Madras High Court
The Commissioner vs R.Sankarapandian on 1 July, 2021
W.A.(MD)Nos.640 to 645 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.07.2021
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)Nos.640 to 645 of 2021
and
CMP(MD).Nos.2841,2844,2846,2848, 2849 and 2850 of 2021
W.A.(MD)No.2841 of 2021
The Commissioner,
Paramakudi Municipality,
Paramakudi,
Ramanathapuram District. ... Appellant/Respondent
Vs.
R.Sankarapandian ... Respondent/Petitioner
Prayer in W.A(MD).No.2841 of 2021: Writ Appeal filed under Clause 15 of
Letters Patent, against the order of this Court made in W.P.(MD) Nos.26660 of
2019, dated 03.09.2020.
For Appellant : Mr.M.Kannan
(in all the W.As)
For Respondents : Mr.S.Visvalingam
(in all the W.As)
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COMMON JUDGMENT
[Judgment of the Court was delivered by T.S.SIVAGNANAM,J.]
Heard Mr.M.Kannan, learned counsel appearing for the appellant and
Mr.S.Visvalingam, learned counsel appearing for the respondents.
2. The appellant is the Commissioner of the Paramakudi Municipality
questioning the order passed in W.P(MD).No.26660 of 2019, dated 03.09.2020,
filed by the respondents challenging the order of recovery issued by the
appellant-Municipality and for a consequential direction to refund the amount
already recovered within a time frame.
3. The learned Writ Court allowed the writ petition primarily on the
ground that the excess payment made to the writ petitioners, who are Class-IV
employees on account of wrong fixation of their salary and benefits cannot be
recovered in the light of the decision of the Honourable Supreme Court in the
case of State of Punjab and others vs. Rafiq Masih (White Washer) and
others, (2015) 4 SCC 334. After giving relief from recovery to the writ
petitioners, certain other consequential directions also been issued. The question
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which falls for consideration in these appeals is whether the decision in the case
of Rafiq Masih (White Washer) (supra) can have an universal application to all
cases of recovery made by the various Departments of the Government after
having deducted that excess financial benefits which is not intended to be paid
to the employee has been paid.
4. Mr.Visvalingam, learned Counsel appearing for the respondents-
writ petitioners pointed out that the Government of Tamil Nadu has accepted the
decision in the case of Rafiq Masih (White Washer) and issued G.O.Ms.No.
286, dated 28.08.2018. Further it is pointed out that the appellant-Municipality
had contended that an undertaking has been given by the writ petitioners
agreeing for recovery and such undertaking will not be binding and cannot be
enforced and to support such preposition, reliance was placed on the decision of
the Honourable Division Bench in the case of Tamil Nadu Civil Supplies
Corporation and another v. R.Ganesha Rao, in W.A.No.207 of 2019, dated
24.01.2019.
5. Further it is pointed out that in the case of the Executive Engineer,
Public Works Department (Machinery Sub-Division) Chennai-5 and another
v. K.Karuppaiah, the Division Bench had applied the decision of Rafiq Masih
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W.A.(MD)Nos.640 to 645 of 2021
(White Washer) and dismissed the appeal filed by the Department by judgment
dated 12.03.2018 in W.A(MD).No.638 of 2012. Therefore, it is submitted that it
will be most inequitable to effect recovery from Class-IV employees, especially,
when the amount to be recovered is almost Rupees Two lakhs from each of the
writ petitioners.
6. Upon hearing the learned counsel appearing for the appellant and
going through the facts of the case before us, we find that the decision in Rafiq
Masih (White Washer) or in the case of Ganesha Rao or K.Karuppaiah cannot
be applied to the case of the writ petitioners. This is because of more than one
reason. Firstly, the nature of undertaking given by the writ petitioners is after
issuannce of show cause notice for recovery and at that stage, the respondents
having accepted the fact that unintended benefit was given to the writ
petitioners, who are working in a non-technical post agreed for revision of the
pay and benefits and sought for permission to effect recovery in convenient
installments. Therefore, the nature of undertaking which was referred to and
considered in the case of Rafiq Masih (White Washer) as well as in the case of
Ganesha Rao is entirely different. This is so because, the respondents-writ
petitioners rightly understood that the excess financial benefit which was
accorded to them, cannot be accorded to them under law. The decision in the
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W.A.(MD)Nos.640 to 645 of 2021
case of K.Karuppaiah also cannot be applied in the case on hand as it was the
case where the Writ Court found that the order of recovery was in violation of
principles of natural justice and the amount sought to be recovered was about
Rs.20,000/- and therefore, the Division Bench, to which one of us (TSSJ) was a
party, held that the peculiar facts and circumstances of the case does not warrant
interference of the order passed in the writ petition.
7. As rightly pointed out by the learned counsel appearing for the
appellant, the Honourable Supreme Court had clarified the effect of the decision
in Rafiq Masih (White Washer) in the case of High Court of Punjab and
Haryana and Others v. Jagdev Singh, 2016 (14) SCC 267. In the said case, the
writ petition filed by an employee was allowed by the High Court of Punjab and
Haryana, wherein, a challenge was made to the orders of the State Accountant
General for recovery of an excess payment to the salary. In the said case, the
record of proceedings shows that the employee opted for revised pay scale and
he furnished an undertaking to the effect that he will be liable to refund any
excess payment made to him. The Honourable Supreme Court held that the
undertaking is binding. Therefore, the decision in Ganesha Rao stands
impliedly overruled.
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8. Further, the Court took note of the decision in Rafiq Masih (White
Washer) and held that the principle enunciated in paragraph No.10 of the
judgment in Rafiq Masih (White Washer) cannot be applied to the situation,
such as the case dealt with by the Honourable Supreme Court and undertaking
will be binding on the employee. Therefore, the writ petitioners cannot rest the
case solely based on the decision in the case of Rafiq Masih (White Washer).
9. The following decisions would also support the stand taken by the
appellant-Municipality in effecting the orders of recovery.
(i) The Hon'ble Supreme Court in the case of Chandi Prasad
Uniyaland Others v. State of Uttarakhand & Ors., (2012) 8 SCC 417, in
paragraph No.14, has held as follows:
"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
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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. "
(ii) The Hon'ble Supreme Court in the case of Union Territory,
Chandigarh and others v. Gurcharan Singh and another, (2014) 13 SCC 595,
in paragraph No.13, has held as follows:
"13.Though a submission had been made on behalf of the
respondent that no amount should be recovered from the salary paid to
the respondent, the said submission can not be accepted because if any
amount had been paid due to mistake, the mistake must be rectified
and the amount so paid in pursuance of the mistake must be recovered.
It might also happen that the employer might have to pay some amount
to the respondent as a result of some mistake and in such an event,
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even the appellant might have to pay to the respondent. Be that as it
may, upon settlement of the account, whatever amount has to be paid
to the respondent employee or to the appellant employer shall be paid
and the account shall be adjusted accordingly."
(iii) A Division Bench of this Court in the case of The District
Treasury Officer, (District Treasury), Perambalur vs. D.Susairaj and another,
2017 SCC Online Mad 35571, in paragraph No.4, has held as follows:
"4.Our attention has been drawn to the decision in the White
Washer's case wherein it has been held that such a recovery is
impersmissible. But, the case on hand, in its facts and circumstances,
stand on a different footing for more than one reason. Firstly, when the
mistake in calculation of the pension was found out during the month of
August 2011 and recovery was started from October 2011 till June
2013 based on the consent given by the writ petitioner, the writ petition
has been filed in the year 2014. In the case relied upon by the writ
petitioner, he had moved the court in time, but, in the case on hand, the
writ petitioner has not moved this court in time and further, he had
submitted himself for recovery of the amount paid in excess in monthly
instalments as per the consent letter dated 28.11.2011 and
subsequently, the entire amount as claimed in the audit objection also
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seems to have been recovered but, only thereafter, he has filed the writ
petition for return of the recovered amount. Therefore, in the facts and
circumstances of the case, the judgment cited supra, relied upon by the
writ petitioner will not come to his rescue. In that view of the matter, we
uphold the contentions of the learned Additional Government Pleader. "
(iv) A Division Bench of this Court in the case of T.M.Madav Yadav
v. Principal Secretary to the Government, Government of Tamil Nadu, Fort
St.George, Chennai and another, (2018) 6 MLJ 7163, in paragraph Nos.23 to
25, has held as follows:
"23.It is to be pointed out that the ingredients of Sections
68 to 72 of the Indian Contract Act, 1872 speak of the principles of
'Unjust Enrichment', as per decision Nallaya Gounder V. Ramaswami
Gounder reported in (1958) 2 Mad LJ 86. The aspect of 'Unjust
Enrichment' is rested on the principle that the concerned individual
was enriched by reaping the benefits. Further, he should have been
enriched at another's expense. Besides these, it would be
unjust/unwise to permit him to retain the benefits.
24.One has to bear in mind the principle 'Nemo debet
locupletari ex aliena jactura', i.e., no man should grow rich out of
another person's loss. Further, a person who was unjustly enriched at
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the expense of another is required to make restitution to another [vide
American Restatement of the Law of Restitution, Quasi-Contracts and
Constructive Trusts, 1937, S I.]
25.In Law, 'Perpetration' of an error is no Legal Heroism'.
If an error comes to light or the same is unearthed or brought to the
fore, the same is to be rectified by the concerned authority. Viewed in
that perspective, the recovery of 'overpayment' is very much
necessitated and the same is in order. If recovery is not effected, it will
be an 'Unjust Enrichment' resulting in Loss to the 'Exchequer'. Hence,
the impugned proceedings of the 2nd Respondent/Office of the
Accountant General, Chennai dated 11.01.2016 is free from any Legal
flaw. Consequently, the Writ Petition fails."
(v) A Division Bench of this Court in the case of B.Usha v. Principal
Labour Judge and others, 2019 SCC Online Mad 16765, in paragraph No.26,
has held as follows:
"26. So also the above said provision is very clear that the
ascertainable Government dues includes ''Over payment of Pay and
Allowances''. Accordingly, the First Respondent is having the power
to recover the ''Over payment''. Further, the said excess payment was
recovered, only at the time of giving the Pension benefits to the
Petitioner. Hence, it cannot be said that the recovery order was made
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after a long gap of time. More than that, as indicated by the Third
Respondent, in the Service Register maintained by the officer of the
employer, pertaining to the Petitioner, it was clearly held that the
Petitioner gave an undertaking in respect to the recovery of over
payment. After, giving assurance for recovering the over payment,
now, the Petitioner filed the present Writ Petition and prayed for
allowing the same, in order to waive the over payment, which was
received nearly for the past 10 years. So also, the prayer sought for
by the Petitioner in this Writ Petition is not based on any sound legal
principle."
10. Reverting back to the facts of the cases on hand, the writ
petitioners are not only person but against whom orders of recovery had been
passed. There are as many as 13 persons and only six of them have filed writ
petitions, that too after a period of nearly one year after the recovery has
commenced. The total amount to be recovered from all the six of the writ
petitioners is stated to be about Rs.12.54 lakhs, of which, about Rs.7.82 lakhs
has already been recovered.
11. Considering the fact that the pay fixation was only in respect of
persons manning technical posts with ITI qualification and the benefit was
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granted by the Government which was implemented by the appellant-
Municipality, by virtue of which, the revised scale of pay was given notionally
with effect from 01.01.2006 with monetary effect from 01.08.2010 and
admittedly, the respondents-writ petitioners were not holding any technical
posts, they were Tank Watchman, Tank Cleaner, Park Watchman and Bus stand
Watchman etc., which are all admittedly non-technical posts and the
respondents-writ petitioners cannot be heard to say that despite not possessing
ITI qualification, they will be entitled to revised scale of pay. Therefore, even
though the recovery may cause financial difficulties to the respondents-writ
petitioners, taking note of the fact that more than fifty percent of the amount had
already been recovered from the respondents-writ petitioners, that too in
installments, as per the request made by the respondents-writ petitioners, we
find that the orders of recovery ought not to have been interfered by the learned
Writ Court.
12. The Municipality is operating the public funds and tax-payers
money. They discharging Constitutional obligation cast upon them and they are
bound to render services to all citizens without any discrimination. Therefore, to
state that the Municipality should absolve the loss can never be accepted. There
can be no universal application of the principle that every wrong payment
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though deducted later can never be recovered from the person who enjoyed the
unintended benefit, as rightly pointed out by the learned counsel appearing for
the appellant that it would set a very bad precedent. Apart from that the
Municipality can never recover the amount and it will be always shown as
outstanding and this will have other cascading effect which would not be in
public interest.
13. Thus, for all the above reasons, we are of the clear view that the
learned Writ Court committed an error in interfering with the order of recovery.
14. In the result, these Writ Appeals are allowed and the writ
petitions are dismissed and the order impugned in the writ petition is held to be
valid. No costs. Consequently, connected miscellaneous petitions are closed.
Index :Yes/No (T.S.S.,J.) (S.A.I.,J.)
Internet :Yes/No 01.07.2021
pkn
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall
be the responsibility of the advocate/litigant concerned.
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W.A.(MD)Nos.640 to 645 of 2021
T.S.SIVAGNANAM, J.
and
S.ANANTHI, J.
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W.A.(MD)Nos.640 to 645 of 2018
01.07.2021
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W.A.(MD)Nos.640 to 645 of 2021
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