Punjab-Haryana High Court
Bikram Kishore Kanungo vs Sant Longowal Institute Of Engg. And ... on 19 November, 2024
Neutral Citation No:=2024:PHHC:151049
CWP-22022-2015 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
213
CWP-22022-2015
Date of decision: 19.11.2024
Bikram Kishore Kanungo ....Petitioner
Versus
Sant Longowal Institute of Engg. and Tech. Longowal and another
...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
*****
Present: r. R.K. Malik, Senior Advocate with
M
Mr. Digvijay Singh, Advocate
for the petitioner.
Mr. Arvind Moudgil, Sr. Panel Counsel for respondent-UOI.
Mr. Karan Singh Sandhu, Advocate for respondent Nos.1 and 2.
*****
AMAN CHAUDHARY, J. (ORAL)
1. Prayer made in the present petition isforquashingoforderdated
29.09.2015,wherebythepromotiongrantedtothepetitionerasprofessorunder
career advancement schemew.e.f.26.03.1999waswithdrawn,sowastheorder
regarding sabbatical leave and recovery was ordered to be effected of the
amount that was found tobepaidinexcess,whichthisCourtvideorderdated
14.10.2015 had stayed.
2. LearnedSeniorcounselrestrictshisprayeronlytotherecoveryof
the amount on account of the fact that this benefit has beengrantedtohimin
the year 2005 and it was after a decade that the impugned order came to be
passed and the petitionerhasevenretiredbynow,forwhichrelianceisplaced
onthejudgmentoftheHon'bleSupremeCourtinThomasDanielvs.Stateof
Kerala1 the relevant paras thereof read thus:
1
2022 SCC OnLine SC 536
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" 8. We have carefully considered the submission made at the Bar by
learned counsel for the parties andperusedthematerialsplacedonthe
record.
9. This Court in a catena of decisions has consistently held that ifthe
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/allowanceoronthebasisofaparticularinterpretationofrule/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 providerelieftotheemployees
from the hardship that will be caused if the recovery 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
correctedwithinashorttimeofwrongpayment,thematterbeinginthe
realm of judicial discretion, the courts may on the facts and
circumstances of anyparticularcaseorderforrecoveryofamountpaid
in excess.
10. In Sahib Ram v. State of Haryana and Others, 1995 Supp (1)
SCC 18 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
educationalqualifications.Underthecircumstancestheappellant
would not be entitled to the relaxation. The Principal erred in
granting him the relaxation. Since the date of relaxation, the
appellanthadbeenpaidhissalaryontherevisedscale.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 constructionmadebythePrincipalforwhich
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
wouldnotapplytothescalesprescribedbytheUniversityGrants
Commission. The appeal is allowed partly without anyorderas
to costs."
xx xx xx
12. In Syed Abdul Qadir and Others v. State of Bihar and Others
(2009) 3 SCC 475 excess payment was sought to be recovered which
was made to the appellantsteachers on account of mistake and wrong
interpretation of prevailing Bihar Nationalised Secondary School
(ServiceConditions)Rules,1983.Theappellantsthereincontendedthat
even if it were to be held that the appellants were not entitled to the
benefitofadditionalincrementonpromotion,theexcessamountshould
not be recovered from them, it having been paid without any
misrepresentation or fraud on their part. The Court held that the
appellantscannotbeheldresponsibleinsuchasituationandrecoveryof
the excess payment should not be ordered, especially when the
employee has subsequently retired. The court observed that ingeneral
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:
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" 59. Undoubtedly, the excess amount that has been paid to the
appellant teachers was not because of any misrepresentation or
fraudontheirpartandtheappellantsalsohadnoknowledgethat
theamountthatwasbeingpaidtothemwasmorethanwhatthey
wereentitledto.Itwouldnotbeoutofplacetomentionherethat
the Finance Department had, in its counter-affidavit, admitted
thatitwasabonafidemistakeontheirpart.Theexcesspayment
madewastheresultofwronginterpretationoftheRulethatwas
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
beneficiarieshaveeitherretiredorareonthevergeofit.Keeping
in view the peculiar factsandcircumstancesofthecaseathand
andtoavoidanyhardshiptotheappellantteachers,weareofthe
viewthatnorecoveryoftheamountthathasbeenpaidinexcess
to the appellant teachers should be made."
13. In State of Punjab and Others v. Rafiq Masih (WhiteWasher)
andOthers(2015)4SCC334whereinthiscourtexaminedthevalidity
of an order passed by theStatetorecoverthemonetarygainswrongly
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 ofhardshipcausedtoanemployee,if
recoveryisdirectedtoreimbursetheemployeranddisallowedthesame,
exempting the beneficiary employees from such recovery. It was held
thus:
"8. As between two parties, if a determination is rendered in
favour of theparty,whichistheweakerofthetwo,withoutany
seriousdetrimenttotheother(whichistrulyawelfareState),the
issue resolved would be in consonance with the concept of
justice, which is assured to the citizens of India, even in the
PreambleoftheConstitutionofIndia.Therighttorecoverbeing
pursued by the employer, will have to be compared, with the
effectoftherecoveryontheemployeeconcerned.Iftheeffectof
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.
xxx xxx xxx
18.Itisnotpossibletopostulateallsituationsofhardshipwhich
would govern employees on the issue of recovery, where
paymentshavemistakenlybeenmadebytheemployer,inexcess
of their entitlement. Be that as it may, based on the decisions
referredtohereinabove,wemay,asareadyreference,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) Recoveryfromtheretiredemployees,ortheemployeeswho
are due to retire within one year, of the order of recovery.
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CWP-22022-2015 4
( iii)Recoveryfromtheemployees,whentheexcesspaymenthas
been made for a period inexcessoffiveyears,beforetheorder
of recovery is issued.
(iv) Recovery in cases where an employeehaswrongfullybeen
required to discharge duties of a higher post,andhasbeenpaid
accordingly,eventhoughheshouldhaverightfullybeenrequired
to work against an inferior post.
(v) In any other case, where the courtarrivesattheconclusion,
thatrecoveryifmadefromtheemployee,wouldbeiniquitousor
harsh or arbitrary to such an extent, as would far outweigh the
equitable balance of the employer's right to recover."
14.Comingtothefactsofthepresentcase,itisnotcontendedbeforeus
that on account of the misrepresentation or fraud played by the
appellant,theexcessamountshavebeenpaid.Theappellanthasretired
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 anattemptto
recover the said incrementsafterpassageoftenyearsofhisretirement
is unjustified.
16. In the result, the appeal succeeds and is accordingly allowed. The
JudgmentandorderoftheDivisionBenchdated02.03.2009andalsoof
thelearnedSingleJudgeoftheHighCourtdated05.01.2006impugned
herein, and the order dated 26.06.2000 passed bythePublicRedressal
ComplaintCelloftheChiefMinisterofKeralaandtherecoveryNotice
dated 09.10.1997 are hereby set aside. There shall be no order as to
costs."
3. Learned counsel for the respondents despite their best efforts are
unabletocontrovertthefactualpositionanddrawoutanydistinctiveaspectsin
the aforementioned judgment or cite any contrary law.
4. Inviewoftheabove,thepresentpetitionisdisposedofintermsof
Thomas Daniel(supra).
(AMAN CHAUDHARY)
JUDGE
1 9.11.2024
Hemant
hether speaking/reasoned
W : es / No
Y
Whether reportable : Yes / No
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