Manipur High Court
Shri K. Yangla vs The State Of Manipur Through The Chief ... on 24 April, 2024
[1]
SHOUGRAK Digitally signed by
SHOUGRAKPAM
PAM DEVANANDA
IN THE HIGH COURT OF MANIPUR
DEVANAN SINGH
Date: 2024.04.24
DA SINGH 13:34:51 +05'30' AT IMPHAL
WP(C) No. 112 of 2019
Shri K. Yangla, aged about 62 years, S/o (L) K. Vakham,
resident of Halang Village, P.O., P.S. & District, Ukhrul, Manipur
- 795142.
... Petitioner
-Versus-
1. The State of Manipur through the Chief Secretary-cum-
Secretary (Home), Government of Manipur, Old Secretariat
Building, P.O. & P.S. Imphal, District, Imphal West, Manipur-
795001.
2. The Director General of Police, Government of Manipur,
Babupara, P.O. & P.S. Imphal, Imphal West District, Manipur-
795001.
3. The Superintendent of Police, Ukhrul District, Govt. of Manipur,
P.O. & P.S. & District, Ukhrul, Manipur - 795142.
4. The Under Secretary (Pension Cell), Govt. of Manipur, New
Secretariat Building, P.O. & P.S. Imphal, District, Imphal West,
Manipur - 795001.
5. The Accountant General (A&E), Imphal, Babupara, P.O. & P.S.
Imphal, Imphal West District, Manipur-795001.
... Respondents
B E F O R E
HON'BLEMR. JUSTICE AHANTHEMBIMOL SINGH
For the petitioner :: Mr. Kh. Tarunkumar, senior Advocate
asstd. by Mr. Jemon, Advocate
For the respondents :: Mr. Niranjan Sanasam, GA &
Mr. S. Suresh, Advocate
Date of hearing :: 29-01-2024
Date of judgment & order :: 24-04-2024
WP(C) No. 112 of 2019 Contd.../-
JUDGMENT & ORDER
[1] Heard Mr. Kh. Tarunkumar, learned senior counsel assisted by
Mr. Jemon, learned counsel appearing for the petitioner, Mr. Niranjan
Sanasam, learned GA appearing for the respondents No. 1 to 4 and
Mr. S. Suresh, learned counsel appearing for the respondent No. 5
In the present writ petition, the petitioner is challenging the
gratuity payment order dated 22-11-2017 issued by the Office of the
Accountant General (A&E), Manipur ordering for recovering of a sum of
Rs. 7,21,073.00/- from the gratuity payable to the petitioner allegedly on
account of over-payment of pay and allowances to the petitioner and also
praying for issuing direction to the respondents to refund the deducted
amount of Rs. 1,89,889.00/- to the petitioner within a stipulated period.
[2] The facts of the present case, in a nutshell, are that while the
petitioner was serving as an Assistant Sub-Inspector of Police in the
Manipur Police Department, a Departmental Enquiry was held against him
and on the basis of the enquiry report, the S.P., Ukhrul, issued an order
dated 07-01-2010 imposing upon the petitioner a major punishment of
withholding his increment with cumulative effect for a period of three years
from the date of suspension of the petitioner from service. Subsequently,
the petitioner retired from service as a Sub-Inspector of Police w.e.f.
29-02-2016 on attaining the age of superannuation. After the retirement of
the petitioner, the Office of the Accountant General (A&E), Manipur, issued
a gratuity payment order dated 22-11-2017 for payment of a sum of
Rs. 1,86,539/- as retirement gratuity. In the said order, it was also
mentioned that a sum of Rs. 7,21,073/- on account of over-payment of pay
WP(C) No. 112 of 2019 Contd.../-
and allowances may be recovered. The said order also indicated that a sum
of Rs. 1,89,889/- have also been deducted from the total gratuity payable
to the petitioner.
[3] The Office of the Principal Accountant General (A&E), Manipur,
respondent No. 5 herein, gave the following two reasons for issuing the
impugned gratuity payment order and for deducting the amount of
Rs. 1,89,889/- from the total gratuity amount payable to the petitioner:-
(i) On receipt of the pension proposal of the petitioner, the Office of
the Principal Accountant General scrutinized the service record
of the petitioner and found irregularities in fixation of his pay in
that on promotion to the post of ASI, the petitioner's pay scale
was fixed at Rs. 4,500/- on 21-08-2005 instead of fixing at
Rs. 4,400/- As a result, consequent upon revision of pay under
the Revision of Pay Rules, 2010, the petitioner's pay was fixed at
Rs. 8,370 + 2,400/- on 01-01-2006 instead of Rs. 8,190 + 2400/-
as can be seen from the document marked as Annexure - X/1
annexed to the counter affidavit of respondent No. 5. The above
has resulted in over-payment to the petitioner more than his
entitlement; and
(ii) By an order dated 07-01-2010 issued by the S.P., Ukhrul in
connection with the Departmental Enquiry held against the
petitioner, the petitioner was imposed a major penalty of
withholding his increment with cumulative effect for a period of
three years from the date of his suspension from service,
however, in contravention of the said order issued by the
WP(C) No. 112 of 2019 Contd.../-
disciplinary authority, the Department released the petitioner's
full pay and allowances without withholding the increment for a
period of three years with cumulative effect. This has also
resulted in over-payment of pay and allowances to the petitioner.
[4] Mr. Kh. Tarunkumar, learned senior counsel appearing for the
petitioner submitted that the petitioner is entitled to enjoy the full gratuity
amount due payable to him as he never committed any misrepresentation
or fraud and that if there was any fault on the part of the petitioner regarding
drawing of his monthly pay and allowances, the concerned authorities
should have informed him in time to rectify such mistake and that if the
petitioner had drawn some excess amount due to the miscalculation by the
authorities without any fault on his part, the authorities are not permitted to
recover the excess withdrawn amount from his retirement gratuity amount
and that the concerned authorities should not be permitted to take
advantage of their own mistakes.
[5] The learned senior counsel further submitted that as the
impugned order for recovery of the alleged excess payment of pay and
allowances had been issued after the petitioner retired from service, no
such recovery can be made in view of the settled principle of law laid down
by this court as well as by the Hon'ble Apex Court in a catena of decisions.
It has also been submitted by the learned senior counsel that the issues
raised in the present writ petition are squarely covered by the following
judgements:-
1. (1994) 2 SCC 521 "Shyam Babu Verma & ors. Vs. Union of
India & ors." wherein it has been held as under: -
WP(C) No. 112 of 2019 Contd.../-
"11. Although we have held that the petitioners were entitled
only to the pay scale of Rs 330-480 in terms of the
recommendations of the Third Pay Commission w.e.f. January 1,
1973 and only after the period of 10 years, they became entitled
to the pay scale of Rs 330-560 but as they have received the scale
of Rs 330-560 since 1973 due to no fault of theirs and that scale
is being reduced in the year 1984 with effect from January 1,
1973, it shall only be just and proper not to recover any excess
amount which has already been paid to them. Accordingly, we
direct that no steps should be taken to recover or to adjust any
excess amount paid to the petitioners due to the fault of the
respondents, the petitioners being in no way responsible for the
same."
2. (2009) 3 SCC 475 "Syed Abdul Qadir & ors. Vs. State of
Bihar & ors." wherein it has been held as under: -
"57. This Court, in a catena of decisions, has granted relief against
recovery of excess payment of emoluments/allowances if (a)
the excess amount was not paid on account of any
misrepresentation or fraud on the part of the employee, and (b)
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."
"58. The relief against recovery is granted by courts not because of
any right in the employees, but in equity, exercising judicial
discretion to relieve the employees from the hardship that will
be caused if recovery is ordered. But, if in a given case, it is
proved that the employee had knowledge that the payment
received was in excess of what was due or wrongly paid, or in
cases where the error is detected or corrected within a short
time of wrong payment, the matter being in the realm of judicial
discretion, courts may, on the facts and circumstances of any
particular case, order for recovery of the amount paid in
excess. See Sahib Ram v. State of Haryana, Shyam Babu Verma
v. Union of India. Union of India v. M. Bhaskar, V. Gangaram v.
Director, Col. B.J. Akkara (Retd.) v. Govt. of India, Purshottam
Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh
and Bihar SEB v. Bijay Bhadur."
"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 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
WP(C) No. 112 of 2019 Contd.../-
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."
3. (2015) 4 SCC 334 "State of Punjab & ors. Vs. Rafiq Masih
(White Washer) & ors." wherein it has been held as under: -
"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 b 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."
4. 2022 SCC OnLine SC 536 "Thomas Daniel Vs. State of Kerala
& ors." wherein it has been 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
WP(C) No. 112 of 2019 Contd.../-
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 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 Others 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
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."
"(11) In Col. B.J. Akkara (Retd.) v. Government of India and Others 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
WP(C) No. 112 of 2019 Contd.../-
interpretation 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 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 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 Others
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
WP(C) No. 112 of 2019 Contd.../-
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 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 Others 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 disallowed the same, exempting
the beneficiary employees from such recovery. It was held
thus:
"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
WP(C) No. 112 of 2019 Contd.../-
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."
"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."
"(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."
[6] Mr. S. Suresh, learned counsel appearing for the respondent
No. 5 submitted that on receipt of the pension proposal of the petitioner, the
WP(C) No. 112 of 2019 Contd.../-
Office of the Principal Accountant General (A&E), Manipur scrutinized the
service record of the petitioner and found some irregularities in fixation of
his pay. According to the learned counsel, on promotion to the post of ASI,
the petitioner's pay was fixed at Rs. 4,500/- on 21-08-2005 instead of
Rs. 4,400/- and that as a result, consequent upon revision of pay under
ROP, 2010, the petitioner's pay was fixed at Rs. 8,370 + 2,400/- on
01-01-2006 instead of fixing at Rs. 8,190 + 2,400/- thereby resulting in
over-payment to the petitioner more than his entitlement. It has also been
submitted by the learned counsel for the respondent No. 5 that by an order
dated 07-01-2010 issued by the S.P., Ukhrul in connection with a
Departmental Enquiry held against the petitioner, a major punishment of
withholding increment with cumulative effect for a period of three years from
the date of suspension was imposed upon the petitioner, however, in
contravention of the said order, the Department released the petitioner's full
pay and allowances without withholding increment for a period of three
years with cumulative effect. According to the learned counsel, this has also
resulted in over-payment of pay and allowances to the petitioner.
[7] It has also been submitted by Mr. S. Suresh, learned counsel that
to make recovery of Government dues as per existing rules is the bounded
duty of the respondent No. 5 and that the amount of Rs. 1,89,889/- was
deducted from the retirement gratuity of the petitioner as over-payment of
pay and allowances arising due to irregular fixation of pay with the consent
of the petitioner. In this regard, the learned counsel draw the attention of
this court to the following Consent Certificate and Undertaking given by
the petitioner, which are enclosed as Annexure-X/8 to the affidavit-in-
WP(C) No. 112 of 2019 Contd.../-
opposition of the respondent No. 5 and Annexure-X/15 to the
supplementary affidavit of the respondent No. 5, which reads as under:-
"CONSENT CERTIFICATE
Shri/ Smt. K. Yangla Ex. S.I. is hereby given Consent
Certificate for recovery over payment, if any from my final
pension/ Gratuity.
K. Yangla
Signature of the pensioner."
"ANNEXURE - III
UNDERTAKING
I hereby undertake that any excess payment that may be
found to have been made as a result of incorrect fixation of pay
or any excess payment detected in the light of discrepancies
notices subsequently will be refunded by me to the Government
either by adjustment against future payments due to me or
otherwise.
Sd/-
Name: K. Yangla
Designation: ASI"
[8] According to the learned counsel, the Consent Certificate was
given by the petitioner after his retirement and in connection with the
settlement of his pension and other retiral benefits and that the Undertaking
was given by the petitioner as mandated by the Manipur Services (Revised
Pay) Rules, 2010 and at the time of implementation of the said rules.
[9] The learned counsel further submitted that the orders dated
27-07-2018 passed by this court in WP(C) No. 258 of 2018 and WP(C) No.
259 of 2018 and order dated 25-07-2019 passed by this court in WP(C) No.
690 of 2010 squarely covers the issue raised in the present writ petition and
that such orders passed by a co-ordinate bench is binding to this court.
WP(C) No. 112 of 2019 Contd.../-
[10] Mr. S. Suresh, learned counsel further submitted that in the
present petition, the petitioner did not disclosed the existence of the
Consent Certificate and Undertaking given by him and approached this
court by concealing such material evidences to obtain favourable orders
and on this count alone, the present petition is liable to be dismissed. In
support of his contention, the learned counsel cited the judgment of the
Hon'ble Apex Court in the case of "K.D. Sharma Vs. Steel Authority of
India" reported in (2008) 12 SCC 481 wherein it has been held as under:-
"34. The jurisdiction of the Supreme Court under Article 32 and of the
High Court under Article 226 of the Constitution is extraordinary,
equitable and discretionary. Prerogative writs mentioned therein
are issued for doing substantial justice. It is, therefore, of utmost
necessity that the petitioner approaching the writ court must
come with clean hands, put forward all the facts before the court
without concealing or suppressing anything and seek an
appropriate relief. If there is no candid disclosure of relevant and
material facts or the petitioner is guilty of misleading the court,
his petition may be dismissed at the threshold without
considering the merits of the claim."
"36. A prerogative remedy is not a matter of course. While exercising
extraordinary power a writ court would certainly bear in mind the
conduct of the party who invokes the jurisdiction of the court. If
the applicant makes a false statement or suppresses material fact
or attempts to mislead the court, the court may dismiss the action
on that ground alone and may refuse to enter into the merits of
the case by stating, "We will not listen to your application because
of what you have done." The rule has been evolved in the larger
public interest to deter unscrupulous litigants from abusing the
process of court by deceiving it."
"38. The above principles have been accepted in our legal system also.
As per settled law, the party who invokes the extraordinary
jurisdiction of this Court under Article 32 or of a High Court under
Article 226 of the Constitution is supposed to be truthful, frank
and open. He must disclose all material facts without any
reservation even if they are against him. He cannot be allowed to
play "hide and seek" or to "pick and choose" the facts he likes to
disclose and to suppress (keep back) or not to disclose (conceal)
other facts. The very basis of the writ jurisdiction rests in
disclosure of true and complete (correct) facts. If material facts
are suppressed or distorted, the very functioning of writ courts
and exercise would become impossible. The petitioner must
disclose all the facts having a bearing on the relief sought without
WP(C) No. 112 of 2019 Contd.../-
any qualification. This is because "the court knows law but not
facts".
"39. If the primary object as highlighted in Kensington Income Tax
Commrs. is kept in mind, an applicant who does not come with
candid facts and "clean breast" cannot hold a writ of the court with
"soiled hands". Suppression or concealment of material facts is
not an advocacy. It is a jugglery, manipulation, manoeuvring or
misrepresentation, which has no place in equitable and
prerogative jurisdiction. If the applicant does not disclose all the
material facts fairly and truly but states them in a distorted manner
and misleads the court, the court has inherent power in order to
protect itself and to prevent an abuse of its process to discharge
the rule nisi and refuse to proceed further with the examination of
the case on merits. If the court does not reject the petition on that
ground, the court would be failing in its duty. In fact, such an
applicant requires to be dealt with for contempt of court for
abusing the process of the court."
[11] Mr. Niranjan Sanasam, learned GA appearing for the
respondents No. 1 to 4 endorsed the submission made by the learned
counsel appearing for the respondent No. 5.
[12] I have heard the submissions advanced by the counsel
appearing for the parties at length and also carefully examined all the
materials available on record. In my considered view, the only issue which
needs to be decided in the present writ petition is whether recovery of the
alleged excess payment of pay and allowances from the retiral benefits due
payable to the petitioner is permissible in law or not.
[13] The contention of the respondents is that on promotion of the
petitioner to the post of ASI, his pay was fixed at Rs. 4,500/- on 21-08-2005
instead of Rs. 4,400/- there being a difference of Rs. 100/- in the fixation of
his pay. As a result, consequent upon revision of pay under the Revision of
Pay Rules, 2010, the petitioner's pay was fixed at Rs. 8,370 + 2,400/- on
01-01-2006 instead of Rs. 8,190 + 2400/- thereby leading to over-payment
to the petitioner more than his entitlement.
WP(C) No. 112 of 2019 Contd.../-
[14] On careful examination of the record of the case, this court did
not find any material to substantiate the contention of the respondents
that the petitioner's pay to the post of ASI was fixed at Rs. 4,500/- on
21-08-2005. Even assuming that the petitioner's pay as ASI was to be fixed
at Rs. 4,400/- in 2005, his pay must have been increased to Rs.4,500/- in
the year 2006 due to the yearly increment of pay scale as provided under
the rules. In the document marked as Annexure -X/1 annexed to the
affidavit-in-opposition of the respondent No. 5, the pay scale of the
petitioner as ASI as on 01-01-2006 is shown as Rs. 4,500/- and this factum
has not been controverted by the respondents. If that is so, there is no
substance or truth in saying that consequent upon revision of pay under the
ROP Rules, 2010, the petitioner's pay was wrongly fixed at Rs. 8,370 +
2,400/- on 01-01-2006 and that the same has led to over-payment to the
petitioner more than his entitlement. Accordingly, this court is of the
considered view that no excess payment had been made to the petitioner
on account of any wrong fixation of his pay scale at the rank of ASI and that
the deduction made by the respondents from the retiral benefits due
payable to the petitioner on the said ground is not permissible in law.
[15] The second contention of the respondents is that despite the
order dated 07-01-2010 issued by the S.P., Ukhrul, imposing major
punishment of withholding the petitioner's increment with cumulative effect
for a period of three years from the date of his suspension, the Department
released his full pay and allowances without withholding any increment and
this has resulted in over-payment of pay and allowances to the petitioner.
In this regard, the contention of the petitioner is that he has no hand or no
fault can be attributed to him in releasing the pay and allowances without
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withholding any increment in terms of the penalty order dated 07-01-2010
issued by the S.P., Ukhrul. As such, the authorities should not be permitted
to recover any excess amount already drawn from the retiral benefits of the
petitioner especially after the retirement of the petitioner from service. This
court find force and merit in the contention raised on behalf of the petitioner
in view of the principle of law laid down by the Hon'ble Apex Court in the
case of "Shyam Babu Verma" (supra), "Syed Abdul Qadir" (supra),
"Rafiq Masih (White Washer)" (supra) and "Thomas Daniel" (supra).
[16] So far as the stand of the respondent No. 5 that the deduction
had been made on the basis of the Consent Certificate given by the
petitioner is concerned, it is to be pointed out that such stand of the
respondent No. 5 had already been considered and decided by this court
in its judgement and order dated 13-07-2022 passed in WP(C) No. 574 of
2021. The operative portion of the said judgement and order are as under:-
"26. The consent/self-declaration to the effect that the petitioner
undertook to deduct overpayment of pay and allowance is
concerned, the learned counsel for the petitioner submitted that the
petitioner signed in a letter dated 28.9.2011 prepared by the Zonal
Education Officer addressed to the Senior Accounts Officer
(Pension) thereby consenting to deduct the overpayment resulted in
her pay and allowances on account of placement to higher scale of
pay so as to enable her to meet her present serious financial
hardships."
"27. Normally, if the retiring staff refused to sign in the said letter, the
pension proposal could not be processed. Therefore, faced with that
situation only, the employee was signing. In this case also, as rightly
argued by the learned counsel for the petitioner, the petitioner at that
stage is bound to sign the said letter against her will for speedy
disposal of her pension proposal. Therefore, plea of the first
respondent that based on the consent/self-declaration deduction was
made cannot be countenanced."
WP(C) No. 112 of 2019 Contd.../-
[17] The aforesaid judgment and order dated 13-07-2022 passed
in WP(C) No. 574 of 2021 had been upheld by a Division Bench of
this court in its judgment and order dated 16-12-2022 passed in WA No.
121 of 2022 and also by the Hon'ble Apex Court in its order dated
20-03-2023 passed in SLP (C) No. 4798 of 2023 and the matter has
attained finality. In my considered view, the aforesaid judgments of this
court and the Hon'ble Apex Court is applicable in the present case and
such judgments are binding on this court.
[18] It is well settled that pension is not a bounty, being a hard earned
benefits of an employee who has put in long and dedicated service till the
age of retirement. The same principle would hold good for other retirement
benefits also. It is no doubt true that that writ petitioner gave his consent in
the aforesaid Consent Certificate, agreeing to the deduction of any
Government dues from his retirement gratuity or from other pension
benefits payable to him, however, merely because his consent was given
by him did not absolve the authorities from basing such deduction on legally
valid and tenable grounds. We should also keep in mind that 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 petitioner gave
his consent is not sufficient, in itself, to hold against him and gave the
authorities a clean chit for their arbitrary and wholly unsustainable act.
[19] With regard to the contention of the respondent No. 5 that the
petitioner did not disclosed the existence of the Consent Certificate given
by him and approached this court by concealing such material evidence to
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obtain favourable order, it is to be pointed out that at the time of filing the
present writ petition, the petitioner had no idea or reason or the ground for
the deduction from his retirement gratuity. Only after filing of the counter
affidavit by the respondent No. 5, the petitioner came to know about the
reason or ground for the said deduction as disclosed in the said counter
affidavit. In such a situation, this court is of the considered view that
non-mentioning of the said Consent Certificate will not amount to
concealment of facts and taking into consideration the facts and
circumstances of the present case, as discussed hereinabove, this court is
not inclined to dismiss the present writ petition and the grounds raised by
the respondent No. 5.
[20] I have also carefully perused the three orders passed by this
court in WP(C) No. 258 of 2018, WP(C) No. 259 of 2018 and WP(C) No.
690 of 2010 relied on by the respondent No. 5. In my considered view,
nothing has been decided on merit by this court in the said orders. All the
said three writ petitions were closed after recording the submission of the
learned counsels without deciding anything on merit and as such the
said orders are not applicable in the facts and circumstances of the present
case.
Taking into consideration the facts and circumstances of the
present case and the discussions and the reasons given hereinabove and
keeping in view the earlier judgments and orders passed by this court and
the Hon'ble Apex Court, this court is of the considered view that the order
passed by the respondent No. 5 for deducting the amount of Rs. 1,89,889/-
from the retirement gratuity of the petitioner is illegal and unsustainable in
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the eyes of law and accordingly, the same is hereby quashed and set aside
so far as the order for recovery of the amount is concerned. Resultantly,
the respondents are hereby directed to release the deducted amount of
Rs. 1,89,889/- to the petitioner as early as possible but not later than two
months from the date of receipt of a certified copy of this order.
With the above directions, the writ petition stands allowed.
Parties are to bear their own costs.
JUDGE
FR / NFR
Devananda
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