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2022 DIGILAW 303 (MEG)

Badarisha Nongkhar v. State of Meghalaya

2022-11-15

H.S.THANGKHIEW

body2022
JUDGMENT 1. The erstwhile writ petitioner who expired during the pendency of the writ petition and now substituted by his wife, had approached this Court assailing the order dated 07.08.2020, whereby it was given therein, that in the preparation of the pension papers along with Service Book and other materials, it was informed that there was an over-drawal of pay amounting to Rs. 1,18,965/- (Rupees One Lakh Eighteen Thousand Nine Hundred Sixty-Five only), which was recovered from his gratuity amount. 2. The original petitioner was an employee in the office of the Assistant Registrar of Societies, Nongstoin, and retired as Upper Division Assistant (UDA) in 2019 after his promotion from the post of Lower Division Assistant (LDA). It appears his pension was withheld and after almost 4 months of his retirement, the respondents initiated the process of recovery of overdrawn pay which was recovered from his gratuity. It is the case of the original petitioner that he was qualified to receive upgradation under the Assured Career Progression Scheme (ACPS) and later under the Modified Assured Career Progressive Scheme (MACPS), which he claimed he was eligible for the said financial upgradation from the year 2017. The further case of the original writ petitioner, is that he never received any intimation about the said recovery of overdrawn payment and that further he was not heard. Being aggrieved thereby he had come before this Court. 3. Mr. B. Nongbet, learned counsel for the petitioner submits that the recovery of overdrawn pay is arbitrary and impermissible in law and has placed reliance on the case of State of Punjab & Ors. vs. Rafiq Masih (white washer) & Ors. reported in (2015) 4 SCC 334 , and has submitted that out of the 5 postulations as given in Para-18 of the said judgment, 4 are applicable to the case of the petitioner. Learned counsel has also referred to the other cases which have been referred to in Rafiq Masih (supra) to stress his points, that recovery after several years of the implementation of a certain pay scale would not be just and proper, as in the present case the excess payment since the year 2010 was discovered only after the retirement in June, 2019, which was also 9 years after the implementation of the financial upgradation. It is further submitted that the original petitioner retired from a post belonging to Group-C service in June 2019 and that the respondents, realised their mistakes allegedly, only in the year of his retirement. It is further submitted that this is also not a case where this error that occurred can be attributed to the original petitioner in any manner. 4. Learned counsel submits that as the employee had retired, recovery should have been made as per the Meghalaya Financial Rules and not under the Meghalaya Service Rules, and if any recovery was to be done at all, the process should have been initiated prior to his retirement. It is contended that the issue of wrongful/excess payment made to Government servants, has to be dealt with in accordance with Rafiq Masih (supra) and that the Government of India had also issued a Memorandum in 2016 to this effect. The learned counsel has also placed reliance in the decision in the case of Thomas Daniel vs. State of Kerala & Ors. reported in (2022) SCC Online SC 536, wherein he submits that recovery of excess pay made against an employee due to a wrong principle of calculating pay/allowance and if not occasioned by fraud or misrepresentation, after retirement is not allowed. He closes his arguments by submitting that the petitioner should not suffer because of the mistake/error committed by the respondents, and the recovery of the excess pay should be set aside and the amount refunded, apart from the re-calibration of the pension due, taking into account the financial upgradations. 5. Mr. B. Bhattacharjee, learned AAG assisted by Mr. A.H. Kharwanlang, learned GA in reply, submits that the recovery was legal and was as per the statutory provisions of law, in terms of Rule 73 of the Meghalaya Civil Services (Pension) Rules, 1983. He submits that no challenge has been made to the said Rules, which allows the respondents to recover over-drawal of pay from the pensionary benefits of the petitioner and his heirs. The said provision of law, he submits, is applicable across the board, to all the State Government employees including the original petitioner and is not limited to a certain class of employees. The said provision of law, he submits, is applicable across the board, to all the State Government employees including the original petitioner and is not limited to a certain class of employees. The learned AAG submits that the original writ petitioner, upon receiving the benefit of the second financial upgradation under the Assured Career Progression Scheme, by order dated 25.05.2014, was put to notice, that any excess amount drawn resulting from the fixation, shall be recovered from the monthly salary. The original petitioner, he submits on acceptance of this notice, has therefore given an undertaking to abide by the said condition. In this context, a reference has been made to the case of High Court of Punjab & Haryana & Ors. vs. Jagdev Singh reported in (2016) 14 SCC 267 , wherein he submits, it has been held that when in the first instance, an employee has been put on notice and furnished an undertaking, he is bound by the said undertaking. He therefore contends that the original writ petitioner having accepted the said notice, has also accepted the recovery proceedings by the respondents, and as the amount has already been recovered, there cannot be any question of any hardship being caused to the petitioner at this stage. The learned AAG has also placed reliance in the case of Chandi Prasad Uniyal & Ors. vs. State of Uttarakhand & Ors. reported in (2012) 8 SCC 417 and submits that any amount paid or received without the authority of law, can always be recovered and the same cannot be retained as a matter of right, since the same, would amount to unjust enrichment. With regard to the judgment relied upon by the petitioner, he submits that the judgment of Rafiq Masih (supra) is based on the principles of equity enshrined in Article 142 of the Constitution of India, which is supplementary in nature and is not binding. He lastly submits that original petitioner having accepted the notice of recovery, and as recovery was undertaken in accordance with Rule 73 of the Meghalaya Civil Services (Pension) Rules, 1983, no case has been made out and the writ petition is liable to be dismissed. 6. I have heard learned counsel for the parties. 7. He lastly submits that original petitioner having accepted the notice of recovery, and as recovery was undertaken in accordance with Rule 73 of the Meghalaya Civil Services (Pension) Rules, 1983, no case has been made out and the writ petition is liable to be dismissed. 6. I have heard learned counsel for the parties. 7. The only point in issue herein as can be seen, is the grievance of the original writ petitioner to the recovery from his pension, the amount said to have been overdrawn, apart from the claim for third financial upgradation. It is to be noted initially that as per the affidavit of the State respondents, the original writ petitioner's pension had been sanctioned, as also the gratuity payment order; and that the commutation of pension is under process, as also the arrears of MACPS which is also currently being processed by the respondent No. 4, with instructions for immediate payment. As can be seen from the materials on record, while calculating the pay of the petitioner as per an Office Memorandum dated 22.02.2010, the pay was fixed at Rs. 16,440/- (Rupees Sixteen Thousand Four Hundred Forty only) whereas it should have been fixed at Rs. 16,051/- (Rupees Sixteen Thousand Fifty-One only). It is also noted that the same came to light, only when the Service Book of the original writ petitioner was examined which is evidenced by the letter dated 31.10.2019 (Annexure-XII to the writ petition). 8. It is further noted that the recovery of the overdrawn pay was in terms of Rule 73 of the Meghalaya Civil Services (Pension) Rules, 1983, the relevant portion of which, is reproduced hereinbelow for easy reference: - '73. (1) It shall be the duty of every retiring government servant to clear all government dues before the date of his retirement. (2) where a retiring government servant does not clear the government dues and such dues are ascertainable- (a) An equivalent cash deposit may be taken from him; or (b) Out of the gratuity payable to him, his nominee or legal heir, and amount equal to that recoverable on account of ascertainable government dues shall be deducted. (2) where a retiring government servant does not clear the government dues and such dues are ascertainable- (a) An equivalent cash deposit may be taken from him; or (b) Out of the gratuity payable to him, his nominee or legal heir, and amount equal to that recoverable on account of ascertainable government dues shall be deducted. Explanation- The expression 'ascertainable government dues' includes of house building or convenience advance, arrears of rent and other charges pertaining to occupation of government accommodation, over-payment of pay and allowances and arrears of income-tax deductible at source under the Income Tax Act.' A perusal of the said Rule clearly indicates that the Government servant is duty bound to clear all the Government dues before the date of retirement and also provides further at Rules 73 (2) (b), that if the dues are not cleared, the same shall be recoverable from his gratuity amount. 9. Another aspect in the instant case as has been contended by the respondents, is the fact that while accepting the order dated 26.05.2014 (Annexure-IX to the writ petition), whereby the benefit of the 2nd Financial Upgradation under the Assured Career Progressive Scheme was granted to original writ petitioner, it was clearly stated therein that any excess amount drawn from the new fixation, would be recovered from his monthly salary. 10. Though, it has been strongly contended by the counsel for the petitioner that the case of the original writ petitioner will come within the proposition as given in the case of Rafiq Masih (supra) and Thomas Daniel (supra), and indeed hardship has been caused due to the recovery, coupled with the fact that the excess payment was not due to misrepresentation or fraud on the part of the employee, there are two factors that stand in the way of this Court granting the relief as prayed for. Firstly, the re-fixed scale of pay, which was allowed to the original writ petitioner had clearly provided that any excess amount drawn resulting from the fixation, such amount was to be recovered from the monthly salary. This condition was known to the original writ petitioner and is an undertaking in all respects. The Hon'ble Supreme Court in the judgment of High Court of Punjab & Haryana & Ors. This condition was known to the original writ petitioner and is an undertaking in all respects. The Hon'ble Supreme Court in the judgment of High Court of Punjab & Haryana & Ors. vs. Jagdev Singh (supra), has also held that recovery would be permissible, when the payment was made in the first instance, the employee had been put to notice that excess payment if found would be required to be refunded. Para 10 and 11 thereof which is relevant is reproduced hereinbelow: - '10. In the State of Punjab v. Rafiq Masih this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law; (i) Recovery from employees belonging to Class III and IV service (or Group C and D service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover. 11. The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.' 11. The second factor is the provision of Rule 73 of the Meghalaya Civil Services (Pension) Rules, 1983 which as observed earlier, Rule 73 (2) (b) allows for such recovery from the gratuity amount paid to the retired employee. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.' 11. The second factor is the provision of Rule 73 of the Meghalaya Civil Services (Pension) Rules, 1983 which as observed earlier, Rule 73 (2) (b) allows for such recovery from the gratuity amount paid to the retired employee. This being the stated position of law laid down and by operation of the Rules, though it may seem harsh to deny the writ petitioner the relief as claimed, the same for the reasons aforementioned, cannot be granted by this Court. 12. With regard to the claim for 3rd Financial Upgradation, it is noted that the same has already been addressed by the respondents, who have taken cognizance of the fact that the original writ petitioner is entitled for the same and an appropriate order, which is annexed at Annexure-I of the affidavit, dated 28.09.2020, has been passed. Further, it is also noted that the pension and gratuity has already been sanctioned and that the calculation of the arrears of the MACPS is being processed. In this view of the matter, no further orders are called for, except that whatever terminal benefits due such as family pension be released to the petitioner most expeditiously, if not already done so. 13. In the facts and circumstances of the case, this writ petition stands closed and is accordingly disposed of. 14. No order as to costs.