Punjab-Haryana High Court
Gurcharan Singh vs Chandigarh Administration ... on 6 January, 2023
RSA-2913-2022 (O&M) and other connected case 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(107) RSA-2913-2022 (O&M)
Date of Decision : January 06, 2023
Gurcharan Singh .. Appellant
Versus
Chd. Admn. Through Secretary, Transport, UT, Chd. And another
.. Respondents
(107-A) RSA-2917-2022 (O&M)
Gurcharan Singh .. Appellant
Versus
Chandigarh Administration Through Secretary Transport UT
Chandigarh and another
.. Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Pratap Singh Gill, Advocate, for the appellant(s)
in both appeals.
Mr. Anil Kumar Sharma, Sr. Standing Counsel, with
Mr. Deepak Malhotra, Standing Counsel, for U.T. Chandigarh.
HARSIMRAN SINGH SETHI J. (ORAL)
By this common order, two Regular Second Appeals, the
details of which have been given in the heading of the order, are being
disposed of as both the appeals involve the same question of law on similar
facts.
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First, leading to the filing of the present Regular Second
Appeal needs to be noticed in order to appreciate the controversy.
The appellant joined as a Clerk with the Chandigarh Transport
Undertaking in April, 1990. As the appellant was an ex-serviceman, after
the approval given by the Finance Secretary on 02.09.1992, the pay of the
appellant for which he was entitled for was fixed in the cadre of Clerk. The
appellant kept on drawing the said pay until the same was re-fixed vide
order dated 13.10.1998 keeping in view the objections which were raised by
the Department of Accountant General in October 1997. The said order of
re-fixing the salary of the appellant was challenged before the Central
Administrative Tribunal and the said order of re-fixation dated 13.10.1998
was upheld by the Tribunal and the original application filed was dismissed.
The order passed by the Central Administrative Tribunal dated
04.06.2000 was challenged by the appellant by filing CWP No.7006 of 2003
which was allowed by the Division Bench of this Court on 20.03.2008 and
held that the fixation of the pay keeping in view the approval given by the
Finance Secretary dated 22.11.2010 was perfectly valid and legal, hence, the
order dated 13.10.1998, re-fixing the salary of the appellant was bad and the
same was set aside.
The order passed by the Division Bench dated 20.03.2008 was
challenged by the Chandigarh Administration before the Hon'ble Supreme
Court of India and the SLP was converted into Civil Appeal No.9873 of
2013 titled as U.T. Chandigarh and others vs. Gurcharan Singh and
another and the same was decided vide order dated 01.11.2013. The
Hon'ble Supreme Court of India held that the order refixing the salary of the
appellant dated 13.10.1998 was perfectly valid and legal and the order
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passed by the Division Bench dated 20.03.2008 was set aside. Further, the
respondent-Chandigarh Administration was permitted to calculate as to
whether, any amount was paid to the appellant over and above his
entitlement so as to adjust the same.
After the decision of the Hon'ble Supreme Court of India dated
01.11.2013, the respondents calculated the amount paid to the appellant and
keeping in view the order of re-fixation dated 13.10.1998, the appellant was
paid a sum of Rs.1,78,219/- over and above his entitlement, which needs to
be recovered along with interest. As the said amount was not paid, the
Chandigarh Administration filed a civil suit for recovery of the said amount
along with interest @ 9% per annum. During the pendency of the civil suit,
the appellant also filed a counter claim for the recovery of Rs.2,80,302/-.
The civil suit along with the counter claim was decided by the
trial Court vide order dated 08.01.2020 and the suit filed by the Chandigarh
Administration for the recovery of Rs.1,78,219/- along with interest from
the year 1997 was allowed and the counter claim filed by the appellant was
dismissed. Against the said order, the appellant filed the appeal being Civil
Appeal No.112 of 2020 which was dismissed by the Lower Appellate Court
on 07.09.2022.
Present two Regular Second Appeals have been filed. One
against allowing of the suit filed by the Chandigarh Administration for the
recovery of the amount as envisaged in the order dated 17.04.2014 along
with interest and the dismissal of the appeal filed by the appellant qua the
said relief of the trial Court and the 2nd Regular Second Appeal has been
filed qua the dismissal of the counter claim filed by the appellant, which
order was upheld by the trial Court.
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Learned counsel for the appellant argues that though in the
Regular Second Appeal, the prayer of the appellant is for declining the
claim of Chandigarh Administration with regard to the recovery of amount
of excess payment made to him, but the same be treated as not pressed
keeping in view the order passed by the Hon'ble Supreme Court of India in
Civil Appeal No.9873 of 2013 titled as U.T Chandigarh & others vs.
Gurcharan Singh & others, decided on 01.11.2013. Learned counsel for
the appellant further argues that the only claim of the appellant is qua the
grant of interest on the excess payment by the trial Court and also the rate of
interest which have been allowed in favour of the Chandigarh
Administration.
Learned counsel for the appellant submits that as the Hon'ble
Supreme Court of India only allowed the recovery of the excess amount,
paid to the appellant, the claim of the Chandigarh Administration for grant
of interest on the said excess amount paid is beyond the permission given by
the Hon'ble Supreme Court of India, hence, allowing of the interest on the
excess payment given to the appellant by the trial Court and the rate of
interest @ 9% interest and that too from the year 1997 onwards is totally
arbitrary and illegal and contrary to the settled principle of law.
Learned counsel for the appellant further submits that the grant
of interest as well as rate of interest as allowed by the Courts below be set
aside as the appellant is ready to discharge his liability of the excess amount
which he has received in pursuance to the wrong fixation of his pay, which
re-fixation of pay has already been upheld by the Hon'ble Supreme Court of
India.
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Learned counsel for the appellant further submits that the
counter claim filed by the appellant which has been disallowed by the trial
Court as well as the lower Appellate Court, though challenged in the present
Regular Second Appeals but the same may kindly be treated as not pressed.
Learned counsel appearing on behalf of the respondents
submits that once it was found that the pay of the appellant was wrongly
fixed in the year 1992 and the same was re-fixed in the year 1998. The
amount of excess payment paid to the appellant needs to be recovered along
with interest as the said amount was retained by the appellant beyond his
entitlement. Learned counsel for the respondents argues that even the grant
of 9% interest is perfectly valid and legal, hence, the prayer of the
respondents qua the grant of interest and the quantum of interest by the trial
Court, which order has been upheld by the lower Appellate Court, be
maintained and the Regular Second Appeals filed by the appellant may
kindly be declined.
I have heard learned counsel for the parties and have gone
through the record with their able assistance.
The pay of the appellant was fixed after he joined the service of
the Chandigarh Transport Undertaking in the year 1990. The said pay was
fixed by the respondents themselves without there being any intervention by
the appellant and that too after getting an approval from the higher
authorities i.e Finance Secretary. Though in the year 1997, the objections
were raised by the office of Accountant General qua the said fixation and
later on, the pay of the appellant was re-fixed on 13.10.1998 whereas the
said order was under litigation upto November, 2013. At one point, the
Division Bench of this Court quashed the order of re-fixation i.e.
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13.10.1998 and held that pay of the appellant was wrongly fixed in the year
1992. The final adjudication was done by the Hon'ble Supreme Court of
India qua the order of re-fixation dated 13.10.1998 while passing the order
dated 01.11.2013. While passing the said order dated 01.11.2013, qua the
excess payment, the Hon'ble Supreme Court of India recorded as under:-
" 12. Though a submission had been made on behalf of
the respondent that no amount should be recovered from the
salary paid to the respondent, the said submission can not be
accepted because if any amount had been paid due to mistake,
the mistake must be rectified and the amount so paid in
pursuance of the mistake must be recovered. It might also
happen that the employer might have to pay some amount to
the respondent as a result of some mistake and in such an
event, even the appellant might have to pay to the respondent.
Be that as it may, upon settlement of the account, whatever
amount has to be paid to the respondent employee or to the
appellant employer shall be paid and the account shall be
adjusted accordingly."
No question of interest on the excess payment was raised by the
Chandigarh Administration or was allowed by the Hon'ble Supreme Court
of India even while giving permission to recover the excess amount paid.
Hence, keeping in view the direction given by the Hon'ble Supreme Court
of India, only the excess amount could have been recovered from the
appellant.
It is a conceded case of the respondents that the excess payment
was computed for the first time in October 2014 after which, notice was sent
to the appellant for deposit of the same and upon failure to do so, the suit of
recovery was filed for recovery of the amount along with interest @ 9%.
Hence, the claim and the interest on the excess amount from the year 1997,
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even before the re-fixation of the salary of the appellant, which was done on
13.10.1998 or demand of recovery of excess amount made for the first time
in April, 2014 is not at all correct and cannot be allowed.
Further, even upto the date when the judgment was rendered by
the Hon'ble Supreme Court of India on 01.11.2013, only permission granted
was to recover the excess amount paid to the appellant and that too in case it
is found to have been paid to the appellant. The said amount was calculated
for the first time in April 2014.
A bare perusal of order of re-fixation dated 13.10.1998 would
show that only order of re-fixation of salary was passed but no order of
recovery was ever passed then, hence, once there was no order of recovery
in the year 1997 or even in the year 1998, how can an interest on the said
amount be awarded by the trial Court for the year 1997 especially when the
refund of the excess amount was concededly made for the very first time in
April 2014, hence, the grant of interest by the trial Court from 1997
onwards is without appreciating the actual facts on the record.
Further, no justification has been given in the judgment itself
for granting the interest from the year 1997 as being claimed. All the
discussion in the judgment is qua the liability of the appellant to refund the
excess amount to him. That being so, allowing the interest as being claimed
by the Chandigarh Administration only in the "relief para" is not within the
scope of pleadings and have been made without appreciating the
controversy in the correct perspective.
Further, once the claim from the appellant of the excess amount
was made in April 2014, and the excess amount received is not refunded by
the appellant in a reasonable time, the Chandigarh Administration can be
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held entitled for the grant of interest keeping in view the judgment of the
Hon'ble Supreme Court of India according to which, the appellant was
liable to refund the excess amount paid to him in view of the wrong fixation
of his salary as done in the year 1992. The reasonable period for refund of
payment could be two months, hence it can be safely said that once the
amount paid in excess to the appellant was demanded back for the first time
on 14.04.2014, the reasonable period for the refund would be by 14.06.2014
and the said amount should have been refunded back by the appellant and as
the appellant concededly did not refund the said amount by 14.06.2014 and
forced the Chandigarh Administration to file a recovery suit, the Chandigarh
Administration is held entitled for the grant of interest as amount belonging
to the Chandigarh Administration, was not released by the appellant and
was retained and used by the appellant, the Chandigarh Administration is
held entitled for interest on the said excess payment starting from
01.06.2014 onwards.
Now the question comes as to what should be quantum of
interest. Whether the claim of 9% interest by the Chandigarh
Administration and the grant of the same by the trial Court and upheld by
the lower Appellate Court, is valid or not.
As per Section 34 of the CPC, the Court has to award the
reasonable interest rate while passing a decree for the payment of money.
In the present case, there is not even a single averment in the
order passed by the trial Court dated 08.01.2020 as to how, a sum of 9% per
annum has been held to be reasonable. Rather, there is no discussion with
regard to the entitlement of the interest in the judgment of the trial Court
and the interest has been granted in the relief clause. As per Section 34 of
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the CPC, the reasonable interest has to be granted, which interest along with
rate of interest should be commensurate to the landing or advancing of the
money by the nationalized bank in the absence of any such consideration in
the judgment of the trial Court as well as the lower Appellate Court, grant of
interest on the excess payment liable to be refunded by the appellant is held
to be bad.
Keeping in view the fact that the appellant is an ex-serviceman,
who is litigating with the respondents for the last 22 years and is 80 years
old now, the interest is granted @ 6% on the amount of excess payment
liable to be refunded by the appellant w.e.f. 01.06.2014 onwards till the
actual refund of the excess payment.
Learned counsel for the appellant argues that keeping in view
the judgment of the Hon'ble Supreme Court of India in State of Punjab
and others vs. Rafiq Masih (White Washer) etc., 2015 (1) S.C.T., 195, no
recovery can be made from a retired employee especially where there is no
misrepresentation on part of the employee to get the excess payment.
Though, there is no dispute with the said proposition but prior to the said
judgment, which was delivered in the year 2015, the question qua the
recovery of the amount from the appellant has already been settled intra
party by the Hon'ble Supreme Court of India while passing order dated
01.11.2013. Once, there is a specific order allowing the recovery from the
appellant, the subsequent general law will not over ride the said decision of
the Hon'ble Supreme Court of India dated 01.11.2013, hence, the liability of
the appellant to refund the excess payment keeping in view the order passed
by the Hon'ble Supreme Court of India dated 01.11.2013, recovery of the
excess amount from the appellant in pursuance to the order dated
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17.04.2014 is upheld.
Learned counsel for the appellant submits that keeping in view
the order passed, on the next date of hearing before the Executing Court, the
appellant will tender the excess amount alongwith interest assessed by this
Court.
The present appeals are disposed of in above terms.
CM-9956-C-2022 and CM-9966-C-2022
As the main appeals are disposed of, present applications also
stand disposed of.
A photocopy of this order be placed on the file of other
connected case.
January 06, 2023 (HARSIMRAN SINGH SETHI)
harsha JUDGE
Whether speaking/reasoned : Yes
Whether reportable : Yes
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