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Tripura High Court · body

2014 DIGILAW 139 (TRI)

Biswajit Sarkar v. State of Tripura

2014-04-04

U.B.SAHA

body2014
JUDGMENT U.B. Saha, J.:- By way of filing this writ petition, the petitioner has challenged the communication dated 2.9.2005 (Annexure-5 to the writ petition) of the Director of Higher Education, the respondent No. 2 herein, and the letter dated 19.12.2006 (Annexure-4 to the writ petition) of the Principal, Polytechnic Institute, Narsingarh, the respondent No. 3 herein, whereby a decision for recovery of the excess payment of salary amounting to Rs. 5,35,177/- paid to the petitioner because of granting of the higher pay scale has been ordered. Heard Mr. D. Bhattacharji, learned counsel for the petitioner as well as Mr. D.C. Nath, learned counsel appearing for the State respondents. 2. The question that arises for consideration in this writ petition is whether the overpayment of the said amount for having been given the revised AICTE pay scale of Rs. 8000-13500/- could be recovered from the petitioner with effect from the date of joining i.e. 31.03.2000 vide order dated 19.12.2006 (Annexure-4 to the writ petition), when serving as Foreman, Electronics & Telecommunication Engineering (ETCE) in the Polytechnic Institute, Tripura on ad hoc basis. 3. The petitioner was appointed as Foreman, Electronics & Telecommunication Engineering in the scale of pay of Rs. 2200-4000/-, AICTE scale (unrevised), on ad-hoc basis in the Polytechnic Institute, Narsingarh on 31.03.2000. Subsequently, the said scale was revised to the corresponding scale of Rs. 8000-13500/- and accordingly his pay was fixed and he was drawing his pay and allowances in the said revised scale. On 19.12.2006 vide Annexure-4 to the writ petition, recovery for an amount of Rs. 5,35,177/- has been sought for from the salary of the petitioner commencing from the salary of January, 2007 by 288 monthly installments, 287 installments at the equal monthly rate of Rs. 1860/- and one installment at the rate of Rs. 1357/- of having been overdrawn by the petitioner for the period from 31.03.2000 to 31.08.2005 due to payment of salary in the higher scale of pay of Rs. 8000-13500/- in place of eligible scale of pay of Rs. 2200-4000/-. 4. Against the said order, the petitioner has made a representation to the respondent No. 2 which has not been responded by the respondent authorities. Aggrieved by, the petitioner has filed this petition for setting aside the said orders. 5. 8000-13500/- in place of eligible scale of pay of Rs. 2200-4000/-. 4. Against the said order, the petitioner has made a representation to the respondent No. 2 which has not been responded by the respondent authorities. Aggrieved by, the petitioner has filed this petition for setting aside the said orders. 5. The state respondents have filed their counter-affidavit stating, inter alia, that the petitioner was holding the status of purely an ad-hoc service since his appointment to the said post subject to continuation of the Department and hence he is not entitled to get any benefits of revision of pay scale which was allowed to the regular employees. The State government has revised the pay scale of the employees appointed on regular basis only, not for ad hoc appointees. Further, the revised AICTE pay scales have been extended for the faculty of the Polytechnic Institute only. AICTE pay scale has not been extended for the workshop officers, Polytechnic Institute like the petitioner. Following the norms of scale to scale revision, revised scale of Rs. 8000-13500/- was allowed to the petitioner wrongly. 6. It is further stated by the respondents that after discontinuation for a period of more than six months on ad hoc service with effect from 1.9.2005 to 16.3.2006, the petitioner was appointed afresh to the post of Foreman in the pay scale of Rs. 7450-1300/- which he joined on 17.3.2006 and the recovery was made for the period of his ad hoc service as the petitioner was not entitled to the AICTE revised pay scale of Rs. 8000-13500/- as Foreman, Electronic and Telecommunication Engineering, Polytechnic Institute on ad hoc basis, as the granting of revised pay scale to the petitioner was not supported by any State Govt. administrative order. Hence, overpayment made to the petitioner is recoverable. Therefore, the order issued by the authority for recovery of the excess payment to the petitioner is just, proper and valid in the eye of law. It is also stated by the respondents that the Principal In-charge of the Polytechnic Institute has not started recovery for overpayment as made to the petitioner with effect from 1.1.2007, though the administrative order issued for the purpose. 7. By an order passed by this court on 2.3.2007, it was directed to the respondent authorities not to start the recovery process of the aforesaid amount which was subsequently continued by an order dated 30.05.2008. 8. 7. By an order passed by this court on 2.3.2007, it was directed to the respondent authorities not to start the recovery process of the aforesaid amount which was subsequently continued by an order dated 30.05.2008. 8. Mr. Bhattacharji, learned counsel for the petitioner submits that the petitioner was appointed as Foreman, Electronics & Telecommunication Engineering in the scale of pay of Rs. 2200-4000/-, AICTE scale (unrevised), on ad-hoc basis in the Polytechnic Institute, Narsingarh on 31.03.2000 and subsequently, the said scale was revised in the pay scale of Rs. 8000-13500/-. Accordingly, he was paid his salary. Therefore, no overpayment was effected due to wrong fixation of pay of the petitioner. He further submits that it was the respondent authorities who prescribed the pay scale of Rs. 2200-4000/- and the revised scale of Rs. 8000-13500/- for the Foreman for the petitioner even appointed on ad hoc basis. As such petitioner was receiving his salary. The petitioner had no knowledge that the pay scale prescribed for him was higher than what he was entitled to. 9. He further submits that a Govt. employee after being joined in a service delightfully accepts his salary whatever emoluments are paid to him and spend the same for upkeep of his family genuinely believing that he is entitled to it. Thereafter, any subsequent action of the respondent authorities for any recovery in the name of excess payment from the said employee after a long period cause undue hardship to him to repay the same. 10. He also submits that it is not the case of misinterpretation of any order of the Government nor was there any bona fide mistake by the respondent-authorities as the revision of pay scale is made scale to scale basis and it is the respondent authorities who decide which scale would be allowed to which employee irrespective of the case whether he is on regular basis or on ad hoc. It is not a case of error that was detected or corrected within a short time of wrong payment or the petitioner was paid the aforesaid salary without being done any work as Foreman. Therefore, considering the facts and circumstances of the case and to avoid any hardship to the petitioner, this Court may restrain the respondent authorities from recovery any amount from the petitioner. 11. Therefore, considering the facts and circumstances of the case and to avoid any hardship to the petitioner, this Court may restrain the respondent authorities from recovery any amount from the petitioner. 11. He also contends that it is not the case of the respondent authorities that the petitioner had taken a higher pay scale according to his choice at the time of his initial appointment as Foreman. The respondent authorities knowing well the pay scale of the Foreman allowed the same to the petitioner and the said pay scale was also made revised accordingly. Had the petitioner not joined the said post after his discontinuation, it would have been impossible on the part of the respondent authorities to recover any amount from the petitioner on account of excess payment. Hence recovery of any amount from the petitioner at this stage should be waived considering the case in hand as an exceptional one. 12. He finally contends that no notice as regards excess payment was issued by the respondent authorities to the petitioner. As such, without following the necessary procedure, the respondent authorities had directly charged the recovery of a huge amount against the petitioner which is contrary to the rule of principle of natural justice. Hence, it would be proper on the part of this court to set aside the impugned order. 13. Mr. Nath, learned counsel for the state respondents has submitted that there is no infirmity in the orders impugned. The Government is an impersonal body having no personal reference. It has to act through its officers to implement its policy/decisions. If any officer of it commits any wrong giving any undue financial benefits to any employee, the Govt. has the right to rectify the said mistakes as and when the same came to the knowledge and the authority is not barred from recovering the amount paid illegally to its employee. In such case, the recovery of excess payment is permissible. An employee cannot be allowed to draw public money to his lawful entitlement wrongly giving wrong clarification of any Govt. order/decision and hardship cannot be a ground to prevent the Government from recovery of the excess amount paid to an employee, he contends. In support of his aforesaid contention, he has placed reliance on V. Gangaram Vs. Regional Joint Director and ors, (1997) 6 SCC 139 as well as Chandi Prasad Uniyal and ors Vs. order/decision and hardship cannot be a ground to prevent the Government from recovery of the excess amount paid to an employee, he contends. In support of his aforesaid contention, he has placed reliance on V. Gangaram Vs. Regional Joint Director and ors, (1997) 6 SCC 139 as well as Chandi Prasad Uniyal and ors Vs. State of Uttarakhand and ors, (2012) 8 SCC 417 . He also contends that considering the hardship, the petitioner was allowed 288 easy installments to refund the excess payment. 14. As the challenge of the petitioner in the instant case is the communications no. F. 1(84-3)-DHE/Estt(G)/99(L)1551 dated 2.9.2005 (Annexure-5) and F.2(3)-PI/2006/1223-24 dated 19.12.2006 (Annexure-4), it would be proper to reproduce the relevant portion of those two documents which are as under: .. In inviting a reference to your letter No. F. (3)-PI/2004/595-96 dated 7.7.2005 on the subject cited above, I am to say that the revised AICTE pay scale of Rs. 8,000-13,500/- as allowed to Sri Biswajit Sarkar, Foreman, ETCE, Polytechnic Institute w.e.f. the date of his joining to the post (i.e. 31-3-2000) is not applicable in case of Sri Sarkar as the AICTE pay scale 1996 was not extended to the work-shop staff of polytechnic Institute. At the same time Sri Sarkar is holding the status of ad-hoc services since his appointment to the post and hence he was not eligible to get any revision of pay scale benefits, which was allowed only for regular employees. 2. In view of the above facts, I am to request you for rectification of the irregularities on the pay scale of Sri Sarkar as stated above and prepare a due drawn statement for recovery of the outstanding pay and allowances paid to him. The matter related to overdrawn and recovery thereof may also be recorded in his service Book with proper authentication... (.. "In enclosing herewith a xerox copy of letter No. F.1 (84-3)-DHE/Estt(G)/99(L) 1551 dated 22.9.2005 which will speak for itself, I would like to inform you that an amount of Rs. 5,35,177/-(Rupees five lakh thirty five thousand one hundred seventy seven) only is calculated as overdrawn amount in the shape of pay and allowances w.e.f. 31.3.2000 to 31.8.2005 due to payment of salaries in the higher scale of pay of Rs. 8000-275-13500/- in place of eligible scale of pay of Rs. 2200-75-2800-100-4000/-. It is, therefore, decided to recover the aforesaid overdrawn amount of Rs. 8000-275-13500/- in place of eligible scale of pay of Rs. 2200-75-2800-100-4000/-. It is, therefore, decided to recover the aforesaid overdrawn amount of Rs. 5, 35,177/- by 288 nos. of monthly installments. Out of which at the equal monthly rate of Rs. 1860/- for 287 nos. of installments and the last installment at the rate of Rs. 1357/- only. The recovery will be commenced w.e.f. the salary of January, 2007, payable in February, 2007... 15. This court has given its thoughtful consideration to the facts as narrated in the respective pleadings and also rival contention of the learned counsel for the parties as well as citation relied upon by them. For better appreciation of the arguments of the learned counsel of the parties, it would be proper to discuss the relevant facts and the ratio of the decision cited by them. 16. In V. Gangaram (supra), the Hon’ble Apex Court allowed the authority to recovery the excess payment even from the pension. For ready reference, it would be proper to extract the relevant paragraph of V. Gangaram which is as under: 7. On the basis thereof, the appellant is entitled to only two additional increments, namely, one increment for MA and thereafter one for M. Ed. Under these circumstances, the authorities have wrongly applied the GOMs No. 928 and GOMs No. 266 Finance and Planning dated 17.11.1986. While issuing the notice, it was confined to the question of recovery of the arrears paid to him from the year 1985, the year in which he is eligible to acquire additional qualifications for holding the post of lecturer. Thus, it could be seen that he is entitled to the revised scale of pay giving the additional increments on two qualifications, namely, MA and M. Ed. and, therefore, he is entitled to the computation of the scale of pay then applicable to him prior to the date of immediate month in which examination was conducted of the scale of pay plus two additional increments. He is not entitled to the four increments, as successively claimed. We hold that he is entitled to only two increments, as indicated above. Since the Department itself has adopted the above approach, we direct that arrears paid prior to 1985 are not to be recovered and excess amount from 1985 is liable to be recovered from the pension payable to the appellant. We hold that he is entitled to only two increments, as indicated above. Since the Department itself has adopted the above approach, we direct that arrears paid prior to 1985 are not to be recovered and excess amount from 1985 is liable to be recovered from the pension payable to the appellant. The installment should be proportionately distributed so as not to cause any undue hardship. 17. In Director General, ICAR and anr. Vs. Victor Dhkar and ors, 2007 (1) GLT 931, a Division Bench of the Gauhati High Court (in which I was a party), stated as under: ...If any employee or officer allowed some benefits to other ineligible employees/officers or workers to get such benefits due to wrong interpretation of the policy/office memorandum and/or order due to bona fide mistake, then the Government or the Council has the right to rectify the said bona fide mistake of its employee/officer as and when such wrong/mistake came to its knowledge. As a Court of equity we cannot deprive a citizen and/or an employee from his legal entitlement provided by any law/statute or any order issued by the competent authority, but at the same time we cannot also allow a person/an employee to retain public money paid to him in excess to his lawful entitlement wrongly by another public officer, giving wrong interpretation of Govt. Policy/order. Here the case in hand, it is an admitted position that the respondents applicants were not entitled to SDA as per the decision of the Apex Court and office memorandum by the Finance Department of the Government of India as well as the orders of the ICAR, they were paid the said SDA due to wrong interpretation of the order of the authority. We are of the view that the amount paid to the applicants on SDA in excess, due to wrong interpretation/clarification/mistake committed by another officer of the ICAR are recoverable, as the said amount was paid due to wrong interpretation of the office memorandum issued by the Ministry of Finance, Govt. of India and the authority of the ICAR.... 18. In Chandi Prasad Uniyal (supra), question arose before the Apex Court was that as to whether an overpayment of an amount due to wrong fixation of 5th and 6th pay scales of teachers/principals based on the 5th Pay Commission Report could be recovered from the recipients who were serving as teachers. of India and the authority of the ICAR.... 18. In Chandi Prasad Uniyal (supra), question arose before the Apex Court was that as to whether an overpayment of an amount due to wrong fixation of 5th and 6th pay scales of teachers/principals based on the 5th Pay Commission Report could be recovered from the recipients who were serving as teachers. The Division Bench of Uttarakhand High Court rejected the writ petition filed by the appellants therein and took the view that since payments were effected due to mistake committed by the District Education Officer, the same could be recovered. 19. Aggrieved by the said judgment, the appellants preferred an appeal before the Apex Court and the Apex Court taking note of the fact of that case and going through the Law Reports cited before it, noted inter alia, that "We are of the considered view, after going through the various judgments cited at the Bar, that this Court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered." 20. In the said judgment, the Apex Court also noted " 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." Finally, the Apex Court observed that " 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 such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. We fail to see why the concept of fraud or misrepresentation is being brought 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, careless, 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 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 any 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." 21. While the aforesaid view express, the Apex Court also took note of its earlier decisions in Col. B.J. Akkara (Retd.) Vs. Govt. of India, (2006) 11 SCC 709 and Syed Abdul Qadir Vs. State of Bihar, (2009) 3 SCC 475 wherein it is stated that the excess payment made due to wrong/irregular pay fixation can always be recovered. 22. Admittedly, in the instant case, the petitioner was an ad hoc appointee and he did not place any document before this Court showing that the AICTE pay scale has been extended to the employee like the petitioner who was continuing at the relevant time as an ad-hoc appointee and he was provided the benefit of revision of pay scale meant for regular employees. Not only that, the petitioner was also working in the workshop of the polytechnic institute not as a faculty of the said institute for whom revised AICTE pay scales have been extended, meaning thereby that the petitioner was paid certain amount by the respondent-authority without authority of law and the petitioner also received the said amount without any entitlement. Thus, such payment can be said an excess payment. And if any excess payment is made without any authority of law, then the same can be recovered from the recipient/payee, what in the instant case the respondent-authority is trying to do by the impugned order. Thus, such payment can be said an excess payment. And if any excess payment is made without any authority of law, then the same can be recovered from the recipient/payee, what in the instant case the respondent-authority is trying to do by the impugned order. As the recovery of the entire amount at a time would cause hardship to the petitioner, the respondent-authority has decided to recover the amount of Rs. 5,37,177.00 by 288 nos. monthly installments. Thus, it cannot be said that the authority did not take note of hardship of the petitioner. In view of the above discussion and observation, the writ petition is dismissed being devoid of merit. No order as to costs.