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2009 DIGILAW 503 (HP)

SHYAM LAL SHARMA v. STATE OF HIMACHAL PRADESH

2009-05-26

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, J.-The petitioner was appointed as a Junior Basic Trained Teacher in the year 1966. He was promoted to the post of Head Teacher in the year 1997. He was given the benefit of FR 22(1) (a) vide Annexure A-1 dated 16.12.1997. His pay was fixed at Rs.2410/-. However, vide letter dated 29.10.2001, the respondents came to conclusion that the petitioner was not entitled to benefit of FR 22 (1) (a). The recoveries were directed to be effected from the salary of the petitioner. 2. Mr. V.D. Khidta, Advocate has strenuously argued that Annexure A-3 dated 29.10.2001 has been issued without affording reasonable opportunity of hearing to the petitioner. He then contended that the petitioner has been visited with severe civil and evil consequences. He lastly contended that his client has retired after attaining the age of superannuation during the pendency of this petition and it would be very harsh and oppressive if the recoveries are permitted to be effected from his salary. 3. Mr. R.K. Sharma, Senior Additional Advocate General has supported the issuance of Annexure A-3. According to him, as per rules, he was not entitled to get the benefit of FR 22 (1) (a). I have heard the learned counsel for the parties and have perused the pleadings carefully. 4. The petitioner has been granted the benefit of FR 22 (1) (a) vide communication dated 16.12.1997. He has neither misled nor misrepresented the authorities at the time of issuance of Annexure A-1. He has not played any fraud upon the authorities leading to issuance of Annexure A-1. His pay was fixed at Rs. 2410/-. In case the respondents wanted to correct/rectify any mistake, the same could be done by hearing the petitioner. Mr. V.D. Khidtta has vehemently argued that the petitioner has not been heard before the issuance of Annexure A-3. This position is not disputed by the learned Senior Additional Advocate General. The Court is of the firm opinion that the petitioner has been visited with severe civil and evil consequences after the issuance of Annexure A-3 as his pay stood reduced. He was required to be heard before the issuance of Annexure A-3. 5. Their Lordships of the Hon’ble Supreme Court have held in Rajesh Kumar and others versus Dy. The Court is of the firm opinion that the petitioner has been visited with severe civil and evil consequences after the issuance of Annexure A-3 as his pay stood reduced. He was required to be heard before the issuance of Annexure A-3. 5. Their Lordships of the Hon’ble Supreme Court have held in Rajesh Kumar and others versus Dy. CIT and others, 2007 (2) SCC 181 that when by reason of an action on the part of a statutory authority, civil or evil consequences ensure, principles of natural justice are required to be followed. Their Lordships have held as under: “26. Effect of civil consequences arising out of determination of lis under a statute is stated in State of Orissa v. Dr. (Miss) Binapani Dei and Ors. (1967 (2) SCR 625). It is an authority for the proposition when by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. In such an event, although no express provision is laid down in this behalf compliance of principles of natural justice would be implicit. In case of denial of principles of natural justice in a statute, the same may also be held ultra vires Article 14 of the Constitution.” 7. Their Lordships of the Hon’ble Supreme Court in Syed Abdul Qadir and others versus State of Bihar and others, (2009) 3 SCC 475 have culled out the following principles governing the circumstances in which the excess amount cannot be recovered by the employer: “55. That apart, it also appears from the record produced before us that while the Finance Department of the Government of Bihar was in favour of making the amended provisions of FR. 22-C applicable to the appellants-teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human Resource Development, Government of Bihar, wanted to apply the unamended provision to the appellants-teachers so as to make available the benefit of additional increment provided for under FR.22-C to its teachers, unaware of the fact that even under FR.22-C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post. 8. 8. This further goes on to show that the authorities in the State of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. Otherwise, there was no reason for the Finance Department to state in the counter affidavit filed before the High Court that any affidavit filed on behalf of the Education Department may be ignored as Finance Department was the competent authority. In this very affidavit, the Finance Department while admitting that the pay fixation by the Education Department was wrong, stated as under:- "...the fixation of pay under Fundamental Rule 22- C has wrongly been made as it was not in existence. Pay fixation on the basis of a nonexistent rule is a bona fide mistake." 9. 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. 10. 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 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. 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. 11. 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 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. 12. Learned counsel also submitted that prior to the interim order passed by this Court on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some installments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant- teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them.” Accordingly, in view of the discussion made hereinabove, the petition is allowed. Annexure A-3 dated 29.10.2001 is quashed and set aside. In normal circumstances, the respondents could be granted opportunity to issue fresh notice to the petitioner; however, the fact of the matter is that the petitioner has retired during the pendency of this petition. Annexure A-3 dated 29.10.2001 is quashed and set aside. In normal circumstances, the respondents could be granted opportunity to issue fresh notice to the petitioner; however, the fact of the matter is that the petitioner has retired during the pendency of this petition. In these circumstances no useful purpose will be served to keep the matter pending. The matter is closed. There will, however, be no order as to costs.