Manipur High Court
The State Of Manipur Represented By The vs Shri Leishangthem Chandrakeshore ... on 19 July, 2024
LUCY Digitally signed
by LUCY IN THE HIGH COURT OF MANIPUR
GURU GURUMAYUM
Date:
AT IMPHAL
MAYU 2024.07.19
15:03:54
M +05'30' WA No. 116 of 2023
1. The State of Manipur represented by the
Commissioner Minor Irrigation Department,
Government of Manipur Secretariat, P.O and
P.S. Imphal, Imphal West District, Manipur-
795001.
2. The Chief Engineer, Minor Irrigation
Department, Government of Manipur.
.... Appellants
-Versus-
1. Shri Leishangthem Chandrakeshore Singh,
aged about 62 years, S/o (L) L. Chaoba
Singh, resident of Tera Sapam Leirak, P.O &
P.S. Lamphel, District Imphal West, Manipur -
795001.
.... Principal Respondents
2. The Principal Accountant General, office of
the Accountant General (A&E) Manipur,
Babupara, P.O & P.S. Imphal, Imphal West
District, Manipur - 795001.
.... Respondents
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SIDDHARTH MRIDUL
HON'BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU KABUI
For the appellants : Mr. Athouba Khaidem, Govt. Advocate
For the respondents : Mr. L. Anand, Advocate
Mr. S. Suresh, Advocate
Date of hearing : 07.05.2024
Date of order : 19.07.2024
Writ Appeal no. 116 of 2023 Page 1
JUDGMENT & ORDER
(CAV)
(Golmei Gaiphullshillu, J)
[1] Heard Mr. Athouba Khaidem, learned Government
Advocate appearing on behalf of the appellants; Mr. L. Anand,
learned counsel appearing on behalf of respondent No. 1; and
Mr. S. Suresh, learned counsel appears on behalf of respondent
No. 2.
[2] The present writ appeal has been filed by the State
Appellants under IV-A of the Manipur High Court Rule, 2019
against the impugned Judgment and Order dated 02.08.2023
passed in WP(C) No. 729 of 2019 by the Hon'ble Single Judge
with the following prayer:
(i) to admit the Appeal and call for records of the
Writ petition;
(ii) to set aside the impugned judgment and
order dated 02.08.2023 passed in WP(C) No.
729 of 2019 as the same was passed without
appreciating the materials of the case.
(iii) to pass any appropriate order(s) or direction
which the Hon'ble Court deems fit and proper.
Writ Appeal no. 116 of 2023 Page 2
[3] The above referred to W.P.(C) No. 729 of 2019 was
filed by the respondent No.1/petitioner to quash a portion of the
impugned statement dated 13.10.2017 issued by the office of
the Accountant General, Manipur, on the basis of which a sum of
Rs. 5,82,002/- was recovered as excess payment/over payment
from the gratuity amount and dearness relief after his retirement
and to refund the official respondents to refund the said amount
with admissible interest.
[4] The learned counsel for the respondent No.
1/petitioner was initially appointed as Road Mohorrir in Minor
Irrigation Department, Government of Manipur in the Scale of
pay of Rs. 215-340 on 14.05.1980 and was retired from his
service on 28.02.2017 on attaining the age of superannuation.
After his retirement, the pension paper was submitted to the
authorities for processing his entitled retiral benefits. In due
course of time, the office of the respondent no.2/third
respondent issued pension payment order along with the
impugned statement showing the details of calculation of his
retirement benefits and deduction of overpayment from his
gratuity and dearness relief. He further submitted that the
impugned portion of the statement dated 13.10.2017 shows the
calculated amount of total dearness relief as Rs. 1,37,033/-;
Writ Appeal no. 116 of 2023 Page 3
gratuity payment order amount to Rs. 5,46,000/- and
commutation payment order amount to Rs. 2,97,148/-. While so,
to the utter shock, an amount of Rs. 5,82,002/- was deducted
from the total amount of gratuity payment order of Rs.
5,46,000/- and the remaining balance amount of Rs. 36,000/-
from the amount of dearness relief of Rs. 1,37,033/-.
[5] According to the learned counsel for the
respondent No. 1/petitioner there was an illegal
deduction/recovery for overpayment of a huge amount of Rs.
5,82,002/- and the same has been completely curtailed and
arbitrarily forfeited by the respondent authorities from the
retirement benefit of the respondent no.1/petitioner which would
be impermissible in law. In fact, the aforesaid deduction made
the respondent no. 1/petitioner to suffer from untold miseries
and hardships. Being aggrieved by the action of
appellants/respondents, the respondent No. 1/petitioner
submitted a representation on 19.08.2019 requesting refund of
the said amount. Though the said representation was duly
received by the office of the appellants, no action has been taken
till date.
Writ Appeal no. 116 of 2023 Page 4
[6] According to the respondent No. 1/petitioner that
the alleged overpayment by the official appellants/respondents
was not on account of any misrepresentation or fraud on the
part of the respondent no.1/petitioner. Therefore, the
respondent no.1/petitioner cannot be held liable and made to
suffer for the wrong committed by the officials. The respondent
no.1/petitioner is presently facing lot of hardship for survival with
the meager retirement benefits he is receiving after the
deduction/recovery made by the appellants/respondents
authorities. Thus, a prayer has been made to dismiss the appeal
as devoid of merit and to pass an appropriate order for the ends
of justice.
In support of his case, he has relied upon the
following judgment;
1. (2015) 4 SCC 334 - [State of Punjab & Ors v.
Rafiq Masih (White Washer) & Ors. - Para- 5,
6, 7, 8, 16 and 18]
2. (2009) 3 SCC 475 - [Syed Abdul Qadir & Ors
v. State of Bihar & Ors. Para-59, 60 and 61]
3. (1994) 2 SCC 521 - [Shyam Babu Verma and
Ors v. Union of India & Ors. Para - 11]
4. (1995) Supp (1) SCC 18 - [Sahib Ram v. The
State of Haryana. Para - 5]
Writ Appeal no. 116 of 2023 Page 5
5. Judgment & Order passed by the Ld. Division
Bench of the Hon'ble Court in W.A No. 121 of
2022 on 16.12.2022 - para. 12.
6. Dismissal order passed by the Hon'ble
Supreme Court in S.L.P (C) No.(s). 4798/2023
on 20.03.2022.
7. (2012) 8 SCC 417 [Chandi Prakash Uniyal &
Ors - v. The State of Uttarkhand & Ors. Para
- 11 and 12]
8. (2014) 8 SCC 883 - [State of Punjab & Ors v.
Rafiq Masih (White Washer) & Ors. - Para- 6,
8, 13 and 14]
9. (2024) 8 SCC 883 - [Iveco Magirus
Brandschutztechnik Gmbh V. Nirmal Kishore
Bhartiya and another. Para -55]
10. (2022) LiveLaw (SC) 438 - [Thomas Daniel v.
The State of Kerala. Para - 12, 13 and 14]
[7] The learned counsel for the respondent No.2/third
respondent submitted that on scrutiny of pension papers and
service records of the respondent No.1/petitioner, it was found
that the respondent No.1/petitioner was appointed as Road
Mohorrir in the Scale of pay of Rs. 215-340/- w.e.f 14.05.1980.
Under ROP 1999, the pay of the respondent no.1/petitioner was
fixed in the scale of pay of Rs. 3050-4590/- w.e.f. 01.01.1996.
He was granted ACP-I in the scale of pay of Rs. 4000-100-6000/-
and his pay was fixed at Rs. 4500/- on 01.07.2005 and ACP-II in
the scale of pay of Rs. 5000-150-8000 and his pay was fixed at
Writ Appeal no. 116 of 2023 Page 6
Rs. 5,000/- on 01.07.2005. However, as per condition 8 of the
conditions for grant of benefits under the ACP Scheme as
contained in Annexure-I to the office memorandum dated
20.07.2005 issued by the Government of Manipur, Finance
Department, the financial up gradation under the scheme shall
be given to the next higher grade in accordance with the existing
hierarchy in the grade/category of posts without creating new
posts for the purpose. .
[8] The learned counsel for the respondent No. 2/third
respondent further submitted that when the respondent
No.1/petitioner was entitled to financial up gradation under ACP-
I and ACP-II w.e.f. 01.07.2005, his pay should have been fixed
at Rs. 4,475/- in the scale of pay at Rs. 3200-4900/- i.e. the next
higher pay scale from his existing scale of Rs. 3050-4590/- but it
was wrongly fixed at Rs. 4000-6000/- by jumping one additional
stage under ROP Rules, 1999 and in ACP-II his pay should have
been fixed at Rs. 4,600/- in the scale of pay of Rs. 4000-6000/-
i.e. next higher pay scale of Rs. 3200-4900/- but it was wrongly
fixed at Rs. 5,000/- in the scale of pay of Rs. 5000-8000/-. He
further submitted that consequent on revision of pay under ROP
2010, the pay of the respondent No.1/petitioner was fixed at Rs.
9,300/- in the pay band of Rs. 9300-34800/- with grade pay of
Writ Appeal no. 116 of 2023 Page 7
Rs. 4,200/- w.e.f. 01.01.2006 which should have been fixed at
Rs. 8,560/- in pay band of Rs. 5200-20200/- with grade pay of
Rs. 2,400/- w.e.f. 01.01.2006. Due to non-fixation of pay to the
corresponding higher scale of pay while granting financial up
gradation under ACP-I and ACP-II respectively and the non-
fixation of pay in the corresponding pay band of Rs. 5200-
20020/- with grade pay Rs. 2400/- w.e.f. 01.01.2006 under ROP
Rules, 2010, there was overpayment of pay and allowances
amounting to Rs. 5,82,002/-.
[9] The learned counsel for the respondent No. 2/third
respondent further submitted that the said irregularities was
intimated to the Chief Engineer, Minor Irrigation Department,
Government of Manipur on 28.06.2017. Pursuant to the said
letter, the Chief Engineer submitted the service book of the
individual and the order dated 28.08.2017 for recovery of excess
payment of pay and allowances amounting to Rs 5,82,002/- vide
letter dated 30.08.2017.
[10] The learned counsel for the respondent No.2/ third
respondent further submitted that on the basis of the consent
certificate given by the respondent No.1/petitioner consenting
that he has no objection to the recovery of the Government
dues/outstanding dues, if any found/detected from the
Writ Appeal no. 116 of 2023 Page 8
receivable retirement gratuity coupled with the order/decision
from the Executive Engineer, MID. The respondent no.2/third
respondent settled the retiral benefits of the respondent
no.1/petitioner after adjusting the amount of Rs. 5,82,002/-
being overpayment of pay and allowances from the retirement
gratuity of the respondent No.1/petitioner.
[11] The learned counsel for the respondent No.2/third
respondent further submitted that the officer of Accountant
General/Principal Accountant General performs his/her duties
within the parameters laid down by the Comptroller and Auditor
General of India in accordance with the provision of the
Constitution of India read with Comptroller and Auditor General's
(Duties, Powers and Conditions of Services) Act, 1971 (DPC Act,
1971 for short). The action of the respondent no.2/third
respondent is in accordance with the provisions of Rule 70(A),
71(2) and 73(3) of Manipur Civil Services (Pension) Rule, 1977.
He further submitted that the Principal Accountant
General/Accountant General is not responsible for the
administrative function/decision of the State authority except for
compliance of the State authority in relation to GPF, Pension and
gazette entitlement. It is the say of the respondent No.2/third
respondent that in accordance with Rule 70(A), 71(2) and 73(3)
Writ Appeal no. 116 of 2023 Page 9
of Manipur Civil Services (Pension) Rule, 1977 read with the GI
decision no. 6 below Rule 73 of the MCS (Pension) Rules, 1977,
the respondent No.2/third respondent settled the pension by
deducting overpaid pay and allowances amounting to Rs.
5,82,002/-.
In support of his case, the respondent No.2/third
respondent relied upon the following Judgment;
1. (2012) 8 SCC 417 - [Chandi Prasad Uniyal
and others v. State of Uttarkhand and
others. Para- 13, 14]
2. (2014) 8 SCC 883 - [State of Punjab & Ors
v. Rafiq Masih (White Washer) & Ors. - Para-
6, 7, 8, 11, 12]
3. (2016) 14 SCC 267 - [High Court of Punjab
& Haryana v. Jagdev Singh - para - 3, 11]
4. (2008) 12 SCC 481 - [K.D. Sharma v. State
Authority of India Ltd. para - 34, 36, 38, 39]
5. (2020) 4 SCC 1 - [Dr. Shah Faesal and Ors
v. Union of India and anr. - para - 23]
6. (2021) 12 SCC 1 - [S. Kasi v. State through
Inspector of Police - para - 35, 36]
7. (1992) Sup 3 SCC 62 - [Vikramjit Singh v.
State of Madhya Pradesh - para - 3]
8. (2010) 9 SCC 385 - [Jai Singh and Ors v.
MCD - para -37]
9. (2020) 3 SCC 133 - [P. Singaravelan v.
Collector, Tiruppur - para - 18.2]
Writ Appeal no. 116 of 2023 Page 10
10. (1991) 4 SCC 139 - [State of U.P. and anr
vs. Synthetics and Chemicals Ltd. and anr -
para - 41]
11. (2002) 3 SCC 496 - [Haryana Financial
Corporation and other vs. Jagdamba Oil Mills
& Anr - para - 21, 22]
12. (2005) 2 SCC 673 - [Central Board of
Dawoodi Bohra Community and anr v. State
of Mahasrasthra and anr - para - 7]
13. (2020) 4 SCC 1 - [Dr. Shah Faesal and ors v.
Union of India and anr - para - 28]
14. (2005) 3 SCC 409 - [Karnataka State Road
Transport Corporation and anr vs. S.G.
Kotturappa and anr - para - 24]
15. (2007) 13 SCC 352 - [Secretary, Andhra
Pradesh Social Welfare Residential
Educational Institutions Vs Pindiga Sridhar
and ors - para - 7]
16. (2010) 1 SCC 417 - [Amarjeet Singh and ors
v. Devi Ratan and ors - para - 28]
17. (2022) 2 SCC 221 - [Arce Polymers Pvt. Ltd.
v. Alpine Pharmaceuticals Pvt. Ltd.and ors -
para - 16, 20]
[12] In the above referred to WP(C) No. 729 of 2019,
the Hon'ble Single Judge passed the impugned order dated
02.08.2023, the relevant portion of the order reads as follows;
"34. For the reasons stated supra, this Court is of the
view that the prayer made in the writ petition is
acceptable and accordingly, this Court is inclined to pass
the following order:
(i) The writ petition is allowed.
(ii) The portion of the impugned statement
dated 13.10.2017 issued by the office of the
Accountant General, Manipur, whereby
Writ Appeal no. 116 of 2023 Page 11
deduction of a sum of Rs. 5,82,002/- is made
from the gratuity amount and dearness relief
of the petitioner is set aside.
(iii) The official respondents are directed to
refund the amount of Rs. 5,82,002/- to the
petitioner within a period of three months
from the date of receipt of a copy of this
order.
(iv) There will be no order as to costs."
[13] Being aggrieved by the order dated 02.08.2023,
the State appellants has preferred the present appeal. The
appellants contended that the impugned judgment suffers from
serious error of facts and law as the impugned judgment has
been passed without considering the point raised by the
respondent. No. 2/third respondent. As per the appellants, the
Hon'ble Single Judge has failed to appreciate the undisputed
factual position that the respondent No.1/petitioner was wrongly
given higher pay scales under ACP-I and ACP-II which was not
entitled to him at the relevant point of time and as such he was
given higher pay scale in violation of the Rules. He further
contended that it will cause irreparable loss to the State
Exchequer if the amount of Rs. 5,82,002/- is refunded to the
respondent No.1/petitioner.
In support of his case, the appellant relied
upon the following judgment:
1. (2012) 8 SCC 417 - [Chandi Prasad Uniyal and
others v. State of Uttarkhand and others]
Writ Appeal no. 116 of 2023 Page 12
"14. We are concerned with the excess
payment of public money which is often described
as "taxpayers' money" which belongs neither to the
officers who have effected overpayment nor to the
recipients. We fail to see why the concept of fraud
or misrepresentation is being brought in such
situations. The 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 the government
officers may be due to various reasons like
negligence, carelessness, collusion, favouritism, etc.
because money 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 the 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.
15. We are, therefore, of the considered view
that except few instances pointed out in Syed Abul
Qadir case and in Col. B.J. Akkara case, the excess
payment made due to wrong/irregular pay fixation
can always be recovered.
16. The appellants in the appeal will not fall
in any of these exceptional categories, over and
above, there was a stipulation in the fixation order
that in the condition of irregular/wrong pay fixation,
the institution in which the appellants were working
would be responsible for recovery of the amount
received in excess from the salary/pension. In such
circumstances, we find no reason to interfere with
the judgment of the High Court. However, we order
that the excess payment made be recovered from
the appellants salary in twelve equal monthly
installments starting from October, 2012."
2. (2016) 14 SCC 267 - [High Court of Punjab &
Haryana vs. Jagdev Singh]
"7. The respondent challenged the action for
recovery in writ proceedings under Article 226. The
petition was allowed by the impugned judgment of
Writ Appeal no. 116 of 2023 Page 13
the High Court. The High Court found substance in
the grievance of the respondent that the excess
payment made to him towards salary and allowance
prior to his retirement could not be recovered at that
stage, there being no fraud or misrepresentation on
his part.
8. The order of the High Court has been
challenged in these proceedings. From the record of
the proceedings, it is evident that when the
respondent opted for the revised pay scale, he
furnished an undertaking to the effect that he would
be liable to refund any excess payment made to
him. In the counter-affidavit which has been filed by
the respondent in these proceedings, this position
has been specifically admitted. Subsequently, when
the Rules were revised and notified on 07-05-2003 it
was found that a payment in excess had been made
to the respondent. On 18-02-2004, the excess
payment was sought to be recovered in terms of the
undertaking.
12. For these reasons, the judgment of the
High court which set aside the action for recovery is
unsustainable. However, we are of the view that the
recovery should be made in reasonable installments.
We direct that the recovery be made in equated
monthly installments spread over a period of two
years."
3. (2008) 12 SCC 481 - [K.D. Sharma vs. Steel
Authority of India Ltd. & Ors]
"52. ........the appellant has not come forward with
all the facts. He has chosen to state the facts in the
manner suited to him by giving an impression to the
writ court that an instrumentality of State (SAIL) has
not followed doctrine of natural justices and
fundamental principles of fair procedure. This is not
proper. Hence, on that ground alone, the appellant
cannot claim equitable relief....."
[14] The learned counsel for the respondent No.
1/petitioner submits that due to erroneous fixation of the pay
scale of the respondent No. 1/petitioner which had occurred
during the year 2005-2006 was not on the fault,
Writ Appeal no. 116 of 2023 Page 14
misrepresentation or fraud of the petitioner but because of the
fault of the appellants/respondents. The arbitrary action of the
respondents of making recovery, after retirement of the
petitioner from a Class-III service, the excess payment which
had occurred more than 10 years before the actual recovery was
made in 2017 is highly iniquitous, unjustifiable and arbitrary and
causing untold hardships and miseries to the retired petitioner
and his family.
[15] The learned for the respondent No. 1/petitioner
further submits that it has become a general norm in the State of
Manipur where retired employees are compelled to a
letter/consent/undertaking of no-objection to recovery of any
excess payment, against their conscience, for speedy sanction of
their pension proposals. In such a situation, if the retiring or
retired staff refused to give the kind of
letter/consent/undertaking as aforesaid, the pension proposal
could not be processed. He further submits that the said consent
letter was signed by the respondent no.1/petitioner against his
will for speedy sanction of his pension proposal.
In support of his case, he relied upon section 16 of
the Indian Contract Act, 1872, which reads as follows:
Writ Appeal no. 116 of 2023 Page 15
"16.
(1) A contract is said to be induced by
"undue influence" where the relations
subsisting between the parties are such
that one of the parties is in a position to
dominate the will of the other and uses
that position to obtain an unfair
advantage over the other.
(2) In particular and without prejudice
to the generality of the foregoing
principle, a person is deemed to be in a
position to dominate the will of the
another-
(a) where he holds a real or
apparent authority over the other,
or where he stands in a fiduciary
relation to the other;"
He, further, submits that it is well settled that any
consideration or object of an agreement which is forbidden by
law or which may cause injury to person or property of another
or opposed to public policy is unlawful.
[16] We have heard the submissions made by the
learned counsel for the parties and also examined the materials
placed before us in details. In the instant case, it is admitted
position of fact that the respondent No.1 (Principal respondent)
was appointed as Road Mohorrir in Minor Irrigation Department
on 14.05.1980 and retired from service at the same post on
28.02.2017 on attaining the age of superannuation. Statement
dated 13.10.2017 (showing the calculated amount entitle to the
respondent no.1 issued by the office of the Accountant General
(A&E), Manipur, Imphal) is extracted herein below:
Writ Appeal no. 116 of 2023 Page 16
"OFFICE OF THE ACCOUNTANT GENERAL (A&E)
MANIPUR. IMPHAL-795001
(PENSION PAYMENT ORDER)
PART-1
P.Ρ.Ο No. 111709863
Debitable to Govt. of Manipur
Head of Accounts "2071-Pension and other Retirement
Benefits".
1. "UNTIL FURTHER NOTICE, and on the expiration of
every month,
be pleased to pay to Shri/Smt L. CHANDRAKESHORE
SINGH Rs. 7555:00 (Rupees Seven Thousand Five
Hundred Fifty Five) only
Under Rupees Seven Thousand Five Hundred Fifty Six
ONLY
the Pension as set out in part-II of this order plus the
amount of dearness relief as admissible from time to
time thereon after due identification of the pensioner,
the payment of pension should commence from
01/03/2017
2. In the event of death L. CHANDRAKESHORE SINGH
Family pension of Rs. 7555.00 Rupees Seven Thousand
Five Hundred Fifty Five only per month may be paid to
L. MERATOMBI DEVI spouse(s) from the day following
the date of death of pensioner tilt the expiry of 7 years
on completion of 67 years of age, had the retiree
survived whichever is earlier, and thereafter at the rate
of Rs. 4533.00 subject to the conditions specified in the
Special Instructions to TOs Rupees Four Thousand Five
Hundred Thirty Three ONLY
3. The lncome Tax where deductable, should be
deducted at source Under Rupees Four Thousand Five
Hundred Thirty Four ONLY
Signature
(Sr.) Accounts Officer (Pen)
Sd/-
(13.10.2017)
Pension Payment order issuing Authority
To
The Dist Treasury Officer
IMPHAL WEST
Writ Appeal no. 116 of 2023 Page 17
PART - II
PPO NO. 111709863
1. Name of the Govt. Servant 2. Post Held ROAD - MOHORRIR
SHRI L. CHANDRAKESHORE SINGH Pay Band: 9300-34800 GP-4200
3. Office EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION-I M.I. DEPT.
MANIPUR
4. Residential Address Sagolband Tera Sapam Leirak
5. Date of birth of Date of Date of retirement Date of death
Govt. Employee Appointment
01/03/1957 28/02/2017
14/05/1980
6. Class of pension Gross Qualifying Service Net Qualifying Service
Superannuation Pension 36 y-9 M-18 D 33 YEARS
7. Average Emoluments of Emoluments for RG Last Pay drawn
Emoluments Pension
Rs. 15110 Rs. 33091 Rs. 15110
8. Amount of Pension withheld Commuted pension Net pension
pension Rs. NIL Rs. 3022.00 Rs. 4533
Rs. 7555
9. Provisional Pension paid @ NIL
Rs Which is to be adjusted p.m.
From
10. Provisional Death-cum-Retirement Gratuity already paid/Authorised is to be
adjusted
11. Amount of family pension:
(a) Enhanced rate Rs. 7555.00 Please see clause 2 on page 1
(b) Normal rate Rs. 4533.00
12. Details of family members eligible for family pension :
Sl. No. Name Relationship with Date of birth Whether
Govt. Employee handicapped
1. L. MERATOMBI DEVI WIFE 01/03/1965 N
2. L. PADAMARANI DAUGHTER 01/02/1987 N
DEVI
3. L. RANIBALA DEVI DAUGHTER 03/01/1992 N
Special Remarks
Overpayment of pay and allowances amounting of Rs.
36,000/- will be recovered from the relief of the
pensioner.
Sd/-
Sr. Accountant General
Office of Accountant General
(A&E)
Manipur Imphal
PPO No. 111709863
No. Press1//3141712832/1/19 L. Chandrakeshore Singh dated 13-10-017
1st Pension @ Rs. 7555 w.e.f. 01-03-017 to 31-10-017 = Rs. 60,440=00
119% X 7555 DR Rs. 8991 w.e.f. 01-03-017 to 31-05-017 =Rs. 26,973=00
125% X 7555 DR Rs. 9444 w.e.f. 01-06-017 to 31-10-017 = Rs. 47200=00
MA 300 w.e.f. 01-3-017 to 31-10-017 = Rs. 2400=00
Total- Rs. 1,37,033=00
Writ Appeal no. 116 of 2023 Page 18
Recovery for the relief of Pensioner Rs. 36000=00
Pay Rs. 101033/- (Rupees one lakh one thousand and thirty three) only
(ii) GPO No. 121709863 -------------- dated 18-09-2017
Gratuity Rs. 546,000=00
Less Govt due O.P.(-) Rs. 582002=00
-Nil-
Over Payment Pay and
Allowances will be recovered for pensioner
Rs. 36,000/-
(iii) CPO No.: 131709863 Dated 18-09-2017
Pay Rs. 297148/- (Rupees two lakhs ninety seven thousand on hundred forty
eight) only.
Commuted value 3022/-
Sd/-
Sr. Accountant"
But, the appellant authority deducted/recovered a
sum of Rs. 5,82,002/- from the total amount entitled to the
respondent No. 1/petitioner as excess payment/overpayment.
[17] From the material placed before us, it is evident
that the respondent no.1 was appointed in the year 1980 on
regular basis as Road Mohorrir and retired in the same post in
the year 2017 i.e. for 37 years rendered his service for the Govt.
of Manipur. Even after almost 20 years, the appellant/respondent
failed to take initiative to modify or revoked the said impugned
statement dated 13.10.2017 issued by the Accountant General
on which basis a sum Rs. 5, 82,002/- was recovered as excess
overpayment from the gratuity amount and dearness relief after
his retirement. In such situation, we are of considered view that
at this point of time no recovery can be made by the authorities
from the retiral benefits and other service benefits of the
Writ Appeal no. 116 of 2023 Page 19
petitioner in view of the settled principal of law laid down by the
Apex Court as well as by this Court. In this regard, we are relying
on the Judgment rendered by the Apex Court in the case of
"State of Punjab & Ors vs. Rafique Masih (White Washer)
& Ors." [(2015) 4 SCC 334] wherein after referring to a
number of its earlier judgments, it has been held by the Hon'ble
Apex Court 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 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."
Writ Appeal no. 116 of 2023 Page 20
The learned Apex Court laid down few guidelines
wherein recoveries of the employees would be impermissible in
law, such situations are:- (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; and (iii) recovery from the employees, when
excess payment has been made for a period in excess of five
years, before the order of recovery is issued.
[18] In the instant case, it is undeniable fact that the
respondent No.1/petitioner holds Class - IV (Group-D) post from
the date of joining of his service till his retirement and since, any
alleged excess payment has been made decades back, we are of
the considered view that it is not permissible to make any
recovery from the retirement benefit of the petitioner on ground
of excess payment of pay and allowances in view of the principle
of law laid down by the Hon'ble Apex Court reproduced herein
above.
[19] The jurisprudence relied upon by the appellants as
reproduced above are not applicable in the facts and
circumstances of the instant case.
Writ Appeal no. 116 of 2023 Page 21
[20] For the reasons mentioned above, in our view, the
learned Single Judge rightly passed the impugned order wherein
the learned Single Judge set aside the portion of the impugned
statement dated 13.10.2017 issued by the office of the
Accountant General Manipur, whereby deduction of a sum of Rs.
5,82,002/- made from the gratuity amount and dearness relief of
the respondent No. 1/petitioner with the direction to the
appellants and the respondent No. 2 to refund the deducted
amount of Rs. 5,82,002/- to the respondent No. 1/petitioner.
[21] Accordingly, the present writ appeal is dismissed
with direction that the appellants and respondent No. 2 are to
refund the deducted amount of Rs. 5,82,002/-(Rupees five lakh
eighty two thousand and two) to the respondent No. 1/petitioner
within a period of 2 months from the date receipt of a copy of
this order.
No order as to costs.
JUDGE CHIEF JUSTICE
FR/NFR
Lucy
Writ Appeal no. 116 of 2023 Page 22
