Manipur High Court
The Principal Accountant General ... vs Smt. Kangabam Tomba Devi on 16 December, 2022
Item Nos. 47 to 50
KABORA Digitally signed IN THE HIGH COURT OF MANIPUR
by
MBAM KABORAMBAM
SANDEEP SANDEEP SINGH AT IMPHAL
Date: 2022.12.20
SINGH 15:58:24 +05'30'
W.A. No. 121 of 2022
with
MC(WA) No.201 of 2022
The Principal Accountant General (A & E), Manipur,
Babupara, P.O. & P.S. Imphal, Imphal West District, Manipur.
...Appellant
-versus-
1. Smt. Kangabam Tomba Devi, aged about 70 years, W/o (L) Thounaojam
Suren Singh, resident of Khagempalli Huidrom Leikai, P.O. Imphal,
P.S. Singjamei, Imphal West District, Manipur.
2. The State of Manipur, represented by the Principal Secretary/Commissioner,
Education (S), Government of Manipur, Manipur Secretariat,
P.O. & P.S. Imphal, Imphal West District, Manipur - 795001.
3. The Director, Education (S), Government of Manipur, Manipur Secretariat,
P.O. & P.S. Imphal, Imphal West District, Manipur - 795001.
4. The Treasury Officer, Imphal East District, Manipur, Porompat,
P.O. & P.S. Porompat, Imphal East District, Manipur - 795005.
.... Respondents
and
W.A. No. 126 of 2022
with
MC(WA) No.206 of 2022
1. The State of Manipur, represented by the Principal Secretary/Commissioner,
Education (S), Government of Manipur, Manipur Secretariat,
P.O. & P.S. Imphal, Imphal West District, Manipur - 795001.
2. The Director, Education (S), Government of Manipur, at Lamphelpat,
P.O. & P.S. Lamphel, Imphal West District, Manipur - 795001.
...Appellant
-versus-
1. Smt. Kangabam Tomba Devi, aged about 70 years, W/o (L) Thounaojam Suren Singh,
resident of Khagempalli Huidrom Leikai, P.O. Imphal, P.S. Singjamei, Imphal West
District, Manipur.
2. The Principal Accountant General (A & E), Manipur,
Babupara, P.O. & P.S. Imphal, Imphal West District, Manipur-795001.
3. The Treasury Officer, Imphal East District, Manipur, Porompat,
P.O. & P.S. Porompat, Imphal East District, Manipur - 795005.
... Respondents
WA No.121 of 2022 with WA No.126 of 2022 Page 1
MC(WA) No.201 of 2022 with MC(WA) No.206 of 20212
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
HON'BLE MR. JUSTICE A.BIMOL SINGH
For the appellant in WA No.121/2022 :: Mr. Samarjit S., Sr. PCCG
For the appellants in WA No.126/2022 :: Ms. Ch.Sundari Devi, Govt. Advocate
For respondent No.1 in both appeals :: Mr. Ch. Robinchandra, Advocate
Date of Judgment & Order :: 16.12.2022
COMMON JUDGMENT AND ORDER (ORAL)
Sanjay Kumar (C.J.):
[1] Judgment and Order dated 13.07.2022 passed by a learned Judge of
this Court in W.P(C) No.574 of 2021 is subjected to challenge in these two appeals.
Writ Appeal No.121 of 2022 was filed by the Principal Accountant General (A & E),
Manipur, respondent No.1 in the said writ petition; while Writ Appeal No.126 of 2022
was filed by the State of Manipur and the Director, Education (S), Government of
Manipur, respondents No. 2 and 3 in the said writ petition. By the judgment and order
under appeal, the learned Judge allowed the writ petition and directed the authorities
to refund the deducted Gratuity and Dearness Relief, amounting to ₹3,11,847/-, to
the writ petitioner within a time frame. This relief was granted on the ground that the
deductions made from her Gratuity and Dearness Relief accounts were illegal and
unsustainable in law.
[2] Heard Mr. Samarjit S., learned Sr. PCCG, appearing for the appellant
in WA No.121 of 2022; Ms. Ch.Sundari Devi, learned Government Advocate,
appearing for the appellants in WA No.126 of 2022; and Mr. Ch.Robinchandra Singh,
learned counsel for respondent No.1 in both the writ appeals, the writ petitioner.
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[3] Smt. Kangabam Tomba Devi, respondent No.1 herein, was appointed
as a Primary/Matriculate Teacher, vide order dated 15.06.1983 of the Director of
Education (S), Government of Manipur. Therein, her salary was fixed in the scale of
pay of ₹470-15-575-EB-20-735-25-860/- per month, plus DA and other allowances
admissible under the rules, with effect from 01.07.1983. Upon acquiring a higher
qualification, her salary was increased by the Director of Education (S), Government
of Manipur, vide order dated 05.03.1992. Thereby, she was placed in the scale of
pay of ₹575-1050/-(pre-revised) with retrospective effect from 01.07.1983. Again, by
order dated 08.11.2002, the Director of Education (S), Government of Manipur,
enhanced her scale of pay, pursuant to Government Notification dated 07.09.1999,
and she was extended the Trained Graduate/Trained Primary Teacher scale of pay
with effect from 07.09.1999. Her scale of pay at this stage was fixed as ₹4500-7000/-.
She was then given the enhanced Trained Senior scale upon completion of 12 years
of regular service in the grade, vide order dated 17.11.2003 of the Director of
Education (S), Government of Manipur. Her scale of pay was fixed as
₹5000-8000/- with effect from 29.10.1999. The scale of pay of ₹5000-8000/- was
revised to ₹9300-34,800/- plus grade pay of ₹4200/- with effect from 01.01.2006,
vide Notification dated 05.05.2010 of the Government of Manipur and her pay was
fixed at ₹11,540/- plus ₹4200/- GP per month with effect from 01.01.2006.
[4] It may be noted that at the time the writ petitioner entered service, she
was still an undergraduate being in B.A. 1st year. Thereafter, she acquired higher
educational qualification and was granted higher scale of pay basing on her
qualification. She attained the age of superannuation and retired from service with
effect from 30.06.2010. Order dated 23.09.2010 was issued by the Director of
Education (S), Government of Manipur, in recognition of this fact. The office of the
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Senior Deputy Accountant General (A & E), Manipur, issued a Pension Payment
Order stating that she would be entitled to receive ₹6600/- per month as pension
with effect from 01.07.2010. Therein, under the caption 'Special Remarks of
Accounts Officer', it was noted that her Gratuity amount stood at ₹2,40,570/- but
recovery of overpayment of pay and allowances to the tune of ₹3,11,847/- had to be
effected, leaving a negative balance of ₹71,277/- which was to be recovered from
the Dearness Relief admissible to her from time to time. The Dearness Allowance
payable to her was quantified at ₹1,37,520/- and after deduction of the balance dues
of ₹71,277/-, she was held entitled to ₹66,243/- only.
[5] While the aforestated events took place after the retirement of the writ
petitioner in the year 2010, it appears that a committee was constituted by the
Government of Manipur to examine the proposal for regularization of grant of higher
scale of pay to different categories of teachers owing to their acquiring qualifications
prescribed for appointment to higher posts. On 20.08.2016, the State Cabinet
decided to cancel the grant of scale of higher posts, viz., the so-called qualification
scale, to teachers. Pursuant thereto, the Administrative Department is stated to have
issued order dated 06.09.2016 cancelling the grant of scale of higher posts
(qualification scale) to 1786 teachers. However, the All Manipur Elementary School
Teachers Association filed W.P(C) No.1009 of 2016 assailing the said order dated
06.09.2016. Thereupon, the State Cabinet decided to review its earlier decision with
regard to cancellation of the grant of qualification scale. By its decision dated
28.04.2017, the State Cabinet decided to withdraw its earlier decision dated
20.08.2016. In consequence, the Principal Secretary, Education (S), Government of
Manipur, issued order dated 24.06.2017 stating that the earlier order dated
06.09.2016, cancelling the grant of scale of higher posts (qualification scale), stood
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withdrawn/cancelled. It is only upon the issuance of this order that the writ petitioner
submitted representation dated 11.10.2019 to the State authorities requesting for
refund of the sum of ₹3,11,842/- deducted from her retirement benefits. As the same
failed to evoke a response, she filed the subject writ petition.
[6] The State authorities filed an affidavit-in-opposition in the writ petition
opposing the prayer of the writ petitioner. They admitted that the writ petitioner was
allowed to enjoy the so-called qualification scale with effect from 01.07.1983, vide
order dated 05.03.1992. According to them, this benefit was extended to her without
the concurrence of the Finance Department. Further, they asserted that amended
Rule 70-A of the MCS (Pension) Rules, 1977, permitted recovery/adjustment of any
error or irregularity in an account irrespective of the date of detection thereof. They
pointed out that the writ petitioner had submitted letter dated 28.07.2011 to the office
of the Accountant General (A & E), Manipur, consenting to deduction of the
overpayment of salary to her. It is on this basis that they justified the deductions
made from the retirement benefits of the writ petitioner.
[7] A separate affidavit-in-opposition was filed in the writ petition by the
Senior Deputy Accountant General (A & E), Manipur. Therein, he stated that his
office merely implements the decisions taken by the State authorities on issues
relating to maintenance of GPF, pension and entitlements. He further stated that
examination of pension papers and service records is the bounden duty of his office
and in the course of that exercise, it was found that the writ petitioner was initially
appointed as a Matriculate Teacher in the scale of ₹470-860/- with effect from
01.07.1983, vide order dated 15.06.1983, but she was allowed to enjoy the higher
pay scale of ₹575-1050/- retrospectively with effect from 01.07.1983, consequent
upon her acquiring higher qualification without the concurrence of the Finance
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Department or recommendation of a duly constituted Departmental Promotion
Committee. The Joint Secretary (Pension Cell), Government of Manipur, was
therefore requested to furnish a clarification on this issue, vide letter dated
23.07.2011. In the meanwhile, the writ petitioner consented to deduction of the
overpayment of pay and allowances, vide letter dated 28.07.2011. Thereupon, his
office worked out the overpayment made and quantified it as ₹3,11,847/-. This
amount was accordingly deducted from the retirement benefits of the writ petitioner.
Reference was made to Rule 73 of the Manipur Civil Service (Pension) Rule, 1977,
which states to the effect that the Government dues, as ascertained and assessed
by the Head of Office, which remain outstanding till the date of retirement of the
Government servant, shall be adjusted against the amount of the retirement gratuity
becoming payable. He, therefore, justified the impugned deduction made from the
retirement benefits of the writ petitioner.
[8] In her rejoinder affidavit filed in response to the affidavit-in-opposition
of respondent No.1, the writ petitioner pointed out that the grant of qualification scale,
trained scale and senior scale to her were made prior to the year 2005 and, therefore,
the proceedings referred to by respondent No.1, which were subsequent thereto,
would not have application. She further stated that she retired from service with
effect from 30.06.2010 and recoveries should not be effected, when excess payment
had been made for a period in excess of five years as per the law laid down by the
Supreme Court. She accordingly prayed for relief.
[9] Upon consideration of the pleadings and the material on record, the
learned Judge was of the opinion that the proceedings of the year 2016 would have
no impact upon the writ petitioner as she had retired from service in the year 2010
itself. The learned Judge also took note of the fact that the writ petitioner was not
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even put on notice or afforded an opportunity of hearing before effecting the
impugned deductions from her retirement benefits. Referring to case law on the point,
the learned Judge opined that as the writ petitioner had not played any role in the
payment of the qualification scale, she could not be victimized therefor. The learned
Judge noted that, had the writ petitioner not agreed to the deductions, she would
have been denied her retirement benefits and, as a matter of course, she would
have been compelled to submit such consent. The learned Judge was, therefore,
not inclined to attach any value to the consent procured from the writ petitioner. The
learned Judge also took note of the fact that the decision of the Government,
embodied in the earlier order dated 06.09.2016, with regard to cancellation of the
grant of the qualification scale to teachers, was withdrawn/cancelled under the later
order dated 24.06.2017 of the Government of Manipur. Therefore, the very principle
on the basis on which deductions had been effected from the retirement benefits of
the writ petitioner stood nullified, by virtue of this subsequent action. It was in these
circumstances that the learned Judge granted relief to the writ petitioner.
[10] At first blush, it may seem that the writ petitioner was liable to be
non-suited on the ground of delay and laches. However, it is significant to note that
the respondent authorities in the writ petition, viz., the appellants in these two
appeals, did not even raise the ground of limitation against her in their affidavits-in-
opposition. This was clearly because their very action in effecting deductions from
the retirement benefits of the writ petitioner was itself belated, being in respect of
payments made to her long ago. Ordinarily, when financial benefit is extended to an
employee under an order, the said order would itself specify that if it was found
thereafter that any excess payment was made, it would be liable to be recovered.
However, the orders under which the writ petitioner was granted qualification scale
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and enhancements thereof did not even mention this rider. The State authorities
conceded in their affidavit-in-opposition that extension of the qualification scale to
the writ petitioner related back to the order dated 05.03.1992, when she was given
such scale with retrospective effect from 01.07.1983. In effect, it was the authorities
who were digging up long past events and seeking to reopen them.
[11] At that point of time, there was not even a decision taken with regard
to cancellation of the grant of the qualification scale to teachers. It may be noted that
such grant, under the orders placed before this Court, was not limited to the writ
petitioner alone. However, there is no mention of any similar deductions being made
from the retirement benefits of the other teachers who find mention in the order dated
05.03.1992, whereby the writ petitioner was granted the qualification scale with
effect from 01.07.1983. Therefore, it appears that it was only the writ petitioner who
was picked upon for this special treatment for some reason.
[12] It is well settled that pension is not a bounty, being the hard-earned
dues of an employee who has put in long and dedicated service till the age of
retirement. [See D.S.Nakara and others Vs. Union of India, {(1983) 1 SCC 305}].
The same principle would hold good for other retirement benefits also. It is no doubt
true that the writ petitioner gave her consent, under letter dated 28.07.2011,
specifically agreeing to deduction of the overpayment in her pay and allowance on
account of placement in the higher scale of pay with retrospective effect from
01.07.1983. However, merely because this consent was given by her did not absolve
the authorities from basing such deductions on legally valid and tenable grounds.
As already noted supra, only the writ petitioner seems to have been picked upon for
this special treatment as there is no evidence forthcoming of any other teachers who
were granted similar benefit, vide the order dated 05.03.1992, being subjected to
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similar treatment. Further, as observed by the learned Judge in the judgment and
order under appeal, an employee on the verge of retirement would not be in a
position to bargain and would be inclined to give consent so that his or her retirement
benefits are processed expeditiously. Therefore, the mere fact that the writ petitioner
gave her consent is not sufficient, in itself, to hold against her and give the authorities
a clean chit for their illegal and wholly unsustainable action in the year 2011. The
said action had no legal foundation as no decision was taken by the State
Government till the year 2016 with regard to cancellation of the grant of qualification
scale to teachers. Significantly, that decision itself came to be cancelled/withdrawn
in the year 2017. Thus, as matters stand, it is not even the case of the State
authorities that there is any extant policy to the effect that grant of qualification scale
should be cancelled in so far as teachers are concerned.
[13] That apart, as noted by the learned Judge, the authorities did not even
deem it necessary to put the writ petitioner on notice before quantifying the
overpayments allegedly made to her. The entire exercise was undertaken by the
office of the Accountant General (A & E), Manipur, behind her back and to her
detriment. There was, thus, clear violation of the principles of natural justice. Rules
70A and 73 of the MCS (Pension) Rules, 1977, would come into play upon lawful
bilateral determination of the amounts sought to be recovered and not upon a
unilateral quantification thereof.
[14] Thus, on both counts, the action of the authorities in effecting
deductions to the tune of ₹3,11,847/- from the retirement benefits of the writ
petitioner was not only illegal but clearly void in its very inception. Once that is so,
the question of non-suiting the writ petitioner on the ground that there was delay on
her part in assailing the said void action of the authorities does not arise. Illegal and
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void action, unlike fine wine, does not mature over a period of time to attain a higher
status. It remains just as illegal and void as it was earlier. Limitation law or other
technicalities cannot be pressed into service to safeguard it.
[15] Reference may also be made to the judgment of the Supreme Court
in State of Punjab and others Vs. Rafiq Masih (White Washer) and others {(2015)
4 SCC 334}. This case dealt with recoveries of amounts paid in excess from retired
employees. It was observed therein that orders passed by the State, as an employer,
seeking to recover 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 and 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 Supreme Court therefore held that the right to recover
being pursued by the State, as an employer, would have to be compared with the
effect of the recovery on the employee concerned and if the effect of such recovery
from the employee 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 such recovery. Per the Supreme
Court, in such a situation, the employee's right would outbalance and, therefore,
eclipse the right of the State, as employer, to recover. Keeping these principles in
mind, the Supreme Court noted that it would not be 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
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entitlement. However, based on the decisions referred to by it, the Supreme Court
summarized a few situations wherein recovery by the employer would not be
permissible in law. One such situation is where recovery from the employee is
sought to be made of excess payments made for a period in excess of five years
before the order of recovery is issued. Therefore, even if it is accepted that there
was excess payment made to the writ petitioner, this edict of the Supreme Court
would be clearly applicable, as it is the admitted position that the recovery sought to
be made is in relation to payment of qualification scale to the writ petitioner from the
year 1983 and enhancements thereof. It may also be noted that this edict merely
reiterated the law laid down in Shyam Babu Verma Vs. Union of India {(1994) 2
SCC 521}, which held to the effect that recovery sought to be made after eleven
years would be unsustainable in law. This was the position of law holding the field
at the time the deductions were effected from the retirement benefits of the writ
petitioner. Viewed thus, it is not open to the State of Manipur to profess to be a
welfare State, on the one hand, and seek to justify the wholly illegal and void
deductions made from the retirement benefits of the writ petitioner. We are, therefore,
not inclined to interfere with the judgment and order dated 13.07.2022 passed in
W.P(C) No.574 of 2021.
[16] The writ appeals are devoid of merit and are accordingly dismissed.
In consequence, MC (WA) No.201 of 2022 and MC (WA) No.206 of
2022, filed for interim relief, shall also stand dismissed.
No order as to costs.
JUDGE CHIEF JUSTICE
FR/NFR
Opendro
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