Harish Chandra Reang vs State Of Tripura And Ors

By means of filing the present petition, the petitioner has challenged the directions issued by the State-respondents for the recovery of excess payment towards salary vide Show Cause Notice No. F.1(2011)-DEE/ESTT/2016(L)/3527(4), dated 10.01.2017, whereby the Director of Elementary Education (Respondent No.2) further instructed the HO & DDO of Chailengta Page 2 of 14 H.S. School, Dhalai District to reconstruct and update the service book of the petitioner and also arrange for immediate recovery of the entire amount of overdrawn arrear pay and allowances from his salary in suitable installments. In pursuance of the Show Cause Notice dated 10.01.2017 the HO & DDO, Chailengta Class-XII School vide Memo dated 15th March, 2017 instructed the petitioner to repay the overdrawn amount of pay and allowances of Rs.8,59,528/- for the period from 25.03.2005 to 27.07.2008 with a direction to the said DDO to recover the said overdrawn amount in installments at Rs.10,000/- only per month starting from the salary of March,2017 payable in April,2017.

Brief facts are as under:

The petitioner was appointed as Kok-borak Teacher vide offer of appointment (Common) No.F.1(1-13)-DSE/92 dated 01.01.1993. The petitioner accordingly joined in his respective place of posting at Dhuma Charra High School, Primary Section under the respondent No.3. Thereafter, the petitioner continued his service in the aforesaid place of posting up to 23.03.1995. The respondent No.2 by issuing a Memorandum dated 24.03.1995 directed the petitioner not to attend the School on the ground that his offer of appointment does not contain any place of posting and since then the petitioner was restrained from performing his duties. Challenging the said order dated 24.03.1995, the petitioner had filed a writ petition before the then Gauhati High Court, Agartala Bench, Agartala, being WP(C) No.174/2008. As per direction of the High Court the petitioner was re-instated in his original place of posting and all arrears pay and allowances were paid to the petitioner in pursuance of Memo dated 25.07.2008. It is pertinent to mention that the petitioner re-joined to the service as Kok-borok teacher on 28.07.2008.

It is the case of the petitioner that after such reinstatement in service, the respondents have been paying his salary at the pay scale prescribed for Kok-borok Teachers. The petitioner also has been discharging his duties most sincerely and diligently. All on a sudden, the petitioner had received a Show Cause Notice dated 10th January, 2017 issued by the respondent No.2 instructing the HO & DDO of Chailengta H.S. School, Dhalai District to reconstruct and update the service book of the petitioner and also arrange for immediate recovery of the entire amount of overdrawn arrear pay and allowances from his salary in suitable installments.

One Jayanta Debbarma, a Kok-borok Teacher, being similarly situated as that of the petitioner approached this High Court by filing a writ petition bearing No. WP(C) 7/2009 [titled as Jayanta Debbarma Vr. The State of Tripura & Ors.] and it was disposed of vide judgment and order dated 07.09.2015 with the following observation:

"[18] As it appears from the counter of the State respondents that the appointment letter is not a forged one and even on inquiry, by the Vigilance Authority in its report specifically stated that 22 numbers of Kok Borok Teacher in-question for tempering the place of posting in their offer of appointment according to their choice and joining their respective place of posting do not appear to be established meaning thereby that the petitioner did not forge the offer of appointment and when some other persons like the petitioner have already been allowed to join and discharged their duties, it is not clear why the present petitioner should be deprived.

xxxx xxxx

[20] Respondents are directed to inquire the grievances of the petitioner and if it is found that the petitioner is also similarly situated like Harish Chandra Reang, then he should be allowed to join to his original place of posting and discharge his duties. The entire exercise shall be completed after examination of the matter within a period of 4 weeks ...."

On the aforesaid background I heard Mr. D.C.Roy, learned counsel appearing for the petitioner. Also heard Mr. M. Debbarma, learned Addl. G.A. appearing for the State-respondents.

Mr. Debbarma, learned Addl. G.A. defending the State action has relied on the background of the case of Jayanta Debbarma (supra) and laid much emphasis on one of the directions of the Court which reads as under:

"[19] However, as the petitioner did not discharge his duties after dis-continuation vide memorandum dated 24.03.1995, it would not be proper for this Court to allow him the back salaries particularly when he filed his writ petition after 14 years."

Mr. Debbarma, learned Addl. G.A. has candidly submitted that the Memo dated 15.03.2017 asking the petitioner to refund the overdrawn amount was issued in view of the direction made by this Court in the case of Jayanta Debbarma (supra) to the effect that he would not be entitled for back salaries as quoted above.

On the other hand, Mr. Roy, learned counsel appearing for the petitioner has submitted that the petitioner is a 'Group-C' employee and he has already utilized the entire salary for the welfare of his family and after such long years such huge amount should not be recovered from him. Mr. Roy has further submitted that the respondents are wholly liable and responsible to determine and fix the pay scale of the petitioner while he was re-instated in service. As such, the direction issued vide Memo dated 15.03.2017 for recovery as mentioned above, is liable to be quashed and set aside.

I have given my thoughtful consideration to the submissions of the learned counsel appearing for the parties to the lis.

In my opinion, the Memo dated 15.03.2017 directing recovery of alleged overdrawn amount to the tune of Rs.8,59,528/-is illegal and arbitrary. The State-respondents on their own wisdom had paid the salary to the petitioner on his reinstatement in service which the petitioner was legally entitled to draw in terms of the direction of this Court for providing all pecuniary and service benefits. The petitioner had no fault. Moreover, he has utilized the entire amount in course of his service. The observation as made by this Court in the case of Jayanta Debbarma(supra) cannot be applied against the petitioner. In the said case, the High Court declined to pay back salaries particularly for the reason that the petitioner Jayanta Debbarma filed his writ petition after lapse of 14 years.

In the case of Smt. Nanda Rani Debbarma Vrs. State of Tripura and Ors. bearing WP(C) No.1161 of 2016 and other connected cases, this Court vide judgment and order dated 15.12.2016 directed the respondents to provide benefits, both pecuniary and service as was provided to Harish Chandra Reang. From the above direction, it is clear that Harish Chandra Reang, the petitioner herein was pursuing his legitimate cause by way of filing cases before this Court. Finally, the respondents vide Memorandum dated 25.07.2008 asked the petitioner to join at his original place of posting providing all pecuniary benefits in the year 2008 and according to respondents they paid excess amount of Rs.8,59,528/-and demanded refund in the year 2017.

I have noticed that the petitioner after receipt of the Show Cause Notice dated 10.01.2017 submitted a representation dated 27.01.2017 requesting the respondents to supply his service related papers. He also highlighted his hardship in the said representation stating inter alia that "In spite of undue hardship with my family members including my wife daughter and son who were school going I had been continuing some time in half fed and unfed condition even then I did not file any case against the education department for litigation cost and undue harassment." The petitioner also drew the attention of the respondents to the effect that he was not involved in any illegal, unbecoming and unethical affairs as alleged and he has not violated any Rules.

In the case of State of Punjab v. Rafiq Masih (White Washer & Ors.), reported in (2015) 4 SCC 334, the Supreme Court has elaborately discussed the issue of recovery of monetary benefits wrongfully extended to the employees and ascertained various parameters considering the different situations and held that-- as between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other which is truly a welfare State, the issue resolved would be in inconsonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recovery being pursued by the State as employer will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the State as employer.

Referring to its judgment in Sayed Abdul Qadir V. State of Bihar, reported in (2009) 3 SCC 475, the Supreme Court held that- when the excess unauthorized payment is detected within a short period of time, it would be open for the employer to recover the same. In contrast, in case the payment being made for a long duration of time, it would be iniquitous to make any recovery and violative of the provisions of Article 14 of the Constitution of India.

The Supreme Court while deciding the case of Rafiq Masih (supra) also had taken into consideration its earlier decision in Shyam Babu Verma V. Union of India, (1994) 2 SCC 521; B.J. Akkara V. Govt. of India, (2006) 11 SCC 709 and Sayed Abdul Kader V. State of Bihar, (2009) 3 SCC 475, which are reproduced hereunder: [ SCC. pp 342,3343,344, para 14, 15, 16]

"14.In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521, wherein this Court observed as under: [SCC pp. 525-26, para 11]

"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. 1-1-1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from 1-1-1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same." (emphasis supplied)

It is apparent, that in Shyam Babu Verma's case (supra), the higher pay scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay scale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.

Examining a similar proposition, this Court in Col. B.J. Akkara v. Government of India, (supra) observed as under: (SCC pp.728-29, para 28)

"28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery." (emphasis supplied)

A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case (supra) reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e., Class-III and Class-IV - sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.

This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows: (SCC pp.491-92, para 59)

"59. Undoubtedly, the excess amount that has been paid to the appellant 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. The learned counsel appearing on behalf of the appellant 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." (emphasis supplied)

Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation."

After taking into consideration all those decisions, the Supreme Court in Rafiq Masih (supra) had summarized the following few situations, wherein recoveries were said to be impermissible and illegal (SCC p.345, para 18):

"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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(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 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 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."

In the instant case, this Court finds that the petitioner in reply to the show cause notice asking him to refund the excess amount has categorically stated that he was under serious hardship and duress. His children are studying. Further, according to me, by elapse of time, the petitioner must have spent the entire earnings for the welfare of his family, he was asked for service related papers to verify records and to confront the allegation levelled against him, but, those were not supplied to him. He has further stated that he was paid all dues in pursuance of the order of the High Court.

I have noticed that the order of the High Court to provide benefits, both pecuniary and service was just complied with by the State-respondents and all arrears were paid in the year 2008. Keeping in mind the above principles enunciated in Rafiq Mashi (supra), the action of the respondents to issue order for recovery of the said amount which according to them was paid in excess than his actual entitlement after a long period of 9 (nine) years would be iniquitous and arbitrary and contrary to the spirit enshrined under Article 14 of the Constitution of India.

Therefore, the said impugned order dated 15.03.2017, is not sustainable in law. Furthermore, the petitioner is a Group-C employee. More importantly, the respondents had paid the amount in terms of the order passed by the High Court and subsequent order passed in the case of Jayanta Debbarma(supra) where the Court rejected the plea of paying back salaries would have no consequence or application in any manner whatsoever and as such, cannot be applied considering the factual aspect of the case of the petitioner.

It is not the case here that the petitioner being an employee had furnished any factually incorrect information, on the basis of which the employer/respondents committed the mistake of paying the petitioner more than what was rightfully due to him. In the case in hand, there is no allegation of committing fraud or misrepresentation at the behest of the petitioner. In those circumstances, the case would be different. Another feature, manifests in the order passed in Jayanta Debbarma's case is that the Court did not think it proper to allow the back salaries since he filed the petition after lapse of 14 years. The principle as delineated in the case of Rafiq Masih (supra) was further reiterated by the Supreme Court in the case of High Court of Punjab and Haryana & Ors. v. Jagdev Singh, reported in (2016) 14 SCC 267.

In the circumstances, the direction for recovery of excess payment made to the petitioner out of his salary to the tune of Rs. 8,59,528/- for the period from 25.03.2005 to 27.07.2007 vide Show Cause Notice dated 10th January, 2017 and consequential Memo dated 15th March, 2017 issued by the respondents are not sustainable in law, and accordingly, quashed.

The State-respondents shall not recover any amount which was already paid to the petitioner after reinstatement and in course of his service.

With the aforesaid observation and direction, the writ petition is allowed and disposed of accordingly.