Union of India & Ors. v. Akhila Umesh

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 05TH DAY OF OCTOBER 2020 / 13TH ASWINA, 1942** **OP (CAT).No.18 OF 2019** **AGAINST THE ORDER IN OA 49/2017 DATED 20-08-2018 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS:** **1 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF PERSONNEL, PG AND PENSION, DEPARTMENT OF PERSONNEL AND TRAINING, NORTH BLOCK, NEW DELHI 110 001** - **2 CHIEF POSTMASTER GENERAL, OFFICE OF THE CHIEF POST MASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM 695 033.** - **3 THE POST MASTER GENERAL, OFFICE OF THE POST MASTER GENERAL, CENTRAL REGION, KOCHI 682 020** - **4 THE HEAD RECORD OFFICER, RMS EK DIVISION, OFFICE OF THE HEAD RECORD, RMS EK DIVISION, DEPARTMENT OF POST, ERNAKULAM, KOCHI 682 011** - **5 THE SUPERINTENDENT, DEPARTMENT OF POSTS, RMS EK DIVISION, ERNAKULAM, KOCHI 682 011** **BY ADV. SRI.T.V.VINU, CGC** ## **RESPONDENT:** ## **AKHILA UMESH** **W/O. ARUN PANICKER, SORTING ASSISTANT, HEAD RECORD OFFICE, RMS EK DIVISION, KOCHI 682 011, ERNAKULAM DISTRICT RESIDING AT KRISHNA VIHAR, CHERUKULAM ROAD, PALLURUTHY, KOCHI 6, ERNAKULAM DISTRICT.** **R1 BY ADV. SRI.SAM ISAAC POTHIYIL R1 BY ADV. SMT.N.S.HASNA MOL R1 BY ADV. SMT.ANILA UMESH R1 BY ADV. SRI.K.AMAR RAGH R1 BY ADV. SHRI.VISHNU DAS** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 25-09-2020, THE COURT ON 05-10-2020 DELIVERED THE FOLLOWING:** O.P.(CAT)No.18/2019 2 ## **JUDGMENT** **Dated this the 5[th] day of October 2020** ## **Gopinath,J** The Union of India and its officers have filed this Original Petition challenging the order dated 2.8.2018 in O.A.No.49/2017 on the file of the Central Administrative Tribunal, Ernakulam Bench. That Original Application was filed by the present respondent/applicant before the Tribunal challenging a communication dated 10.01.2017 through which it was informed that a sum of Rs.1,41,332/- will be recovered from her on account of House Rent Allowance (HRA) claimed for which she was not eligible. 2. There is no dispute that the HRA paid to the respondent/applicant before the Tribunal which was sought to be recovered was not so payable for the period in question. The question is whether the said amount should be recovered as it is also not disputed that the applicant had not purposefully given any false information on the basis of which she was paid HRA by the Department. At the time of employment, the applicant was residing with her mother, who is a Government servant and had been O.P.(CAT)No.18/2019 3 allotted Government accommodation. When the respondent requested for a change of address following her marriage, the Department found that it had wrongly paid HRA in spite of the fact that the respondent was at that time staying along with her mother in Government allotted quarters. 3. The Tribunal has decided the matter relying on the judgment of the Supreme Court in _**State of Punjab and others**_ v. _**Rafiq Masih (White Washer);**_ (2015) 4 SCC 334. The Department took the contention based on the _ratio_ of _**Chandi Prasad Uniyal and others**_ v. _**State of Uttarakhand and others**_ ; (2012) 8 SCC 417, that any amount paid/received without the authority of law can always be recovered barring cases where recovery would cause extreme hardship. It is admitted before us that a substantial amount has already been recovered from the respondent since the Tribunal had originally permitted the recovery to continue subject of course to the final result of the Original Application. The Tribunal has, therefore, while quashing the entire recovery proceedings, directed refund of the amount already recovered. 4. Sri. T.V. Vinu, the learned Central Government Counsel appearing for the petitioners would contend that the Tribunal O.P.(CAT)No.18/2019 4 wrongly applied the judgment of the two Judges' Bench of the Supreme Court in _**Rafiq Masih** (supra)._ He would point out that this judgment should be confined to the facts of that case as the very same matter was earlier considered by a three-Judge Bench of the Supreme Court on a reference (which was answered by holding that there is no conflict of opinions warranting consideration by a threejudge Bench) and in that case, the three-Judge Bench had clearly observed that the observations in _**Chandi Prasad Uniyal** (supra)_ lay down the correct law and that the perceived conflict with the observations made by the Supreme Court in two other cases was not a conflict at all, since those were cases where relief had been granted in exercise of power under Article 142 of the Constitution of India, which does not constitute a binding precedent under Article 141 of the Constitution of India. 5. _Per contra,_ Ms.Anila Umesh, the learned counsel appearing for the respondent/applicant before the Tribunal would contend that her client had not made any misrepresentation which resulted in HRA being paid to her and that it would therefore be quite unjust to permit recovery of a huge amount at a later stage. She would contend that the case falls within the parameters noticed in two Judges' Bench judgment of the Supreme Court in O.P.(CAT)No.18/2019 5 _**Rafiq Masih** (supra)_ where recovery should not be permitted. She would also point out with reference to various documents that the family of the respondent/applicant before the Tribunal was having various medical issues and ordering recovery of a huge amount would result in placing severe stress on the finances of the family. She would therefore urge that we should uphold the order of the Tribunal. 6. In reply, the learned Central Government Counsel would submit that more than Rs.90,000/- had already been recovered and it may not be difficult for the respondent/applicant to pay back the balance amount, as the respondent, as well as her husband, are employees of the Postal Department and that if recovery is permitted, the same would not cause any financial hardship to the respondent/applicant. 7. Having considered the rival contentions, we are of the view that the Tribunal went wrong in applying the ratio of the two Judges' Bench judgment in _**Rafiq Masih** (supra)_ when a three Judges' Bench in the very same case had taken the view that the earlier judgment in _**Chandi Prasad Uniyal** (supra)_ laid down the correct position in law. We think it would be profitable to extract paragraphs 8 & 12 of the judgment of the three Judges' Bench in _**State of Punjab and others**_ v. _**Rafiq Masih (White Washer);**_ O.P.(CAT)No.18/2019 6 ## _(2014) 8 SCC 883 ,_ which reads as follows:- _8. In our view, the law laid down in Chandi Prasad Uniyal case [(2012) 8 SCC 417 : (2012) 4 SCC (Cri) 450] , no way conflicts with the observations made by this Court in the other two cases. In those decisions, directions were issued in exercise of the powers of this Court under Article 142 of the Constitution, but in the subsequent decision this Court under Article 136 of the Constitution, in laying down the law had dismissed the petition of the employee. This Court in a number of cases had battled with tracing the contours of the provision in Articles 136 and 142 of the Constitution of India. Distinctively, although the words employed under the two aforesaid provisions speak of the powers of this Court, the former vest a plenary jurisdiction in the Supreme Court in the matter of entertaining and hearing of appeals by granting special leave against any judgment or order made by a court or tribunal in any cause or matter. The powers are plenary to the extent that they are paramount to the limitations under the specific provisions for appeal contained in the Constitution or other laws. Article 142 of the Constitution of India, on the other hand is a step ahead of the powers envisaged under Article 136 of the Constitution of India. It is the exercise of jurisdiction to pass such enforceable decree or order as is necessary for doing “complete justice” in any cause or matter._ _12. Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It is_ O.P.(CAT)No.18/2019 7 _a justice-oriented approach as against the strict rigours of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law. “Declaration of law” as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the highest court of the land. This Court in Indian Bank v. ABS Marine Products (P) Ltd. [(2006) 5 SCC 72] , Ram Pravesh Singh v. State of Bihar [(2006) 8 SCC 381 : 2006 SCC (L&S) 1986] and in State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667 : 2006 SCC (L&S) 190] has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Court has compartmentalised and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared. The directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and_ O.P.(CAT)No.18/2019 8 ## _circumstances of the case.”_ Of course, the Supreme Court has taken the view that in cases where it would be inequitable to order recovery, the Court will in the exercise of its extraordinary jurisdiction interdict recovery, but not on account of the fact that the employer does not have the power to recover, but purely on considerations of equity. In _**Chandi Prasad**_ ## _**Uniyal (supra)**_ it was held :- _11. We may in this respect refer to the judgment of a two-Judge Bench of this Court in Col. B.J. Akkara case [(2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529] where this Court after referring to Shyam Babu Verma case [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Sahib Ram case [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248] and a few other decisions held as follows: (Col. B.J. Akkara case [(2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529] , SCC pp. 728-29, para 28)_ _“28. Such relief, restraining recovery back 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_ O.P.(CAT)No.18/2019 9 _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.”_ _12…….._ _13. We are not convinced that this Court in various 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_ O.P.(CAT)No.18/2019 10 _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._ _15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case [(2009) 3 SCC 475 : (2009) 1 SCC (L&S) 744] and in Col. B.J. Akkara case [(2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529] , the excess payment made due to wrong/irregular pay fixation can always be recovered._ _16. The appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order that the excess payment made be recovered from the appellant's salary in twelve equal monthly instalments starting from October 2012._ O.P.(CAT)No.18/2019 11 Though the learned counsel for the respondent has vehemently contended that we must, at any rate apply the principle referred to in paragraph 11 of _**Chandi Prasad Uniyal (supra),**_ in the facts of the present case, since the respondent/applicant has a long period of service left, considering her age as disclosed in the counter affidavit filed in this Court and considering the fact that her husband is also a Government employee and further considering the fact that a substantial portion of the amount has already been recovered, we are of the opinion that this is a case where we should permit the Department to recover the amount on the basis of the principles laid down in _**Chandi Prasad Uniyal** (supra)._ 8. However, there is one other contention of the learned counsel for the respondent that is required to be considered. She would submit that, if this Court were to permit any recovery, we should ensure that the recovery is directed to be made only in small amounts from the salary being paid every month to the respondent/applicant as otherwise, it would place a huge burden on the respondent/applicant. We feel that this contention is wellfounded. We, therefore, direct that the recovery of balance amount payable by the respondent shall be effected by recovering an amount of Rs.1,000/- (Rupees thousand only) every month from the salary O.P.(CAT)No.18/2019 12 and emoluments being paid to her. We also direct that no interest shall be levied on the amount. 9. In the light of the above, this Original Petition (CAT) will stand allowed. The order of the Central Administrative Tribunal dated 2.8.2028 in O.A.No.49/2017 will stand set aside, however, making it clear that the recovery shall be effected only in sums of Rs.1,000/- per month to be reduced from the salary and other emoluments being paid to the respondent and further directing that no interest shall be levied on the amount recovered or to be recovered from the respondent. **Sd/A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE** **acd** O.P.(CAT)No.18/2019 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION IN O.A NO. 180/00049/2017, DATED 13-01-2017 FILED BY THE RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER DATED 24-01-2017** - **EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT IN O.A NO. 180/00049/2017, DATED 10-022017** - **EXHIBIT P4 TRUE COPY OF THE REJOINDER IN O.A NO. 180/00049/2017, DATED 08-03-2017** - **EXHIBIT P5 TRUE COPY OF THE PETITIONER FILED AN ADDITIONAL REPLY STATEMENT IN O.A NO. 180/00049/2017, DATED 12-04-2017** - **EXHIBIT P6 TRUE COPY OF THE M.A NO. 1215 OF 2017 DATED 30-11-2017 FILED BY THE RESPONDENT** - **EXHIBIT P7 TRUE COPY OF THE M.A NO. 819 OF 2018 DATED 18-06-2018 IN O.A NO. 180/00049/2017 FILED BY THE RESPONDENT** - **EXHIBIT P8 TRUE COPY OF THE ORDER IN OA no. 180/00049/2017 DATED 02-08-2018, ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 A JUDGMENT IN STATE OF PUNJAB AND ORS VS RAFIQ MASIH (WHITE WASHER ) 2015(4) SCC 334**