(Prayer: This Writ Petition is filed under Article 226 of the Constitution of India praying for :
a) To issue writ of certiorari or any other suitable order thereby quashing letter of communication No.KaViVi/SiAaSuVi/Shikshaketara/4/2017/5756 dated 10.02.2017 (Annexure-M) in the ends of equity and justice.
b) To issue writ of certiorari or any other suitable order thereby quashing the office order No.KaViVi/Pinchani/HaVi-40/1746 dated 22.02.2016 (Annexure-K) in the ends of equity and justice.
c) Issue writ of mandamus or any other suitable order there by directing the respondent to release a sum of Rs.2,82,586/- as per representations submitted by the petitioner (Annexure-L1) dated 20.12.2016, in the ends of equity and justice
d) To issue any other order or writ or appropriate nature as deemed fit by the Hon'ble Court, to secure the ends of justice.)
1. I have heard the arguments of the learned counsel for the petitioner and the respondent. There is no dispute that the petitioner was appointed as a Junior Clerk in the respondent - university on 24.09.1975. It is also not in dispute that, in the year 1986 a domestic enquiry was conducted against the petitioner and it was concluded by imposition of the penalty withholding of 5 annual increments of the petitioner with effect from 11.11.1986.
2. However, on 23.07.2001, the Vice Chancellor being the Appellate Authority has reduced the withholding of 5 annual increments to 2 annual increments. Thereafter it appears, the pay was fixed and petitioner was promoted as Senior Assistant and then to Assistant Office Superintendent etc. Thereafter, the petitioner attained the age of superannuation on 30.11.2015 and the pension of the petitioner was also fixed. However, an amount of Rs.2,82,586/- was deducted from the gratuity amount vide order dated 16.06.2016.
3. The petitioner being aggrieved by the said order dated 16.06.2016 and also 10.02.2017 in denying release of the said amount in favour of the petitioner, the petitioner is before this court challenging the said orders.
4. The contention of the petitioner is that, the pension has been fixed and thereafter the pensionary benefits have been released. While fixing the pensionary benefits, the petitioner has no role to play.
5. It is also submitted that while giving promotions and also the other benefits, the respondent has calculated and released the salary, promotional benefits and also pensionary benefits. But subsequently on the objections raised by the Accounts Office of the respondent as per Annexures-R.8 & R.9, the respondent found that, without deducting the 2 annual increments with cumulative effect as ordered by the Disciplinary Authority in a departmental enquiry, the pay scale has been fixed and also pensionary benefits have also been ordered. Therefore after coming to know about the same the amount of Rs.2,82,586/- was withheld in the gratuity of the petitioner.
6. The petitioner made a request to the respondent to release the said amount on the ground that, he is not responsible for the fixation of the salary and as well as the pension and releasing of the amount. It is by mistake the office has done that. Therefore whenever due to some mistake any amount is released, that cannot be recovered nor any amount can be withheld from the payment. However, the respondent has issued a letter as per Annexure-M dated 10.02.2017 stating that, the Syndicate has taken a decision as per the objections of the accounts section that the said amount has to be recovered from the petitioner. Therefore, the said request has been turn down by the respondents. Being aggrieved by the same present writ petition is filed.
7. The learned counsel for the petitioner mainly relying upon a decision of the Apex Court reported in (2015) 4 Supreme Court Cases 334 between State of Panjab & others Vs. Rafiq Masih and others, submitted that any mistake committed by the Officers are not sufficient to withhold any salary, pensionary benefits or even to recover any amount which has already been paid. The Apex Court laid down certain guidelines at paragraph No.18 in the above referred case which reads 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employees, 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 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 excess of five years, before the order of recovery is issued.
(iv) Recover in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even through he should have rightfully been required to work against an inferior post.
(v) In any other case, wherein 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.
On the basis of the above, the learned counsel submits that, withholding of any amount which has been mistakenly calculated or fixed to an employee is illegal and the same is ordered to be released in favour of the petitioner.
8. Per contra, the learned counsel for the respondent strenuously contends that, the petitioner has been imposed with the penalty and it cannot be said, it is a mistake by not only the office but also of the petitioner. Because once they are punished by department and for the wrongful act, they have to pay penalty by way of two increments. When such circumstances are prevailing to the knowledge of the petitioner the above said decision is not applicable.
9. He further contends that if at all by mistake or any misconception, if any amount is released or withheld as in this case, the same amounts to implementation of the penalty imposed upon the petitioner. Therefore the above said principle laid down in the Hon'ble Supreme Court decision is not presently applicable.
10. In the above set of facts and in view of the submissions it is also worth to refer to a decision of the Apex Court reported in (2013) 12 Supreme Court Cases 433 between Union of India and others Vs. Bhanwar Lal Mundan, wherein, the Hon'ble Apex Court has stated that:
"Pay - Pay Scale, fixation and revision - Pay fixation - Error in - Power of employer to rectify after retirement by rectifying pension - Refixation after retirement of pay fixed prior to retirement and directing recovery of excess amount paid - Permissibility - Respondent employee erroneously grated higher scale of pay after his repatriation to parent cadre on selection to higher post considering pay scale drawn by him while working in ex-cadre post - Propriety - Held, such fixation of pay was erroneous and hence, authorities were within their domain to rectify same and fix his pension accordingly - However, in the facts of the present case no recovery from excess amount paid can be effected in terms of concession by counsel - Pension - Quantum - Error in fixation of pay before retirement - Pension, held, can be rectified after retirement."
11. In another ruling reported in (2014) 13 Supreme Court Cases 598 between Union Territory, Chandigarh and others Vs. Gurcharan Singh and another. Wherein the Apex Court has observed that:
"With regard to pay, refixation and rectification of mistake committed during pay fixation permissibility. Respondent given benefit of past service rendered by him in Indian Army and his scale fixed in higher scale and then what ought to have been allowed and despite fact that he had given an option thereby he had opted for minimum scale of pay held as per provision of 1986, Orders and option exercised by the respondent, service rendered in Indian Army cannot be taken into account for purpose of his pay fixation as respondent would be getting his pension and there would be no deduction in pension or salary on account of pension received by him in Indian Army. Consequently he would not have any right to get any further advantage in the nature of higher salary or higher pay scale. Tribunal justified in finding that re-fixation of respondent pay was correct. High Court erred in holding otherwise Central Civil Services Fixation of Pay or Reemployment Pensioners (Orders) 1986. The Apex Court also held that disbursement of higher pay scale to respondent - employee by mistake, submission that extra amount so paid may not be recovered rejected since if any amount is paid due to mistake, mistake was to rectified and amount paid pursuant to such mistake recovered."
12. Considering the above said three decision including the latest one (2015) 4 Supreme Court Cases 334 it all depends upon the facts and circumstances of each case, where the court has considered, when such an amount when can be withheld or recovered from the pensioner. Therefore, a person is not entitled to that particular amount as a matter of fact. Whether that can be withheld as per the above said decision of the Hon'ble Supreme Court in the case of Union Territory, Chandigarh and others Vs. Gurcharan Singh and another is to be tested by considering the facts of this case.
13. In this particular case also as could be seen, two increments have been withheld by the competent authorities and it appears that order was logically concluded before the competent authorities. Therefore, it is evident from the records that, the petitioner knew that, he is not entitled for such two increments with cumulative effect. When such being the case it also cast the responsibility on the petitioner to bring it to the notice of the competent authorities that two increments have been excessly paid to him by mistaken notion. It goes without saying by applying the principle that no man should be enriched at the cost of another, that means to say here the petitioner has been imposed with penalty, if at all that amount is also paid to him it virtually amounts to exonerating him from the such punishment i.e., not the idea which was behind the judgment of the Hon'ble Apex Court reported in (2015) 4 Supreme Court Cases 334 in the case of State of Panjab Vs. Rafiq Masih and others.
14. Even on meaningful understanding of the said decision, it is very much clear that, while giving such guidelines the Apex Court has also observed that where payments have been made mistakenly by the employer in excess of their entitlement, it is impermissible from recovering the said amount from them. Therefore, once the amount is paid then only, the
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question of their hardship and other things comes into picture. When the amount is not yet paid but withheld, the said principle is not applicable for the present case. 15. Therefore, in the above said set of facts and circumstances the mistaken notion in fixing the salary and payment of the amount so far as this case is concerned, not on any other ground that, the excess amount found by virtue of any miscalculation. But it is evident that it was due to non calculation of the amount with reference to withholding of the two increments which was imposed by way of punishment, which was very much within the knowledge of the petitioner. It is unreasonable on the part of the petitioner to claim that amount. 16. When such being the case, when the amount has to be recovered or the amount has to be paid which is referable to the misconduct of a particular person. In my opinion such amount cannot be said to be due to miscalculation or by means of mistaken notion. 17. Under the above said circumstances I do not find any strong reasons to interfere with the orders passed by the employer of the petitioner in withholding the above said amount. Hence the petition deserves to be dismissed accordingly dismissed.