High Court of KeralaDivision Bench2020-09-25Disposed of

P.K. Ibrahim v Union of India & Others

Case / Petition Number:OP (CAT) No.143/2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.M. Shaffique
Gopinath P.
Judgment Date: 2020-09-25
Court Decision / Holding: OA No.181/2014 disposed of; The Court did not interfere with the Tribunal’s merits but recognized the need to consider waivers under the 2016 OM and Rafiq Masih principles. It held that excess public money can be recovered but may be waived in cases of hardship or beyond the period specified by Rafiq Masih; the petition is disposed of with a direction for authorities to examine waivers within the specified period and to refrain from recovery if the claim is beyond that period.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

P.K. Ibrahim

Respondents

Union of India
The Secretary to the Government of India, Ministry of Home Affairs
Administrator, Union Territory of Lakshadweep
Director of Education, Lakshadweep
Director of Agriculture, Lakshadweep
Director, Port and Aviation, Lakshadweep
Director of Industries, Lakshadweep
Director, Social Welfare, Lakshadweep
Director of Animal Husbandry, Lakshadweep
Director of Women and Child
Director, Health Services
Director, Art and Culture
Director, Labour and Employment
Superintending Engineer, Lakshadweep Public Works Department
Accounts Officer, Financial and Accounts Department
Executive Engineer, Electricity Department
Executive Officer, Village (Dweep) Panchayat
Assistant Engineer, Lakshadweep Public Works Department
Secretary, Ministry of Home Affairs, Central Secretariat

Legal Representation & Advocates

Counsels for Petitioners

• Sri.N. Unnikrishnan
• Sri.Paulachan Iype

Counsels for Respondents

• Mr.Sudhinkumar K.
• Sri.S.Manu

Case Synopsis & Summary

This Kerala High Court judgment concerns OP (CAT) No.143/2020, challenging OA 108/2014/OA 181/2014 of the Central Administrative Tribunal (Ernakulam) involving a Lakshadweep employee, P.K. Ibrahim, who alleged that he and other applicants were entitled to both Special Compensatory Allowance and Island Special Duty Allowance (ISDA) in addition to hard area allowances. The Tribunal had held that hard area allowance could not be drawn along with the special compensatory allowance and ordered recovery of the excess payments, allowing installment recovery with hardship considerations for retirees and full recovery for serving employees. The petition argues that the claim merited concurrent entitlements and that recovery should be in light of miscalculation errors and the central government’s circulars. The High Court, having heard the matter on 18-09-2020 and delivering judgment on 25-09-2020, declined to interfere with the Tribunal’s merits but engaged with the broader legal framework governing recovery of excess public money. Citing Chandi Prasad Uniyal and the Supreme Court’s Rafiq Masih decisions, it emphasizes that recovery of overpayments is permissible but subject to exceptions for hardship and public policy, and that departmental discretion under the 2016 Office Memorandum may allow waivers. The petition is disposed of with a direction to consider waivers within the period contemplated by Rafiq Masih, and if beyond that period, the administration may desist from recovery.

Legal Doctrines & Maxims

Unjust enrichment
Bona fide mistake

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contended that they are entitled to both Special Compensatory Allowance and Islands Special Duty Allowance (ISDA) simultaneously along with Islands Special Duty Allowance (ISDA) and related allowances. They argued the overpayment was due to clerical/administrative error and urged waivers under statutory OM provisions with departmental approval, citing Rafiq Masih (White Washer)'s case and Chandi Prasad Uniyal to justify relief in hardship circumstances. They challenged the Tribunal’s interpretation that ISDA could not be drawn with the Special Compensatory Allowance and urged that the recovery be moderated in light of public interest and the hardship of retired employees.

Contentions of Respondents

The respondents argued that excess payments were rightly made and recoverable; the Tribunal’s conclusion that excess payment could be recovered was correct. They relied on government circulars and Office Memoranda to justify recovery and argued that concurrent entitlements cannot override the established rules. They requested adherence to the Tribunal’s order on merits and limited interference with waivers only as permitted by Rafiq Masih and the 2016 OM.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
State of Punjab and Others v. Rafiq Masih (White Washer) and Others	2015 (4) SCC 334	Positive	Cited for the principle that waivers can be considered in recovery of excess payments and that public funds may warrant leniency under hardship conditions.
Chandi Prasad Uniyal v. State of Uttarakhand	2012 (8) SCC 417	Positive	Cited for the proposition that recovery of excess public money does not require misrepresentation or fraud; emphasizes the broader public interest and the potential for exceptions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** ## **OP (CAT).No.143 OF 2020** **AGAINST THE ORDER IN OA 108/2014 DATED 02-06-2017 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/APPLICANT NO.124 IN OA:** **P.K. IBRAHIM AGED 53 YEARS,S/O. HAMZA,** **WORKING AS TYPEWRITING INSTRUCTOR, VILLAGE (DWEEP), PANCHAYAT, UNION TERRITORY OF LAKSHADWEEP, CHETLAT 682 554, NOW AT KADAMATH AND PRESENTLY RESIDING AT KADMATH ISLAND, LAKSHADWEEP 682 556.** **BY ADVS. SRI.N.UNNIKRISHNAN SRI.PAULACHAN IYPE** ## **RESPONDENTS/RESPONDENTS IN OA:** - **1 UNION OF INDIA** - **REP. BY THE SECRETARY T THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF EXPENDITURE, NORTH BLOCK, NEW DELHI 10 001.** - **2 THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI 110 001.** - **3 THE ADMINISTRATOR UNION TERRITORY OF LAKSHADWEEP , KAVARATTI 682 555.** OP(CAT) No.143/2020 -:2:- - **4 THE DIRECTOR OF EDUCATION, UNION TERRITORY OF LAKSHADWEEP , KAVARATTI 682 555.** - **5 THE DIRECTOR OF AGRICULTURE, AGRICULTURAL DEPARTMENT, UNION TERRITORY OF LAKSHADWEEP , KAVARATTI 682 555.** - **6 THE DIRECTOR, PORT AND AVIATION, UNION TERRITORY OF LAKSHADWEEP , KAVARATTI 682 555.** - **7 THE DIRECTOR OF INDUSTRIES, UNION TERRITORY OF LAKSHADWEEP , KAVARATTI 682 555.** - **8 THE DIRECTOR, SOCIAL WELFARE, UNION TERRITORY OF LAKSHADWEEP , KAVARATTI 682 555.** - **9 THE DIRECTOR OF ANIMAL HUSBANDARY,UNION TERRITORY OF LAKSHADWEEP , KAVARATTI 682 555. UNION TERRITORY OF LAKSHADWEEP , KAVARATTI 682 555.** - **10 THE DIRECTOR OF WOMAN AND CHILD., UNION TERRITORY OF LAKSHADWEEP , KAVARATTI 682 555.** - **11 THE DIRECTOR, HEALTH SERVICES, UNION TERRITORY OF LAKSHADWEEP , KAVARATTI 682 555.** - **12 THE DIRECTOR, ART AND CULTURE, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI 682 555.** OP(CAT) No.143/2020 -:3:- - **13 THE DIRECTOR , LABOUR AND EMPLOYMENT, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI 682 555.** - **14 THE SUPERINTENDING ENGINEER, LAKSHADWEEP PUBLIC WORKS DEPARTMENT, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI 682 555.** - **15 THE ACCOUNTS OFFICER, FINANCIAL AND ACCOUNTS DEPARTMENT, UNION TERRITORY OF LAKSHADWEEP , KAVARATTI 682 555.** - **16 THE EXECUTIVE ENGINEER, ELECTRICITY DEPARTMENT, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI 682 555.** - **17 THE EXECUTIVE OFFICER, VILLAGE (DWEEP) PANCHAYATH, UNION TERRITORY OF LAKSHADWEEP, CHETLAT 682 554.** - **18 THE ASSISTANT ENGINEER, LAKSHADWEEP PUBLIC WORKS DEPARTMENT, SUB DIVISION, UNION TERRITORY OF LAKSHADWEEP, KALPENI 680 557.** - **19 THE SECRETARY,** - **MINISTRY OF HOME AFFAIRS, CENTRAL SECRETARIAT, NORTH BLOCK, NEW DELHI 110 001.** **R1-2, R19 BY ADV. MR.SUDHINKUMAR K., CGC SRI.S.MANU, SCGC** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 18-09-2020, THE COURT ON 25-09-2020 DELIVERED THE FOLLOWING:** OP(CAT) No.143/2020 -:4:- ## **J U D G M E N T** Dated this the 25[th ] day of September, 2020 ## _**Shaffique, J.**_ OA No.181/2014 has been filed by 124 applicants and it was decided as early as on 2/6/2017. The petitioner who is the 124[th] applicant submits that the file came to be misplaced in the Advocate's office and therefore the Original Petition could not be filed within a reasonable time. Under normal circumstances, this case ought to be disposed of on the ground of delay and laches. But having regard to the fact that petitioner is a person who comes from Lakshadweep Islands and he contends that he is working as a Class C employee, it is only appropriate to consider the claim on merits. 2. The Original Application came to be filed _inter alia_ contending that though special compensatory allowance and hard area allowances were extended to the applicants as per the recommendation of the Central Pay Commission, on the ground that an error had been committed and there was an over OP(CAT) No.143/2020 -:5:- payment, there was a demand for refund of the amounts in installments. The Tribunal having considered the merits of the contentions observed that hard area allowance cannot be drawn in addition to special compensatory allowance and therefore, there was justification on the part of the administration in directing that the excess amount paid should be recovered back from the employees concerned. The applicants sought a declaration that they were entitled to both these allowances simultaneously along with Islands Special Duty Allowance (ISDA). The said claim was denied by the Tribunal. The Tribunal also made reference to its own earlier view in the matter. It was also found that the recovery of the excess amount cannot be resisted. But taking into account the hardship faced by retired employees, it was held that in respect of those persons, ends of justice will be met, if 1/3[rd] of the excess allowance drawn alone is recovered from retired employees and the entire excess amount drawn be recovered from serving persons but it should be in installments. 3. After hearing the learned counsel appearing for the petitioner and the learned Central Government standing counsel appearing for the Lakshadweep administration, we do not think OP(CAT) No.143/2020 -:6:- that this is a fit case in which we should interfere in the decision taken by the Tribunal as far as the merits of the contentions are concerned. The Tribunal has considered the respective Government Circulars and had arrived at the conclusion that there was excess payment and when excess amount had been paid, necessarily the Government is entitled to seek a refund of the same. 4. Learned counsel for the petitioner however placed reliance on office memorandum dated 2/3/2016 issued by the Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training by which after referring to the Apex Court judgment in _**State of Punjab and Others v. Rafiq Masih (White Washer) and Others**_ [(2015) 4 SCC 334], it was observed that wherever waiver of recovery is considered, the same may be allowed with the express approval of the department of expenditure in terms of OM No.18/26/2011Estt(Pay-I) dated 6/2/2014. In _**Chandi Prasad Uniyal v. State of Uttarakhand**_ [(2012) 8 SCC 417], Apex Court held at paragraphs 13 and 14 as under:- _“13. We are not convinced that this Court in various_ OP(CAT) No.143/2020 ## -:7:- _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._ _**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, 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 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”_ ## Of course in _**Rafiq Masih (White Washer)'s case**_ (supra), OP(CAT) No.143/2020 -:8:- another 3 Judge bench after referring to _**Chandi Prasad Uniyal's case**_ (supra) had laid down certain principles. Apparently it is for the concerned authority to verify whether the benefit of _**Rafiq Masih (White Washer)'s case**_ (supra) has to be extended to the petitioner in this case especially in the light of the office memorandum dated 2[nd] March 2016. If the claim for refund is beyond the period specified in _**Rafiq Masih (White Washer)'s**_ case (supra), the administration may desist from recovering any amount from the petitioner. With the aforesaid observation, the Original petition is disposed of. ## **Sd/-** ## **A.M.SHAFFIQUE** Rp **JUDGE Sd/GOPINATH P. JUDGE** -:9:- OP(CAT) No.143/2020 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF MEMORANDUM OF ORIGINAL APPLICATION NO. 108/2014 WITH ANNEXURES. ANNEXURE A6 A TRUE COPY OF CIRCULAR F.NO. 20/5/2009-F&A (PART) /922 DATED 28.02.2014. ANNEXURE A7 A TRUE COPY OF LETTER NO. 12/1/2008E.II (B) DATED 13.02.2014. ANNEXURE A8 A TRUE COPY OF OFFICE MEMORANDUM. F. NO. 1/1/2014. FIN/3258 DATED 19.09.2014. ANNEXURE A1 A TRUE COPY OF OFFICE MEMORANDUM NO.3/1/98-E.11 (B) DATED 20.07.1998. ANNEXURE A2 A TRUE COPY OF MEMORANDUM NO. 12 (4)/2008 E-11 (B) DATED 29.08.2008. ANNEXURE A3 A TRUE COPY OF OFFICE MEMORANDUM NO.12 (4)/2008-E.11 (B) DATED 09.11.2011. ANNEXURE A4 A TRUE COPY OF OFFICE MEMORANDUM NO.3 (1)/2008 E.11 (B) DATED 29.08.2008 GRANTING SPECIAL COMPENSATORY (REMOTE LOCALITY) ALLOWANCE. ANNEXURE A5 A TRUE COPY OF ORDER DATED 05.02.2013 IN O.A. NO. 4/2013. ANNEXURE A9 A TRUE COPY OF REPRESENTATION DATED 23.03.2014. ANNEXURE A10 A TRUE COPY OF ORDER DATED 24.10.2014 IN OA NO. 181/00081/14. EXHIBIT P2 A TRUE COPY OF JOINT APPLICATION FIELD BY THE APPLICATIONS IN OA 108/2014.** OP(CAT) No.143/2020 -:10:- **EXHIBIT P3** **A TRUE COPY OF REPLY STATEMENT FIELD BY RESPONDENTS NO. 3 TO 6 AND 8 TO 19 IN O.A. ALONG WITH ANNEXURES.** **ANNEXURE R3(A) A TRUE COPY OF THE O.M.F.NO. 3/1/98-E11 (B) 03 DATED 20.07.1998. ANNEXURE R3(B) A TRUE COPY OF THE O.M.NO.12 (1)/EII (B) 03 DATED 01.03.2004. ANNEXURE R3(C) A TRUE COPY OF THE O.M.F.NO.12(4)/2008 EII-(B) DATED 29.08.2008.** **ANNEXURE R3 (D) A TRUE COPY OF THE MEMORANDUM NO. 12(4) /2008 E11-(B) DATED 09.11.2011.** **ANNEXURE R3 (E) A TRUE COPY OF THE O.M. NO. 3 (1) 2008E11-(B) DATED 29.08.2008.** - **ANNEXURE R3 (F) A TRUE COPY OF THE COMMUNICATION NO. 12/1/2013-E.II (B) DATED 13.2.2014.** - **ANNEXURE R3 (G) A TRUE COPY OF THE CIRCULAR F. NO. 20/5/2009 F & A (PART) 922 DATED 28.2.2014.** **ANNEXURE R3 (H) A TRUE COPY OF THE CIRCULAR SERIES F.NO.1/4/2007 F & A 1416 DATED 02.04.2014 AND REMINDERS DATED 30.04.2014 AND 2.07.2014.** - **ANNEXURE R3 (I) A TRUE COPY OF THE OFFICE MEMORANDUM BY F.NO. 1/1/2014-FIN/3258 DATED 19.09.2014.** - **ANNEXURE R3 (J) A TRUE COPY OF THE LETTER NO. OAC/11/228/HAA/UTL/2014-15 /685 DATED 29.04.2014.** - **ANNEXURE R3 (K) A TRUE COPY OF THE LETTER NO. U- 15029/11/2014-ANL DATED 05.09.204.** OP(CAT) No.143/2020 -:11:- **ANNEXURE R3 (1)** **A TRUE COPY OF THE COMMON ORDER PASSED IN OA NO. 494/2013 AND CONNECTED CASES DATED 14.10.2014. EXCLUDING THE CAUSE TITLE OF CONNECTED CASES.** **EXHIBIT P4** **A TRUE COPY OF ADOPTION MEMO IN O.A. NO. 108/2014 DATED 30.10.2016.** **EXHIBIT P5** **A TRUE COPY OF REJOINDER IN O.A. NO. 81/2014 (P. KOYA VS. UNION OF INDIA AND OTHERS), DATED 30.10.2016.** **EXHIBIT P6 A TRUE COPY OF COMMON ORDER DATED 02.06.2017 IN O.A NO. 181/00108/2014 AND CONNECTED CASES.** **EXHIBIT P7** **A TRUE COPY OF THE OFFICE MEMORANDUM F.NO. 18/03/2015-ESTT (PAY-1) DATED 02.03.2016.**