Matinahmed Shakurbhai Baqui vs The Commissioner Of Technical ...
2022 Latest Caselaw 6665 Guj

     C/SCA/8507/2019                             JUDGMENT DATED: 26/07/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8507 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                     MATINAHMED SHAKURBHAI BAQUI
                                Versus
               THE COMMISSIONER OF TECHNICAL EDUCATION
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Appearance:
MR MA KHARADI(1032) for the Petitioner(s) No. 1
UMARFARUK M KHARADI(8155) for the Petitioner(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 26/07/2022

                            ORAL JUDGMENT

1. RULE returnable forthwith. Mr.Soaham Joshi

learned AGP waives service of notice of Rule on

behalf of the respondent State.

C/SCA/8507/2019 JUDGMENT DATED: 26/07/2022

2. With the consent of learned advocates for the

respective parties, the petition is taken up for

final hearing.

3. Under challenge in this petition is the

communication dated 10.04.2018, by which, the

respondents have ordered recovery of

Rs.3,22,372/- from the petitioner on the ground

that the grade pay of Rs.6000/- was wrongfully

granted to the petitioner.

4. Facts in brief would indicate that the petitioner

was appointed as an ad-hoc lecturer in the

electrical branch of Sir B.P.I.T. Bhavnagar, on

12.07.2001. He joined as a regular lecturer at

the C.U.Shah Government Polytechnic,

Surendranagar on 30.04.2010. He was

transferred to the Government Polytechnic on

16.07.2010.

C/SCA/8507/2019 JUDGMENT DATED: 26/07/2022

5. Mr.Kharadi learned counsel for the petitioner

would submit that by an order dated 18.01.2013,

the petitioner was granted A.G.P. of Rs.6000/-

with effect from 12.07.2007 and A.G.P. of

Rs.7,000/- with effect from 12.07.2010. When

the petitioner made a representation to include

the benefit of grade pay of Rs.6,000/-, the

respondents by an order dated 21.03.2018

passed an order refusing the benefit of the grade

pay. The grade pay of Rs.6,000/- was postponed

from the year 2007 to 30.04.2010 and that of

grade pay of Rs.7,000/- to 30.04.2013.

Thereafter, consequential order of recovery was

passed.

5.1 In support of his submissions, Mr.Kharadi

would rely on a decision of this Court rendered in

Special Civil Application Nos.6006 to 6008 of

2002 confirmed in appeal by the Division Bench

of this Court in Letters Patent Appeal No.578 of

C/SCA/8507/2019 JUDGMENT DATED: 26/07/2022

2000 dated 04.04.2001.

6. Mr.Soaham Joshi learned AGP would rely on the

affidavit in reply and submit that there was an

inadvertent mistake committed by the office of

the Principal, Government Polytechnic,

Ahmedabad, as a result of which, wrongful

benefit of A.G.P. of Rs.7,000/- with effect from

12.07.2010 was granted to the petitioner by an

order dated 18.01.2013. This was in

contravention of the Government Resolution

dated 12.11.2014, which provided that the

screening committee had to recommend the

employee for A.G.P. of Rs.6,000/- and Rs.7,000/-.

6.1 Relying on paragraph nos.8.2 to 8.4 of the

affidavit in reply, Mr.Soaham Joshi read the

relevant paragraphs, which are reproduced

hereunder to support the action of recovery:

"8.2 That, now the inadvertent mistake was committed by office of Principal, Government

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Polytechnic, Ahmedabad, of granting wrongful benefits of AGP of Rs.6,000/- and AGP of Rs.7,000/- with effect from 12.07.2007 and 12.07.2010 respectively in the pay-scale of 15600-39100 by order dated 18.01.2013. It is pertinent to note that AGP of 6000 and 7000 would be granted to employee as per Education Department GR dated 12.11.2014 where Screening Committee would recommend employee for the benefits of AGP 6000 and AGP 7000, if employee is eligible as per Government Resolution dated 12.11.2014. Petitioner had applied for the AGP of 6000 and AGP of 7000 to the office of this respondent. That office of respondent had passed order after recommendation of screening committee for the benefits of AGP 6000 and AGP 7000 w.e.f 30.04.2010 and 30.04.2013 respectively by letters dated 08.03.2018. A copy of the letters of dated 08.03.2018 are already annexed hereto and marked in as Annexure-R1 (Colly) to this affidavit in reply.

8.3 It is to be appreciated by this Hon'ble Court that the wrongful benefit which was granted to the petitioner and the said fact came to the notice of office of Principal, Government Polytechnic, Ahmedabad after the answering respondent had issued office orders of AGP and AGP 7000 and therefore, the situation leads to office of Principal, Government Polytechnic, Ahmadabad have to pass the impugned order dated 10.04.2018 for recovery of Rs.3,22,372/- (pg no 58 of petition) and order dated 15.04.2019 (pg no 112 of petition) for recovery of Rs.25,000/- per month (pg no 112 of petition) for the endorsement purpose to give benefits of AGP 6000 and AGP 7000.

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8.4 It is further respectfully submitted that office of respondent had issued show cause notice to Principal, Government Polytechnic, Ahmedabad for an inadvertent mistake committed by letter dated 28.06.2019. the answer of show cause notice was not accepted by office of respondent and second letter issued to Principal, Government Polytechnic, Ahmedabad asking for responsible employee who committed inadvertent mistake of granting wrongful AGP of Rs. 6000/- and AGP of Rs. 7000/- to the petitioner. It is further submitted that Principal, Government Polytechnic, Ahmedabad submitted names of officers responsible for the same by letter dated 04.09.2019. It is most respectfully submitted that office of respondent also recommended departmental inquiry against responsible officers for inadvertent mistake of granting wrongful AGP of Rs.6000/- and AGP of Rs. 7000/- to the petitioner by letter dated 24.12.2019. A copy of the letters of dated 28.06.2019, 4.9.2019 and 24.12.2019 are annexed hereto and marked as Annexure-R2 (Colly) to this affidavit in reply."

7. Considering the submissions made by the

learned counsel for the respective parties, the

issue of recovery and the legality of such an

order even if it is on the ground of mistake

should not retain the Court further in view of the

decision of the Supreme Court in case of State

C/SCA/8507/2019 JUDGMENT DATED: 26/07/2022

of Punjab and others v. Rafiq Masih (White

Washer) and others reported in (2015) 4 scc

334. As recently as in May 2022, the Supreme

Court in case of Thomas Daniel v. State of

Kerala and Ors. rendered in Civil Appeal

No.7115 of 2010, considering the law on the

question of recovery and referring to several

decisions as set out in the judgment has held as

under:

"(9) This Court in a catena of decisions has consistently held that if the 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/allowance or on the basis of a particular interpretation of rule/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 provide relief to the employees 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

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is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.

(10) In Sahib Ram v. State of Haryana and Others1 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 educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any 1 1995 Supp (1) SCC 18 misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which 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 would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."

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(11) In Col. B.J. Akkara (Retd.) v. Government of India and Others2 this Court considered an identical question as under:

"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana[1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India[(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652] ):

(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.

(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular 2 (2006) 11 SCC 709interpretation of rule/order, which is subsequently found to be erroneous.

28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government

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servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.

29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001.

Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to

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recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made."

(12) In Syed Abdul Qadir and Others v. State of Bihar and Others3 excess payment was sought to be recovered which was made to the appellants-teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general 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:

"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more

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than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was 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 beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."

(13) In State of Punjab and Others v. Rafiq Masih (White Washer) and Others4 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly 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 of hardship caused to an employee, if recovery is directed to reimburse the employer and 4 (2015) 4 SCC 334 disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:

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"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.

xxx xxx xxx

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).

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(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."

(14) Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired 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 an attempt to recover the said increments after passage of ten years of his retirement is unjustified.

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(16) In the result, the appeal succeeds and is accordingly allowed. The Judgment and order of the Division Bench dated 02.03.2009 and also of the learned Single Judge of the High Court dated 05.01.2006 impugned herein, and the order dated 26.06.2000 passed by the Public Redressal Complaint Cell of the Chief Minister of Kerala and the recovery Notice dated 09.10.1997 are hereby set aside. There shall be no order as to costs."

8. Accordingly, the order dated 10.04.2018 is

hereby quashed and set aside. The action of

recovery is held to be bad in light of the above

referred judgments.

9. Petition is accordingly allowed. Rule is made

absolute.

(BIREN VAISHNAV, J) ANKIT SHAH