Rajya Sabha Secretariat vs P.S. Verma
2017 Latest Caselaw 3881 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RSA No.106/2017

%                                                      3rd August, 2017

RAJYA SABHA SECRETARIAT                                ..... Appellant
                 Through:                Ms. Zubeda Begum, Advocate.
                           versus
P.S. VERMA                                             ..... Respondent

                           Through:      Mr. K.S. Pathania, Advocate.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal under Section 100 of Code

of Civil Procedure, 1908 (CPC) is filed by the

appellant/plaintiff/Rajya Sabha Secretariat impugning the concurrent

judgments of the courts below; of the Trial Court dated 14.12.2015

and the First Appellate Court dated 23.12.2016; by which the suit filed

by the appellant/plaintiff for recovery of Rs.39,010/- along with

interest at 18% per annum has been dismissed.

2. Before I turn to the discussion on the facts of the present

case, I must express my anguish with the appellant/plaintiff which is

the Rajya Sabha Secretariat and an arm of the legislative body of this

country, that it is not only harassing the respondent/defendant for a

minor amount of Rs.39,010/- but also that by its actions valuable

judicial time of three courts being the trial court, the first appellate

court as also this Court has been completely wasted. The judicial time

of this Court is especially wasted inasmuch as this RSA was filed on

20.3.2017 and which is after around one year and nine months after

passing by the judgment by the Supreme Court on 18.12.2014 in the

case of State of Punjab & Others Vs. Rafiq Masih (White Washer) &

Others (2015) 4 SCC 334 and the ratio of which judgment shows that

the suit was completely misconceived. The below mentioned

discussion shows that not only the present appeal is totally frivolous

and flies in the face of the ratio of the judgment of the Supreme Court

in the case of Rafiq Masih (supra), this matter was listed today after

giving one week time to the counsel for the appellant/plaintiff to find

out whether this appeal should be pursued in the facts of the present

case, but learned counsel for the appellant/plaintiff states that in view

of Rajya Sabha being in session, the counsel could not effectively

contact anyone who could take a decision that this appeal should not

be pursued.

3. With the aforesaid initial statement, let me turn to the

facts of the case as also the issues involved. I will at an appropriate

stage reproduce the exhaustive discussion by the trial court in its

judgment dated 14.12.2015 duly referring to the ratio in the case of

Rafiq Masih (supra) that suit had to be dismissed, and which also

shows that this second appeal not only has to be dismissed as no

substantial question of law arises but also that this appeal should be

dismissed with strict terms upon the appellant/plaintiff.

4.(i) The facts of the case are that the respondent/defendant

was employed with the appellant/plainitff w.e.f 1.6.2000 as a Senior

Private Secretary in the pay-scale of Rs.10,000-325-15,200/-. The

case of the appellant/plaintiff was that the pay-scale of the

respondent/defendant was wrongly fixed inasmuch as since the

respondent/defendant was earlier employed and had retired from the

Ministry of Commerce on 31.10.1997 drawing the pay-scale of

Rs.6500-10,500/-, therefore, the pension which was being received by

the respondent/defendant was liable to be ignored in determining the

monetary package payable to the respondent/defendant. The

respondent/defendant worked with the appellant/plaintiff from

1.6.2000 till 9.5.2002 when the services of the respondent/defendant

with the appellant/plaintiff came to an end/terminated on account of

request of the respondent/defendant. The case of the appellant/plaintiff

is that while settling the dues of the respondent/defendant it came to

its notice that the respondent/defendant was over-paid an amount of

Rs.39,010/- on account of pension amount of the respondent/defendant

not being deducted from the monetary package of the

respondent/defendant and which was required to be done in terms of

DOPT circular dated 2.7.1999. The subject suit was thus filed seeking

recovery of Rs. 39,010/- said to be overpayment to

respondent/defendant.

(ii) How the amount of Rs.39,010/- is arrived at is stated in the

present appeal of the appellant/plaintiff as under:-

"Initial amount to be recovered (as on 26 March, 2002): Rs.91,779/- (On account of excess payment of superannuation pension; @ Rs.4370/- per month; from June 2000 to February 2002) Sr. No. Source of Recovery Amount Balance amount to be Recovered (inRs.) recovered (in Rs.)

i) from pay arrears (2 advance 23,617/- 68,153/-

increment) on 26.3.2002

ii) from other allowances 5,500/- 62,653/-

arrears (presently called Parliamentary Allowance)

on 02.04.2002

iii) from salary deduction (April, 15,000/- 47,653/-

2002) vide bill dated 22.04.2002

iv) from salary deduction (May, 4,753/- 42,900/-

2002) vide bill dated 17.05.2002

v) from other allowances vide 3,800/- 39,100/-

bill dated 17.07.2002

(iii) The appellant/plaintiff further pleaded in the plaint that the

respondent/defendant was asked to deposit the amount and thereafter

reminders were also sent and these are dated 28.2.2002 and 2.6.2004.

It is further pleaded by the appellant/plaintiff that instead of depositing

the amount, the respondent/defendant claimed that he had paid income

tax on the higher amount received and therefore the appellant/plaintiff

must give a necessary certificate so that he can recover the excess

amount of income tax paid from the income tax authority/income tax

department. The appellant/plaintiff pleads that since the amount in

question was not deposited with the appellant/plaintiff by the

respondent/defendant, therefore the subject suit was filed for recovery.

5. On facts respondent/defendant did not dispute what was

stated by the appellant/plaintiff with respect to the applicability of the

DOPT circular dated 2.7.1999, however the respondent/defendant

pleaded that during his course of service with the appellant/plaintiff he

had regularly asked the appellant/plaintiff to deduct his pension

amount from his monthly package but the appellant/plaintiff however

failed to do so. The respondent/defendant relies upon his

communication to the appellant/plaintiff including his letters dated

18.7.2000, 21.7.2000, 26.7.2000, 12.11.2001, 4.10.2002 and

30.7.2004. In fact, the written statement filed by the

respondent/defendant shows that the respondent/defendant has always

been very fair and he asked the appellant/plaintiff to deduct the

amount of pension from monthly package being received by him and

he only prayed that he would quietly refund the balance to the

appellant/plaintiff and the appellant/plaintiff must issue the necessary

certificate so that the respondent/defendant can take back the excess

tax paid to the income tax department.

6. After pleadings were complete, the trial court framed the

following issues:-

     "i.     Whether the suit is time barred? OPD
     ii.     Whether the plaintiff is entitled for decree of Rs.39,010/- as
             prayed? OPP
     iii.    Whether the plaintiff is entitled for interest, if yes, at what
             rate and at for what period? OPP
     iv.     Relief."

7. I need not discuss the issue with respect to the suit being

within limitation inasmuch as suit has rightly held to be within

limitation and counsel for the respondent/defendant does not dispute

this aspect.

8. The only issue to be decided is whether the amount paid

by the appellant/plaintiff alleged to be under a mistake can be

recovered from the respondent/defendant. In this regard, the trial

court has exhaustively dealt with this issue in paras 24 to 28 in its

judgment and whereby the trial court held that ratio of the judgment of

the Supreme Court in the case of Rafiq Masih (supra) is that no

recovery can be made from a retired employee and since the

respondent/defendant‟s services with the appellant/plaintiff came to an

end on 9.5.2002, therefore after 9.5.2002, and much less by filing the

suit not only on the last date of limitation of three years from 9.5.2002,

the suit amount cannot be recovered. The aforesaid paras 24 to 28 of

the judgment of the trial court dated 14.12.2015 read as under:-

"24. It was argued by the counsel for the defendant that the recovery so sought by the plaintiff cannot be effected in terms of judgment passed by Hon'ble Apex Court in Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 and judgment passed by Hon'ble High Court of Delhi in Brahma Dutt Mishra v. Union of India 114 (2004) DLT 99.

25. On the other hand counsel for the plaintiff relied upon observations made by Hon'ble Apex Court in Chandi Prasad Uniyal v. State of

Uttarakhand, (2012) 8 SCC 417 and argued that recovery so sought can be done by the plaintiff from the defendant.

26. Hon‟ble Apex Court in State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 while settling the controversy in the abovesaid two judgment has observed as under:

"3. The issue that we have been required to adjudicate is, whether all the private respondents, against whom an order of recovery (of the excess amount) has been made, should be exempted in law, from the reimbursement of the same to the employer. For the applicability of the instant order, and the conclusions recorded by us hereinafter, the ingredients depicted in the foregoing two paragraphs are essentially indispensable.

4. Merely on account of the fact that the release of these monetary benefits was based on a mistaken belief at the hands of the employer, and further, because the employees had no role in the determination of the employer, could it be legally feasible, for the private respondents to assert that they should be exempted from refunding the excess amount received by them? Insofar as the above issue is concerned, it is necessary to keep in mind, that the following reference was made by a Division Bench [Rakesh Kumar v. State of Haryana, (2014) 8 SCC 892] of two Judges of this Court, for consideration by a larger Bench: (Rakesh Kumar case[Rakesh Kumar v. State of Haryana, (2014) 8 SCC 892] , SCC p. 893, para 2) "2. In view of an apparent difference of views expressed on the one hand in Shyam Babu Verma v. Union of India [Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] and Sahib Ram v.State of Haryana [Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248] ; and on the other hand in Chandi Prasad Uniyal v. State of Uttarakhand [Chandi Prasad Uniyal v. State of Uttarakhand, (2012) 8 SCC 417 : (2012) 4 SCC (Civ) 450] , we are of the view that the remaining special leave petitions should be placed before a Bench of three Judges. The Registry is accordingly directed to place the file of the remaining special leave petitions before the Hon'ble the Chief Justice of India for taking instructions for the constitution of a Bench of three Judges, to adjudicate upon the present controversy." (emphasis supplied)

5. The aforesaid reference was answered by a Division Bench of three Judges on 8-7-2014. While disposing of the reference, the three-Judge [State of Punjab v. Rafiq Masih, (2014) 8 SCC 883 : (2014) 4 SCC (Civ) 657 : (2014) 6 SCC (Cri) 154 : (2014) 3 SCC (L&S) 134] Division Bench, recorded the following observations in para 6: (Rafiq Masih case [State of Punjab v. Rafiq Masih, (2014) 8 SCC 883 : (2014) 4 SCC (Civ) 657 : (2014) 6 SCC (Cri) 154 : (2014) 3 SCC (L&S) 134] , SCC pp. 888-

89)

"6. In our considered view, the observations made by the Court not to recover the excess amount paid to the appellant therein were in exercise of its extraordinary powers under Article 142 of the Constitution of India which vest the power in this Court to pass equitable orders in the ends of justice."(emphasis supplied) Having recorded the above observations, the reference was answered as under: (Rafiq Masih case [State of Punjab v. Rafiq Masih, (2014) 8 SCC 883 : (2014) 4 SCC (Civ) 657 : (2014) 6 SCC (Cri) 154 : (2014) 3 SCC (L&S) 134] , SCC p. 891, paras 13-14) "13. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments[Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , [Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248] and the latter judgment [Chandi Prasad Uniyal v. State of Uttarakhand, (2012) 8 SCC 417 : (2012) 4 SCC (Civ) 450].

14. In that view of the above, we are of the considered opinion that reference was unnecessary. Therefore, without answering the reference, we send back the matters to the Division Bench for their appropriate disposal." (emphasis supplied)

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 the 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.

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.

9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality can be found in Articles 14 to 18 contained in Part III of the Constitution of India, dealing with "fundamental rights". These articles of the Constitution, besides assuring equality before the law and equal protection of the laws, also disallow discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracised section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39-A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "directive principles of State policy". These articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice--social, economic and political, by inter alia minimising monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections."

27. Hon‟ble Apex Court further laid down certain situations where recovery from the employee is impermissible in law "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 hereinabove, we may, as a ready reference, 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) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(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.

(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."

28. It is categorically observed by the Hon'ble Apex Court in the judgment that recovery from retired employees is impermissible. As such in the present case in hand where defendant is a retired employee of plaintiff, recovery of the amount so sought by the plaintiff cannot be allowed."

(emphasis added)

9. It is noted that in the case of Rafiq Masih (supra)

Supreme Court has referred to all its earlier judgments including the

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

& Others vs. State of Uttarakhand & Others, (2012) 8 SCC 417 and

held that the issue with respect to recovery of dues as against the

employees by the government or government companies or

government entities has to be decided on the touchstone of equity and

harshness resultantly caused upon the employees once the facts which

emerge are that the employee by his fraud has not caused any

overpayment to him. In the present case also, admittedly there is no

fraud which is alleged against the respondent/defendant and it is seen

that in fact the respondent/defendant has himself been asking the

appellant/plaintiff to take necessary corrective action but the

appellant/plaintiff did so only partially. I have already reproduced

above the chart as to how the sum of Rs.39,010/- claimed in the suit

has been arrived at and which shows that recoveries were being made

from the respondent/defendant by the appellant/plaintiff right from

26.3.2002. Also, it is required to be noted that the Supreme Court in

the case of Rafiq Masih (supra) as per para 18 laid down the ratio

with respect to recoveries to be effective but Supreme Court

conditioned the ratio in para 18 by stating that the situations are

mentioned in para 18 are not exhaustive and which would not

necessarily cover all situations of harshness upon the employees by

the recovery to be affected where payments have been mistakenly

made by the employer to the employee. In my opinion, the trial court

has very thoroughly, exhaustively and lucidly co-related the facts of

the present case with the ratio of the judgment in the case of Rafiq

Masih (supra) and rightly held that from a retired employee such as

the respondent/defendant, no recoveries can be affected.

10. I reject the argument urged on behalf of the

appellant/plaintiff that para 18(ii) of Rafiq Masih (supra) does not

apply because respondent/defendant is not a retired employee but was

only a contractual employee of the appellant/plaintiff as the

respondent/defendant had earlier retired from the Ministry of

Commerce on 31.10.1997 inasmuch as the observation of the Supreme

Court in the case of Rafiq Masih (supra) in para 18(ii) is with respect

to a general issue of retirement i.e of the service of an employee

coming to an end. The services of the respondent/defendant came to

an end with the appellant/plaintiff on 9.5.2002 and clearly therefore

the expression „retired‟ found in para 18(ii) of the judgment in the case

of Rafiq Masih (supra) will apply to persons such as the

respondent/defendant whose services came to an end with the

appellant/plaintiff being a government/government organization/arm

of the State.

11.             I   have   already   expressed   my   anguish    at   the

commencement of this judgment.          I have also observed that this

litigation is totally frivolous and more so its reaching the stage of

second appeal under Section 100 CPC and for maintainability of

which a substantial question of law must arise. Also, this second

appeal is filed after around one year and nine months of the Supreme

Court passing its judgment in the case of Rafiq Masih (supra) and it is

not open to the body such as the appellant/plaintiff that it was not

aware or was not bound by the ratio of the judgment in the case of

Rafiq Masih (supra).

12. In view of the above discussion, no substantial question

of law arises. This second appeal is therefore dismissed. It is noted

that the respondent/defendant has now been harassed by this litigation

from 9.5.2005 i.e over 10 years and neither the trial court nor the first

appellate court has awarded any costs to the respondent/defendant.

Therefore though the amount claimed by the appellant/plaintiff is not a

large amount and is only an amount of Rs.39,010/-, however

considering the harassment to the respondent/defendant by as many as

three tiers of this litigation, this appeal is dismissed with exemplary

costs of Rs.1 lakh. Out of the amount of Rs.1 lakh, a sum of

Rs.50,000/- will be paid to the respondent/defendant and a sum of

Rs.50,000/- will be deposited by that person who has directed/opined

filing of the present appeal and which costs of Rs.50,000/- will be

deposited by such person(s) with the website

www.bharatkeveer.gov.in and affidavit to this effect will be filed in

this Court on behalf of the appellant/plaintiff.

AUGUST 03, 2017                              VALMIKI J. MEHTA, J
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