Surendra Kumar Pandey vs The State Of Bihar
2022 Latest Caselaw 4822 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Civil Writ Jurisdiction Case No.698 of 2021
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Surendra Kumar Pandey Son of Late Dharamdeo Panday Resident of Mohalla- Surbhi Bihar, Post- Dhelwan, P.S.- Ram Krishna Nagar, District- Patna, Bihar- 800020.

... ... Petitioner/s Versus

1. The State of Bihar through its Principal Secretary to the Government, P.H.E.D., Bihar, Patna, Visheshwaraiya Bhavan, Bailey Road, Patna.

2. The Engineer-in- Chief-cum Special Secretary, Public Health Engineering Department, Visheshwaraiya Bhavan, Bailey Road, Patna.

3. The Chief Engineer, (Mechanical), P.H.E.D., Bihar, Patna, Bisheshwaraiya Bhavan, Bailey Road, Patna.

4. The Superintending Engineer, P.H. Mechanical Circle, Vetenary College, Patna, District- Patna.

5. The Executive Engineer, Public Health Mechanical Division, Vetenary College, Patna.

6. The Accountant General, Bihar, Veerchand Patel Marg, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Lalan Kumar Singh, Advocate. For the Respondent/s : Mr. S. Raza Ahmad, AAG-5 with Mr. Vishambhar Prasad, AC to AAG-5 ====================================================== CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR

ORAL JUDGMENT Date : 06-12-2022 Heard Mr. Lalan Kumar Singh, learned counsel for the

petitioner and Mr. Vishambhar Prasad, learned AC to AAG-5 for

the State.

Patna High Court CWJC No.698 of 2021 dt.06-12-2022

The present writ petition has been filed seeking a

direction upon the respondents to ensure the payment of pension,

Gratuity, and all other retiral benefits along with other

consequential benefits of service as has been granted to other

similarly situated persons.

It is submitted that the petitioner was duly appointed as

daily wager as Class IV grade on 24.05.1981. On the decision of

the Departmental Establishment Committed held on 11.12.1987,

the service of the petitioner was absorbed in regular establishment

under the pay scale of Rs. 350-425/- with all admissible allowance

in the work charge establishment and continued on the sanction

post. It is next submitted that after serving more than 22 years of

satisfactory service, all of a sudden the absorption of the service of

the petitioner had been converted, which was assailed by the

petitioner along with other similarly situated employees by filing

CWJC no. 19195 of 2011 and the Hon'ble Court vide its order

dated 12.04.2012 has been pleased to direct the respondents to

consider the earlier services of the petitioner for the purposes of

counting the benefit of ACP. It is further submitted that earlier

services rendered by the petitioner under the work charge

establishment has been counted for the purposes of ACP and the

benefit of financial progression under the ACP/MACP and the Patna High Court CWJC No.698 of 2021 dt.06-12-2022

pension was accorded. The petitioner superannuated on

31.05.2020, however, when the retiral benefits have not been

allowed to the petitioner, he left with no option but to approach

this court by filing the present writ application.

During the pendency of the present writ application the

respondent authorities came out with letter contained in memo no.

480 dated 15.03.2021, memo no. 445 dated 12.03.2021 and letter

dated 18.02.2021 whereby a huge amount of recovery has been

made from the retiral benefits of the petitioner, total amounting to

Rs. 6,34,787/-, which is brought on record by way of annexure 7

series to the Interlocutory Application. The aforesaid orders of

recovery has been challenged by filing I.A. No. 1 of 2021 and the

same stands allowed, vide order of this Court dated 16.08.2021.

It is further contended on behalf of the learned counsel

for the petitioner that admittedly the petitioner is a Class IV

employee, who superannuated on 31.05.2020 and prior to the

issuance of the order of recovery at no point of time any show

cause notice or any opportunity of hearing has been afforded to

him.

He next submits that the impugned order of recovery is a

unilateral decision without following the principles of natural

justice. Reliance has also been made upon the judgement of the Patna High Court CWJC No.698 of 2021 dt.06-12-2022

Apex Court rendered in the case of State of Punjab & Ors. Vs

Rafiq Masih (White Washer) & Ors. 2015 (4) SCC 334.

On the other hand, learned counsel for the State while

confronting the submissions made on behalf of the learned counsel

for the petitioner submits that the circular on the basis of which the

service benefit/pay fixation was granted to the petitioner was not

applicable in the case of petitioner as the same is meant for the

employees who were appointed in the regular establishment in the

year 1995. It is further submitted that the matter with regard to the

fixation of the pension also went to the Finance Department and

pursuant to the order passed by the Finance Department, the

impugned order of recovery has been passed as the petitioner has

been paid in excess to the amount for which he was entitled

Having heard the learned counsels for the parties and

considering the materials available on record, it is relevant to

observe that time without number, the Apex Court in catena of

judgments has held that if excess amount was not paid on account

of any misrepresentation or fraud on the part 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 Patna High Court CWJC No.698 of 2021 dt.06-12-2022

found to be erroneous, no recovery can be made in such a

situation.

The issue involved in the present writ application had

been considered by the Apex Court in various cases and one of the

important judgment rendered by the Apex Court in the case of

Syed Abdul Qadir Vs. The State of Bihar & Ors., reported in

(2009) 3 SCC 475, would be relevant for consideration of the issue

involved in the present case. For proper appreciation of the issue,

it would be proper to quote paragraph 27 and 28 of the judgment.

27. 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. 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 Patna High Court CWJC No.698 of 2021 dt.06-12-2022

may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India, [1994] 2 SCC 521; Union of India vs. M. Bhaskar, [1996] 4 SCC 416; V. Ganga Ram vs. Regional Jt., Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India & Ors. (2006) 11 SCC 709; Purshottam Lal Das & Ors., vs. State of Bihar, [2006] 11 SCC 492; Punjab National Bank & Ors. Vs. Manjeet Singh & Anr., [2006] 8 SCC 647; and Bihar State Electricity Board & Anr. Vs. Bijay Bahadur & Anr., [2000] 10 SCC 99.

28. Undoubtedly, the excess amount that has been paid to the appellants - 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 appellants-teachers submitted that majority of the Patna High Court CWJC No.698 of 2021 dt.06-12-2022

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 appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made."

Further, the Apex Court having taken note of various

judgments in this point. In the case of State of Punjab and Ors.

Vs. Rafiq Masih (White Washer) & Ors. reported in (2015) 4

SCC 334 has been pleased to postulate certain situations and

hardships governing the employees on the issue of recovery, where

payments have mistakenly been made by the employer in excess of

their entitlement. For the proper appreciation, para 10 and 18 of

the said judgment are quoted, herein below.

"10. In view of the aforestated constitutional mandate, equity and good conscience in the matter of livelihood of the people of this country has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise Patna High Court CWJC No.698 of 2021 dt.06-12-2022

of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.

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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from 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.

Patna High Court CWJC No.698 of 2021 dt.06-12-2022

(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."

Further it would not be out of place to observe that

principles of natural justice require an administrative authority to

record reasons. Generally, principles of natural justice require that

opportunity of hearing should be given to the person against whom

an administrative order is passed. The application of principles of

natural justice, and its sweep depend upon the nature of the rights

involved, having regard to the setting and context of the statutory

provisions. Where a vested right is adversely affected by an

administrative order, or where civil consequences ensue, principles

of natural justice apply even if the statutory provisions do not

make any express provision for the same, and the person

concerned must be afforded opportunity of hearing before the

order is passed. Reliance may be taken on the judgment rendered

by the Hon'ble Supreme Court in the case of Union of India &

Ors vs E.G. Nambudiri, reported in, AIR 1991 SC 1216.

It is well settled that any adverse order causing adverse

consequences in respect of person cannot be passed without

affording any opportunity of hearing to the person concern. It is

cardinal principle of administrative law that any order prejudicialy Patna High Court CWJC No.698 of 2021 dt.06-12-2022

affects the right of a person must be in consonance with the

principles of natural justice admittedly before passing the

impugned order at no point of time any show cause notice or

opportunity of hearing has been given to the petitioner. Apart from

the aforesaid aspect, it is also admitted fact that the issue involved

in the present writ application has already been considered by

catena of judgement passed by this court as no recovery is

permissible from the Class III or Class IV employees in certain

situations of hardships as discussed by the Apex Court and

especially when it is not the case of the respondent that any

misrepresentation and fraud has committed on the part of the

employees concerned. It is also not the case of the respondent that

at any point of time the petitioner was instrumental in fixation of

the pay scale and moreover, the fixation was made way back in the

year 2017 itself that too in the light of the order of this Court.

Considering the settled legal proposition, this court finds

substance in the submission of the writ petitioner and as such the

impugned orders as contained in memo no. 480 dated 15.03.2021,

memo no. 445 dated 12.03.2021 and letter dated 18.02.2021 are

hereby set aside. The respondent authorities are directed to ensure

all the retiral benefits of the petitioner preferably within a period

of eight weeks from the date of receipt/production of a copy of this Patna High Court CWJC No.698 of 2021 dt.06-12-2022

order, failing which the petitioner would be entitled to 8% interest

over the due amount till the actual payment is made.

(Harish Kumar, J) shakir/-

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