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2004 DIGILAW 12 (UTT)

Nau Singh v. State Of Uttaranchal

2004-02-17

R.TANDON

body2004
JUDGMENT Rajesh Tandon, J. 1. Heard Sri Narayan Datt, learned Counsel for the petitioner and learned Standing Counsel for the respondents. 2. By the present writ petition, the petitioner has prayed for the issue of a writ, order or direction in the nature of certiorari quashing the impugned order dated 17.5.2003 and further direction in the mature of mandamus directing the respondent not to make any recovery in pursuance of the order dated 17.5.2003. 3. Brief facts giving rise to the present writ petition are that initially the petitioner was appointed in the police department on 6.1.1970 on the post of constable, thereafter he was promoted in the year 1980 and at present he is Head Constable/Assistant Sub-Inspector at Police Station Old Tehri, Distt. Tehri Garhwal. 4. The petitioner has submitted that from time to time he was posted at various places i.e., Rampur, Bijnor and again he was transferred from district Rampur to District Shajahanpur. 5. Counsel for the petitioner has submitted that the petitioner was given the first selection grade on 1st March, 1995, the same is quoted below : 6. In Paragraph-7 of the writ petition the petitioner has stated that he was given promotion on pay-scale 5500-9000 on the post of Head Constable Civil/Assistant Sub-Inspector on 7th August, 2001. The order to that effect is quoted below : 7. The petitioner has submitted that on 17th May, 2003 the Superintendent of Police, Tehri Garhwal has passed the order of re-fixation of the salary of the petitioner on the basis of the audit report and has passed the order for recovery of Rs. 43,428/-. 8. The petitioner has challenged the recovery proceedings on the ground that the order under re-fixation dated 17th May, 2003 has been passed without affording any opportunity to the petitioner and before cancelling the pay-scale of the petitioner, the petitioner has not been given any opportunity. However, the petitioner has stated that he never misrepresented at any stage of the proceedings and vide order dated 7th August, 2001, all the employees were given the grade of 5500-9000. 9. A counter affidavit has been filed by the State of Uttaranchal wherein in Paragraph-12 it has been admitted that the petitioner was given the pay-scale of Rs. 5500-9000 from 27.3.1999. The said Paragraph-12 is quoted below : "That in reply to the contents of Para 14 of the writ petition are not admitted as stated. 9. A counter affidavit has been filed by the State of Uttaranchal wherein in Paragraph-12 it has been admitted that the petitioner was given the pay-scale of Rs. 5500-9000 from 27.3.1999. The said Paragraph-12 is quoted below : "That in reply to the contents of Para 14 of the writ petition are not admitted as stated. The fact is that the petitioner had been given the pay-scale of Rs. 5500/- from 27.3.1999. Although on 1.1.1999 the petitioner was entitled to draw the pay-scale of Rs. 4645, therefore, the respondent No. 3 has rightly passed the order dated 17.5.2003 for the recovery of the excess payment paid to the petitioner from his salary." 10. Counsel for the petitioner has referred the judgment of the Apex Court in the case of P.H. Raddy and Ors. v. N.T.R.D. and Ors., reported in 2002 (SC) SLR 359, where the Apex Court, after relying on the judgment in 1998 (8) SCC 338, has held that any employees who have obtained the higher amount on account of erroneous fixation by the authority should not be asked to re-pay the excess pay drawn. The relevant observations are quoted below : "In our view, therefore, the judgment of this Court in the Director General, ESI, represents the correct view, and consequently the order of re-fixation done by the appropriate authority, in the case in hand, does not require any interference, but the employees-appellants, who had been in receipt of a higher amount on account of erroneous fixation by the authority should not be asked too repay the excess pay drawn, and, therefore, that part of the order of the authority is set aside. The direction of the appropriate authority requiring reimbursement of the excess amount drawn is annulled." 11. In Sahib Ram v. State of Haryana and Ors., reported in 1995 Supp (1) SCC 18, the Division Bench of the Apex Court has taken the view that the pay-scale which was given to an employee concerned, although he does not possess the required qualification and since he has been paid the salary at the revised pay-scale, therefore, it will not amount to any misrepresentation by the employee concerned. The Paragraph-5 to that effect is quoted below : "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. The Paragraph-5 to that effect is quoted below : "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 Principal 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." 12. Similar view has been taken in Bindeshwari Sahai Srivastava v. The Chief Engineer, Irrigation Department, U.P. and Ors., reported in (1996) 4 UPLBEC 2634 where after relying on the aforesaid observations the Division Blench of the Apex Court (supra) as well as the judgment in B.N. Singh v. State of U.P., 1979 ALJ 1841, as well as the judgment reported in JT (1995) 1 SC 24, has observed as under: "If the salary of an employee has been fixed and paid by his employer voluntarily without there being any fraud or misrepresentation by the employee, it is not open to the employer to recover any amount of the salary already paid to the employee, even if, later on, it is found that the employee was not entitled to the salary at that rate/scale of pay unless the order fixing the salary/pay-scale is corrected by the employer shortly after it was passed. Reference in this connection may be made to the decision of Supreme Court in Sahib Ram v. The State of Haryana and Ors., JT 1995 (1) SC 24. wherein it was laid down as under : '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. wherein it was laid down as under : '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 Principal of equal pay for equal work not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.' .....A Division Bench of this Court in B.N. Singh v. State of U.P., 1979 ALJ 1841, has also laid down that if an employee has been paid excess wages voluntarily by the employer without there being any fraud or misrepresentation committed by the employee, the excess amount cannot be recovered from him. Relevant extract of the judgment is reproduced below: 'It is well settled principle that wages paid to an employee by an employer voluntarily in bona fide manner without there being any element of fraud or misrepresentation, cannot be recovered from the employee subsequently merely on the ground that some mistake of interpretation, of rules might have been committed by the employer for which the employee could not be held responsible. This view finds support from the decision of this Court in Gulab Chand v. State of U.P., Civil Misc. Writ Petition No. 1479 of 1962, decided on 19th March, 1969." 13. In 1994 (2) SCC 521, Shyam Baku Verma and Ors. v. Union of India and Ors., the Hon'ble Apex Court has held as under : "Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the commendations 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. 330-480 in terms of the commendations 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 respondent, the petitioners being in no was responsible for the same." 14. In Ram Khelawan Pathak v. State of U.P. and Ors., reported in (1998) 3 UPLBEC 1954, wherein it has been held that when employee has worked beyond the period of his retirement the residuary period should be treated as fortuitous. His Lordship has relied upon the judgment of Apex Court in S. V. Bhima Bhatta and Anr. v. State of Karnataka and Ors., reported in JT 1996 (2) SC 236. The observations in the judgment of Ram Khelawan Pathak (supra) is quoted below: "In a case where an employee has worked beyond the period of his retirement the residue period should be treated as fortuitous as has been held by Hon'ble Supreme Court in Judgment Today 1996 (2) SC 236, S.V. Bhima Bhatta and Anr. v. State of Karnataka and Ors. The matter also came to be considered in another case reported in Judgment Today 1997 (1) SC 353, Mahmood Hasan and Ors. v. State of U.P. and Ors., where the employees were reverted to a lower post as their promotion was against rule, it was held that those who will have to step down on a count of correctional process need not refund the pecuniary or other benefits enjoyed by them for they had actually worked during that period. There is yet another direct authority on the point reported in 1994 (2) SCC 621, Shyam Babu Varma and Ors. v. Union of India and Ors. There is yet another direct authority on the point reported in 1994 (2) SCC 621, Shyam Babu Varma and Ors. v. Union of India and Ors. In which the Apex Court dealing with the similar situation, ruled that since the petitioner received higher pay scale not due to fault or his own, it shall not be just and proper to recover the salary already paid to him. A Division Bench of this Court had the occasion to deal with the similar controversy in (1996) 3 UPLBEC 1840, Harish Chandra Srivastava v. State of U.P. and Ors. In that case, also, an order was passed without giving an opportunity to withhold superannuation benefits to the petitioner, who was wrongly promoted and was paid the higher salary. It was observed that the impugned order was liable to be quashed not only on the ground of want of affording reasonable opportunity of being heard to the petitioner but also on the ground that the petitioner cannot be held responsible for securing promotion on the higher scale of pay by misrepresenting the department and, therefore, payment of salary cannot be recovered." 15. Admittedly, the petitioner alogwith other employees were given the promotional pay-scale from 27.3.1999 vide order dated 7th August, 2001 and, as such, the recovery against the petitioner is wholly unfounded. 16. In view of the aforesaid facts and circumstances, the writ petition is allowed. The impugned order dated 17.5.2003 is quashed. The respondents are directed not to make any recovery in pursuance of the order dated 17.5.2003. No order as to costs.