Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.07.2014 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.(MD)No.14191 of 2010 S.Kalaiselvan .Petitioner versus 1.The Commissioner, Hindu Religious and Charitable Endowment, Nungambakkam High Road, Chennai-600 034.
2.The Executive Officer, Arulmighu Vekkaliamman Thirukoil, woraiyur, Tiruchirapalli-620 003..Respondents Writ petition under Article 226 of the Constitution of India, praying for issuance of a writ of certiorari, calling for the records relating to the impugned order dated 22.11.2010, issued in proceeding Na.Ka.No.1420/A2, issued by the second respondent and quashing the same.
!For Petitioner : Mr.Anwar Sameem for Mr.G.R.Swawmianthan.
^For Respondent-1 : Mr.S.Kumar, Addl.Govt.Pleader.
For Respondent-2 : Ms.N.Krishnaveni :ORDER
The petitioner was initially appointed, on temporary basis, as a Ticket Issuer.
Subsequently, by order dated 31.01.1982, he was permanently appointed as an Office Clerk.
But, by the same order, he was also directed to discharge the functions of Accountant also.
Accordingly, he was discharging the functions of Office Clerk as well as Accountant.
But, the fact remains that there was no sanctioned post as Accountant in the 2nd respondent temple.
During the year 1982, the post of Office Clerk and the post of Accountant in various other temples carried the same scale of pay.
The petitioner was, therefore, paid the salary which was common to both the posts.
After some time, there happened some change in the salary pattern between these two posts, under which the post of Accountant was fixed with a higher scale of pay but, however, the petitioner was paid the salary for the post of accountant, continuously.
2.While so, one Mr.S.Krishnan, took charge as the Executive Officer of the 2nd respondent temple in the year 2009.
According to him, when he verified the records, he found that the petitioner had been described as an Accountant in the service records and he was accordingly paid the salary for the said post.
He further found that there was no such post as Accountant and there was only the post like Office Clerk.
Therefore, he found that the fixation of salary to the petitioner for the post of Accountant is illegal.
In this regard, the 2nd respondent issued a show cause notice to the petitioner as to why his salary should not be revised and fixed for the post of Office Clerk and also as to why the excess salary paid to the tune of Rs.85,584/- should not be recovered from him.
The petitioner submitted his explanation on 02.11.2010.
Finally, the 2nd respondent by his proceedings in Se.Mu.Na.Ka.No.1420/A2, dated 22.11.2010, refixed the pay scale, as recommended by the VI-Pay Commission, for the post of Office Clerk and in the same order, the 2nd respondent directed the petitioner to pay the excess salary paid to him to the tune of Rs.85,584/-.
Challenging the said order, the petitioner is before this Court with this writ petition.
3.When this writ petition came-up for hearing on 06.12.2010, this Court granted an interim order of stay of the impugned order.
Today, the writ petition has come-up for final hearing.
I have heard the learned counsel appearing for the petitioner, the learned Additional Government Pleader appearing for the 1st respondent and the learned counsel appearing for the 2nd respondent and I have also perused the records, carefully.
4.In the counter filed by the 2nd respondent, it is reiterated that there is no such post as Accountant at all in the 2nd respondent temple and the excess salary paid to the petitioner for the post of Accountant is therefore liable to be recovered.
5.I have considered the above submissions.
6.As of now, there can be no dispute that there is no such post as Accountant in the 2nd respondent temple.
Therefore, the petitioner is not entitled for salary for the post of Accountant.
But, at the same time, the fact remains that in the year 1982, when he was appointed as Office Clerk, he was also directed to discharge the functions of the Accountant.
Probably, because he was discharging the functions of Accountant, he was paid the salary for the post of Accountant, after the implementation of the VI-Pay Commission recommendations.
Thus, it cannot be said that the petitioner had either misrepresented or falsely represented to get the salary for the post of Accountant.
Until 01.07.2008, since the salary for the post of Accountant in similar institutions and the salary for the post of Office Clerk were one and the same, there was no question of any excess pay.
It was only from 01.07.2008 the difference occurred and thus the petitioner was paid higher salary.
Now, the mistake has been corrected and therefore the petitioner cannot have any genuine grievance that his salary should not be fixed for the post of Office Clerk, while the appointment of the petitioner was only as Office Clerk and when there is no post of Accountant in the 2nd respondent temple.
Therefore, the revision of pay of the petitioner for the post o Office Clerk from 01.07.2008 is to be confirmed.
7.Now, turning to the recovery of the excess salary paid to the petitioner for the period between 01.07.2008 and 30.06.2010, in my considered opinion, the petitioner is not liable to pay the said amount.
In this regard, the learned counsel for the petitioner would rely upon the judgment of Hon'ble Supreme Court in Shyam Babu Verma versus Union of India, reported in (1994) 2 SCC521and Sahib Ram v.
State of Haryana, reported in 1995 Supp.
(1) SCC18 In those cases, the Hon'ble Supreme Court took the view that if salary had not been paid either on account of misrepresentation or on false representation, recovery cannot be made.
8.But, the learned Additional Government Pleader Mr.S.Kumar would submit that these two judgments had not laid down any legal proposition and therefore the same cannot be taken as precedents.
The learned Additional Government Pleader would rely upon a recent judgment of the Hon'ble Supreme Court in Chandi Prasad Uniyal v.
State of Uttarkhand, reported in (2012) 8 SCC417 wherein, the Hon'ble Supreme Court has held that the excess payment of public money is nothing short of taxpayeRs.money, which belongs neither to the officers who have effected overpayment nor to the recipient and therefore, the amount should be recovered.
9.I have considered the said submissions.
10.In Chandi Prasad Uniyal case, the Hon'ble Supreme had an occasion to refer to Shyam Babu Verma case in paragraph 11 of the Judgment.
After referring the same, in paragraph 13, the Hon'ble Supreme Court has held as follows: ?.13.We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition fo 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.?.
Therefore, according to the Hon'ble Supreme Court in Chandi Prasad Uniyal case, the judgment in Shyam Babu Verma and Sahib Ram cases have not laid down any proposition of law and therefore it cannot be said as an absolute bar for the employer to recover the excess salary paid.
But, the Hon'ble Supreme Court has also referred to a Three Judges Bench judgment in Syed Abdul Qadir versus State of Bihar, reported in (2009) 3 SCC475 wherein, in paragraph 59, the Full Bench has held as follows: ?.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.
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.?.
Referring to the same, the Hon'ble Supreme Court in Chandi Prasad Uniyal Case, in paragraph 14 has held as follows: ?.14.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, favourtism, 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.?.
11.A close reading of the said judgment of the Hon'ble Supreme Court would go to show that even in that case the Supreme Court has not laid down any proposition of law to say that excess salary paid shall be recovered in all cases invariably notwithstanding the many situations like the recipient is at the verge of retirement or he has already retired, etc.12.The Hon'ble Supreme Court has carved out certain exceptions which indicate extreme hardship to the recipient in the event of recovery is effected.
The Supreme Court has only said that not as a matter of right recovery should be effected.
In essence, the view expressed in Chandi Prasad Uniyal case is that it cannot be said, as an absolute bar, that in all cases there shall be no recovery of excess salary paid in the event there had been no misrepresentation or false representation on the part of the recipient.
Similarly, it has also not been laid down as an absolute law that in all cases blindly such recovery is to be made.
The basic principle to avoid such recovery is the likelihood of extreme hardship to the recipient.
So, on the touchstone of extreme hardship, the issue is to be decided.
This is essentially a factual fining to be recorded by the Court, going by the facts of each case.
13.Applying the above observations of the Hon'ble Supreme Court in the case cited supra, if we look into the facts of the present case, certainly there is likelihood of extreme hardship to the petitioner in the event recovery is allowed.
The petitioner is at the verge of his retirement, as he is going to retire in December, 2014.
Further, at this age, we cannot expect him to keep the excess salary with him so as to repay the same, forthwith.
In the judgment cited supra, the situation that the recipient is at the verge of retirement or he has retired is a circumstance indicating the extreme hardship.
In view the same, in the instant case also, I am of the view that in the event the respondents are allowed to recover the excess pay, it will cause extreme hardship to the petitioner, when the petitioner is going to retire shortly within few months.
In such view of the matter, the impugned order to the extent it directs recovery of excess salary paid to the is liable to be interfered with.
14.In the result, the writ petition is partly allowed in the following terMs.(i)The impugned order refixing the salary of the petitioner for the post of Office Clerk is confirmed.
(ii)The impugned order to the extent it orders for recovery of a sum of Rs.85,584/- is set aside.
(iii)The petitioner shall retire as Office Clerk, if he is not promoted in the meanwhile.
No order as to costs.
Connected M.P.(MD)No.1 of 2010 is closed.
Index : Yes 30.07.2014 Internet: Yes gb To 1.The Commissioner, Hindu Religious and Charitable Endowment, Nungambakkam High Road, Chennai-600 034.8 S.NAGAMUTHU,J gb Order in WP(MD)No.14191/2010 and MP(MD)No.1/2010 Dated:30.07.2014