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2013 DIGILAW 1428 (PAT)

Kishori Prasad v. State of Bihar

2013-12-11

ASHWANI KUMAR SINGH, R.M.DOSHIT

body2013
ORDER This Appeal under Clause 10 of the Letters Patent has been preferred by the writ petitioner against the order dated 30th June 2011 made by the learned single Judge in C.W.J.C. No.1710 of 2011. 2. The appellant, a retired Head Clerk, has approached this Court under Article 226 of the Constitution to challenge the order of fixation of pay as on 1st November 1997 made on 3rd December 2010 and the order for recovery of Rs. 1,41,462.00, the excess payment made to the appellant. The petition was contested by the State Government. The learned single Judge has dismissed the writ petition. Therefore, this Appeal. 3. It appears that on 1st November 1997, the appellant was promoted as Head clerk. The order of pay fixation was made by the Senior Superintendent of Police, Patna on 21st February 2009. The said order was made subject to the approval by the Finance Department and the office of the Accountant General. Since the said order of pay fixation, the appellant retired from service on 31st July, 2009. While considering his case for pension and other retiral dues, the office of the Accountant General raised objection in respect of the aforesaid pay fixation made on 21st February 2009. In view of the objection raised by the office of the Accountant General, the appellant’s pay, as on 1st November 1997, was re-fixed under order dated 3rd December 2010 and the excess amount of Rs. 1,41,462.00 paid to the appellant was ordered to be recovered. It is the aforesaid order dated 3rd December 2010, which was subject matter of challenge in the writ petition. 4. The challenge is two fold. According to the Appellant, the order of pay fixation made on 21st February 2009 was approved by the District Accounts Officer on 26th April 2009. In the submission of the appellant, once the pay fixation was approved by the District Accounts Officer, the question of re-fixation of pay should not arise. Further, if at all there were any error in the order of fixation of pay, it was not on account of mis-representation made by or fraud perpetrated by the appellant. The appellant, therefore, should not be called upon to refund the excess amount; more so, when the appellant has already retired from service. Further, if at all there were any error in the order of fixation of pay, it was not on account of mis-representation made by or fraud perpetrated by the appellant. The appellant, therefore, should not be called upon to refund the excess amount; more so, when the appellant has already retired from service. The appellant has also assailed the order of recovery on the ground of violation of principle of natural justice insofar as the appellant had not been given opportunity to show cause against the intended recovery. 5. Learned advocate Mr. Neeraj Kumar has appeared for the appellant. He has assailed the order of the learned single Judge. He has strenuously urged that the pay-fixation made on 21st February 2009 was just and proper. As it is it was made long after the appellant was promoted as Head Clerk on 1st November 1997. He has also assailed the order of recovery on the ground that it has been made in violation of principle of natural justice and that the appellant had already retired from service. In support of his submissions he has relied upon the judgments of the Hon’ble Supreme Court in the matters of Col. B.J. Akkara (Retd.) Vs. Government of India and Others, { (2006) 11 SCC 709 }; of Syed Abdul Qadir and Others Vs State of Bihar and Others, { (2009) 3 SCC 475 }; and of this Court in the matter of Rama Nand Singh Vs The Bihar State Electricity Board and Others, { 2013(4) PLJR 351 }. 6. The Appeal is contested by the learned Additional Advocate General Mr. Anjani Kumar and the learned advocate Mr. Manikant Mishra. Mr. Anjani Kumar has submitted that the order of pay fixation was made subject to the approval by the Finance Department and the Office of the Accountant General. The order of re-fixation was made on account of the objection raised by the Office of the Accountant General. He has submitted that even in case the appellant were not responsible for wrong fixation of pay, if any amount had been paid in excess of his legitimate dues, the State Government is justified in recovering the said amount. In support of his submission he has relied upon the judgment of the Hon’ble Supreme Court in the matter of Chandi Prasad Uniyal and Others Vs. In support of his submission he has relied upon the judgment of the Hon’ble Supreme Court in the matter of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, {(2012) 8 SCC 117} and the judgment of the Full Bench of this Court in the matter of Ram Binod Singh Vs. The Bihar State Electricity Board and Others, { 2007(3) PLJR 398 (F.B.)}. 7. Learned advocate Mr. Manikant Mishra has appeared for the Accountant General. He too has relied upon the judgment of the Hon’ble Supreme Court in the matter of Union of India and Others Vs. Shri Bhanwar Lal Mundan, {2013(6) Supreme Today 289}. 8. It is apparent that the appellant was the Head Clerk in the office of the Senior Superintendent of Police, Patna and that the order of pay fixation was made as late as on 21st February 2009, a few months before the appellant was due to retire from service on 31st July 2009. The order was made subject to approval by the Finance Department and the Office of the Accountant General. It is not brought on the record whether or not the approval in question was ever sought for. It is evident that the Office of the Accountant General did not accept the order of pay fixation and raised objection. Pursuant to the objection raised by the Office of the Accountant General, the impugned order of re-fixation of pay and the recovery came to be made. The revised order of pay fixation was made according to the terms of the order dated 21st February 2009. The appellant, therefore, cannot have a legitimate grievance against the said order. Although no imputation is made against the appellant, the fact that the appellant was the Head Clerk and the proximity of the order to the date of retirement of the appellant from service, does rouse suspicion about his active participation. In absence of allegation of misrepresentation or fraud against the appellant, we must hold that it was an erroneous order of pay-fixation. In case of erroneous order of pay-fixation, the Hon’ble Supreme Court has held that the excess amount paid under an erroneous order or under misinterpretation of the relevant law should be recovered from the Government servant. That is the view expressed by this Court in the above referred judgment of the Full Bench in the matter of Ram Binod Singh Vs. That is the view expressed by this Court in the above referred judgment of the Full Bench in the matter of Ram Binod Singh Vs. The Bihar State Electricity Board and Others and the Hon’ble Supreme Court as late as in the matter of Shri Bhanwar Lal Mundan (supra). 9. In the matter of Col. B.J.Akkara (supra) the matter at issue was the stepping up of pension to ensure parity of pension amongst the personnel retiring from the same rank. One of the issues was the recovery of excess payments made on account of the wrong interpretation/understanding of a particular Circular. The Hon’ble Court observed, that the relief against recovery of excess payment is granted by the Courts not because of any right in the employees but in equity in exercise of judicial discretion to relieve the employees from the hardship. The Hon’ble Court, however, held that the Courts will not grant relief against the recovery if the employee had knowledge that the payment received was in excess of what was due or was wrongly made or where the error is detected and corrected within a short time. In our opinion, this judgment does not lend support to the appellant. 10. In the matter of Syed Abdul Qadir (supra) a similar question was answered by the Hon’ble Supreme Court. The Court held, “… … … The excess payment made was the result of the 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.” Considering the question of hardship to the appellant teachers, the Court restrained the Government from recovering the amount of excess payment. Nevertheless, the Court did observe, “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. Nevertheless, the Court did observe, “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.” 11. In the matter of Rama Nand Singh (supra) the recovery of the excess amount was set aside for violation of the principle of natural justice but the respondent authority was permitted to recover such amount in accordance with the principle of natural justice. 12. The matter was considered by the Full Bench of this Court in the matter of Ram Binod Singh (supra). The Bench after considering several judgments of the Hon’ble Supreme Court held, “… … … there is no legal bar in ordering for recovery from retired employees where they have received money benefits on account of mistake at the ministerial level in the matter of fixation of pay, grant of increments or time bound promotion when the conditions precedent for such promotions were clearly non est. … … …” The Bench further held, “… … … if the grant was by way of undue favour, arbitrary, malafide, ultra vires and/or void ab initio, recovery of public money should be the normal course. … … …” 13. Same is the view expressed by the Hon’ble Supreme Court in the matter of Chandi Prasad Uniyal and Others (supra). The Hon’ble Court considered several judgments including the above referred judgments in the matter of Col. B.J.Akkara and Syed Abdul Qadir, the Court held, “We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy.” “We are concerned with the excess payment of public money which is often described as “taxpayers’ money” which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.” “We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J.Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered. 14. The said view has been reiterated by the Hon’ble Supreme Court once again in the matter of Shri Bhanwar Lal Mundan, {2013(6) Supreme Today 289}. The Court held, “… … … Such fixation of pay, needless to say, was erroneous and, therefore, the authorities were within their domain to rectify the same. … … …” 15. The outcome of the aforesaid judgments is that that no employee has a right to gain monetary benefits in excess of what is legitimately due to him. If any amount is paid in excess, may be, through mistake, wrong interpretation of law, negligence etc. the amount is recoverable by the Government. … … …” 15. The outcome of the aforesaid judgments is that that no employee has a right to gain monetary benefits in excess of what is legitimately due to him. If any amount is paid in excess, may be, through mistake, wrong interpretation of law, negligence etc. the amount is recoverable by the Government. No employee has a right to retain such excess amount even though he may not be instrumental in grant of the excess amount or although he may have retired from service. The Court may, however, in its judicial discretion, restrain the recovery in case of an extreme hardship. 16. True, ordinarily no order of recovery should be made against a Government servant without giving him an opportunity to show cause against the intended recovery. The Courts have time and again deprecated and set aside the orders made in violation of principle of nature justice. 17. However in the present case, we have already held that the revised order of pay fixation was made in terms of the order dated 21st February 2009. Further, the matter has been thrashed threadbare by the learned single Judge and also by this bench. The appellant had the opportunity of hearing before the Court. We see no need to set aside the impugned order of recovery or to remand the matter to the authority below to comply with the principle of natural justice. Any such order would be an exercise in futility. 18. For the reasons aforesaid, Appeal is dismissed in limine.