The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 99 of 2021 --------- Dr. Yamuna Prasad ... … Petitioner Versus 1. The State of Jharkhand 2. The Principal Secretary, Department of Human Resource Development, now known as Higher Technical Education & Skill Development Department, Govt. of Jharkhand, Office at Project Building, P.O. & P.S.- Dhurwa, District- Ranchi 3. The Director, Higher Education, Human Resources Development Department, now known as Higher Technical Education & Skill Development Department, Govt. of Jharkhand, Office at Project Building, P.O. & P.S.- Dhurwa, District- Ranchi 4. The Registrar, Vinoba Bhave University, Office at Hazaribagh, P.O., P.S. & District- Hazaribagh 5. The KUL Sachiva, Vinoba Bhave University, Office at Hazaribagh, P.O., P.S. & District- Hazaribagh ... … Respondents With W.P.(S) No. 239 of 2021 --------- Dr. Arun Kumar ... … Petitioner Versus 1. The State of Jharkhand 2. The Principal Secretary, Department of Human Resource Development, now known as Higher Technical Education & Skill Development Department, Govt. of Jharkhand, Office at Project Building, P.O. & P.S.- Dhurwa, District- Ranchi 3. The Director, Higher Education, Human Resources Development Department, now known as Higher Technical Education & Skill Development Department, Govt. of Jharkhand, Office at Project Building, P.O. & P.S.- Dhurwa, District- Ranchi 4. The Registrar, Vinoba Bhave University, Office at Hazaribagh, P.O., P.S. & District- Hazaribagh 5. The KUL Sachiva, Vinoba Bhave University, Office at Hazaribagh, P.O., P.S. & District- Hazaribagh ... … Respondents ---------
Legal Reasoning
CORAM : HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY For the Petitioners --------- : Mr. Saurav Arun, Advocate Ms. Rinki Kumar, Advocate Ms. Sharon Kerkrtta, Advocate For the Resp.-State : Mr. Sarabil Ahmad, AC to SC(Mines)-I For the VBU : Mr. Mithilesh Singh, Advocate --------- 04/29.03.2023 Heard Mr. Saurav Arun, learned counsel for the petitioners in both the cases, Mr. Sarabil Ahmad, learned AC -2- to SC(Mines)-I, for the respondent-State and Mr. Mithilesh Singh, learned counsel appearing for the respondent-Vinoba Bhave University. Since a common question of law is involved in both
Decision
these writ applications, the same are being disposed of by this common order. The petitioners are aggrieved by the order dated 25.11.2020 as contained in Ref. No. Pen/R/2250/2020 issued under the signature of respondent no. 5, whereby and whereunder the petitioners have been separately communicated that excess payment to the tune of Rs. 2,83,114.00/- (Rupees Two Lakhs Eighty Three Thousand One Hundred Fourteen only) has been made to him due to wrong fixation of pension in the sixth pay revision and hence recovery of the aforesaid amount is required so far as the petitioner in W.P.(S) No. 99 of 2021 is concerned and, as regards the petitioner in W.P.(S) No. 239 of 2021 is concerned, he has been asked to refund an amount of Rs. 2,95,698.00/- (Rupees Two Lakhs Ninety Five Thousand Six Hundred Ninety Eight only) vide Ref. No. VBU/Pen/R/2240/2020, which according to the concerned respondents was on account of wrong fixation of pension in the sixth pay revision. The petitioner in W.P.(S) No. 99 of 2021 was appointed as a Lecturer in Department of English in G.L.A. College, Daltonganj on 04.08.1971 and superannuated as a Professor on 31.10.2008. So far as the petitioner in W.P.(S) No. 239 of 2021 is concerned, he was appointed in the post of Lecturer in the Department of Mathematics in P.K. Roy Memorial College, Dhanbad on 08.02.1972 and had superannuated on 30.09.2009 as University Professor and Head of Department of Mathematics, Vinoba Bhave University, Hazaribagh. On retirement the pension of the petitioners were fixed under the sixth pay revision. Both the petitioners were separately intimated by the University vide -3- separate letters dated 25.11.2020 that due to wrong fixation in the revised scale of sixth pay revision excess payment to the tune of Rs. 2,83,114.00/- (Rupees Two Lakhs Eighty Three Thousand One Hundred Fourteen only) and Rs. 2,95,698.00/- (Rupees Two Lakhs Ninety Five Thousand Six Hundred Ninety Eight only) are to be recovered on monthly installments of Rs. 20,000/- and Rs. 25,000/- respectively from the pension of the petitioners. It has been submitted by Mr. Saurav Arun, learned counsel for the petitioners that both the petitioners have retired a decade back and without any notice the petitioners all of a sudden were intimated about the order dated 25.11.2020 regarding excess payment made to them on account of wrong fixation of the pay scale. It has been submitted that the counter affidavit of the respondent-Vinoba Bhave University primarily concentrates itself on an undertaking given by the petitioners that any amount paid in excess shall be refunded by them which is contrary to Section 23 of the Contract Act. In such context, he has referred to the judgment of the Hon’ble Supreme Court in the case of “Secretary-cum-Chief Engineer Chandigarh versus Hari Om Sharma & Ors.” reported in 1998 (4) Supreme 420. Learned counsel for the petitioners has also relied upon the case of “State of Punjab and Others versus Rafiq Masih (White Washer) and Others” reported in (2015) 4 SCC 334, while submitting that the recovery of the purported excess amount from the petitioners is impermissible in view of the law laid down in the said case as the excess payment was made to the petitioners for more than a decade before the order of recovery was issued. Mr. Mithilesh Singh, learned counsel appearing for the respondent-Vinoba Bhave University has primarily submitted that at the time of superannuation an undertaking was given by each of the petitioners wherein it was specifically undertaken to refund any portion, full amount of -4- pension and gratuity if paid in excess due to any error in calculation. Learned counsel submits that the case of “State of Punjab and Others versus Rafiq Masih (White Washer) and Others” (Supra) has been considered in the case of “High Court of Punjab and Haryana and Others versus Jagdev Singh” reported in (2016) 14 SCC 267. It has been submitted that once an undertaking is given by an employee with respect to refund of the excess amount in case of any calculation error he is bound to return the said amount. It has further been submitted that both the petitioners as noted have given their respective undertakings and in such circumstances the parameters as mentioned in the case of “State of Punjab and Others versus Rafiq Masih (White Washer) and Others” (Supra) shall not be applicable so far as the case of the present petitioners are concerned. What has been primarily delved upon by the learned counsel for the respective parties is as to whether the act of the respondent-Vinoba Bhave University in seeking recovery the excess payment made to the petitioners on account of wrong fixation of pension was permissible in law or not. In the case of “State of Punjab and Others versus Rafiq Masih (White Washer) and Others” (Supra), it was held as follows: “18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to reference, hereinabove, we may, as a summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: ready (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in -5- 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 employer’s right to recover.” the equitable balance of In the said case at Clause (iii) it has been mentioned that 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 is also one of the criteria laid down preventing the authorities to recover the excess amount. The case of “State of Punjab and Others versus Rafiq Masih (White Washer) and Others” has been considered in the case of “High Court of Punjab and Haryana and Others versus Jagdev Singh” (Supra), wherein it has been held as follows: “9. The submission of the respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the State. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the respondent was clearly on notice of the fact that a future refixation or revision may warrant an adjustment of the excess payment, if any, made. 10. In 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: (SCC pp. 334-35) (i) Recovery from employees belonging to -6- from Class III and Class IV service (or Group C and Group 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 the employee, would be iniquitous or harsh or arbitrary to such an extent, as would 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. 12. For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years.” far outweigh In the said case the primary consideration was with respect to Clause (ii) of paragraph 12 of the case of “State of Punjab and Others versus Rafiq Masih (White Washer) and Others” and since an undertaking was given by the said petitioner it was held that he was bound by the undertaking. So far as the present petitioners are concerned, admittedly they had superannuated from service on 31.10.2008 and 30.09.2009 and the order for recovery of the -7- excess amount paid to them on account of wrong fixation of pay scale is dated 25.11.2020 which indicates that after a decade had passed the respondent-Vinoba Bhave University had taken notice of the wrong fixation of pay granted to the respective petitioners and have come up with the impugned order dated 25.11.2020. It is no doubt true that both the petitioners had given undertakings which have also been brought on record in the counter affidavit which reveals that they undertook to refund any portion, full amount of pension and gratuity paid in excess due to any error in calculation which has been considered in the case of “High Court of Punjab and Haryana and Others versus Jagdev Singh” (Supra), only with respect to Clause (ii) of paragraph 12 of the case of “State of Punjab and Others versus Rafiq Masih (White Washer) and Others”. The respondent-Vinoba Bhave University for more than a decade had not taken any steps for recovery of the excess amount being paid to the petitioners and they also cannot be held to be not liable for such excess amount having been paid to the petitioners. In fact, it was the duty and responsibility of the concerned officials of the University to have taken immediate steps and instead their inaction has virtually perpetuated the excess amount being paid to the petitioners. As has been held in the case of “State of Punjab and Others versus Rafiq Masih (White Washer) and Others” the 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 is impermissible in law. Though the petitioners have given an undertaking but at the same time laxity on the part of the University officials have created a situation in which the petitioners are being forced to make payment of the purported excess amount after more than a decade of their superannuation. In such circumstances, therefore, the impugned order dated 25.11.2020 as contained in Ref. No. Pen/ R/ 2250/2020 in W.P.(S) No. 99 of 2021 and the order dated -8- 25.11.2020 as contained in Ref. No. VBU/Pen/R/2240/2020 so far as the petitioner in W.P.(S) No. 239 of 2021 is concerned are hereby quashed and set aside. Both these writ applications are allowed. Alok/- (Rongon Mukhopadhyay, J.)