "pension", specifically states that amount will be such as

prescribed by the Central Government, and therefore Section 10 will

necessarily have to be read alongwith Rule 8 of the subject Rules. In case of

any ambiguity in the language, Courts have regularly employed the principle

of harmonious construction and which I adopt in the present case by taking

language of Section 10 of the Act alongwith the language found in proviso

to Rule 8(2), and when so done it is clear that pension to a Member or Vice

Chairman or Chairman, CAT cannot at any time be in excess of the pension

payable to a Judge of the High Court.

8.           Therefore, I do not find any language at all in Section 10 that a

pension once fixed, even if the same is in violation of proviso to Rule 8(2),

the same cannot be re-fixed at the correct amount or that there cannot be any

recovery of the excess payment made.

9.           In view of the above, there is no merit in the petition which is

therefore dismissed, leaving the parties to bear their own costs.



SEPTEMBER 12, 2013                             VALMIKI J. MEHTA, J.

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