TMI Blog2014 (12) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... o employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction Under Article 142 of the Constitution of India. Repeated exercise of such power, for doing complete justice in any cause would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court. It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs. 700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class M.A., M. Sc., M. Com. plus a first or second class B. Lib. Science or a Dip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing out of SLP (C) No. 35931 CC No. 16580 of 2011), Civil Appeal No. 11542 of 2014 (Arising out of SLP (C) No. 35932 CC No. 16582 of 2011), Civil Appeal No. 11543 of 2014 (Arising out of SLP (C) No. 35936 CC No. 16594 of 2011), Civil Appeal No. 11544 of 2014 (Arising out of SLP (C) No. 35940 CC No. 16723 of 2011), Civil Appeal No. 11545 of 2014 (Arising out of SLP (C) No. 35941 CC No. 16850 of 2011), Civil Appeal No. 11546 of 2014 (Arising out of SLP (C) No. 35943 CC No. 16904 of 2011), Civil Appeal No. 11547 of 2014 (Arising out of SLP (C) No. 35944 CC No. 17192 of 2011), Civil Appeal No. 11548 of 2014 (Arising out of SLP (C) No. 35945 CC No. 17193 of 2011), Civil Appeal No. 11549 of 2014 (Arising out of SLP (C) No. 35948 CC No. 17201 of 2011), Civil Appeal No. 11550 of 2014 (Arising out of SLP (C) No. 35949 CC No. 17204 of 2011), Civil Appeal No. 11551 of 2014 (Arising out of SLP (C) No. 35951 CC No. 17388 of 2011), Civil Appeal No. 11552 of 2014 (Arising out of SLP (C) No. 35952 CC No. 17507 of 2011), Civil Appeal No. 11553 of 2014 (Arising out of SLP (C) No. 35954 CC No. 17508 of 2011), Civil Appeal No. 11554 of 2014 (Arising out of SLP (C) No. 35955 CC No. 17534 of 2011), Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014 (Arising out of SLP (C) No. 35987 CC No. 18805 of 2011), Civil Appeal No. 11583 of 2014 (Arising out of SLP (C) No. 35989 CC No. 18834 of 2011), Civil Appeal No. 11584 of 2014 (Arising out of SLP (C) No. 35990 CC No. 18857 of 2011), Civil Appeal No. 11585 of 2014 (Arising out of SLP (C) No. 35991 CC No. 18960 of 2011), Civil Appeal No. 11586 of 2014 (Arising out of SLP (C) No. 35993 CC No. 19116 of 2011), Civil Appeal No. 11587 of 2014 (Arising out of SLP (C) No. 35994 CC No. 19236 of 2011), Civil Appeal No. 11588 of 2014 (Arising out of SLP (C) No. 35995 CC No. 19527 of 2011), Civil Appeal No. 11589 of 2014 (Arising out of SLP (C) No. 35996 CC No. 19552 of 2011), Civil Appeal No. 11590 of 2014 (Arising out of SLP (C) No. 35997 CC No. 19556 of 2011), Civil Appeal No. 11591 of 2014 (Arising out of SLP (C) No. 35999 CC No. 19580 of 2011), Civil Appeal No. 11593 of 2014 (Arising out of SLP (C) No. 36000 CC No. 19590 of 2011), Civil Appeal No. 11594 of 2014 (Arising out of SLP (C) No. 36001 CC No. 19594 of 2011), Civil Appeal No. 11595 of 2014 (Arising out of SLP (C) No. 36002 CC No. 19597 of 2011), Civil Appeal No. 11596 of 2014 (Arising out of SLP (C) No. 36003 CC No. 19599 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1200 of 2012), Civil Appeal No. 11626 of 2014 (Arising out of SLP (C) No. 36039 CC No. 1291 of 2012), Civil Appeal No. 11627 of 2014 (Arising out of SLP (C) No. 36040 CC No. 1303 of 2012), Civil Appeal No. 11628 of 2014 (Arising out of SLP (C) No. 36042 CC No. 1306 of 2012), Civil Appeal No. 11629 of 2014 (Arising out of SLP (C) No. 36043 CC No. 1391 of 2012), Civil Appeal No. 11630 of 2014 (Arising out of SLP (C) No. 36044 C No. 1596 of 2012), Civil Appeal No. 11631 of 2014 (Arising out of SLP (C) No. 36045 CC No. 1637 of 2012), Civil Appeal No. 11632 of 2014 (Arising out of SLP (C) No. 36046 CC No. 1644 of 2012), Civil Appeal No. 11633 of 2014 (Arising out of SLP (C) No. 36047 CC No. 1653 of 2012), Civil Appeal No. 11636 of 2014 (Arising out of SLP (C) No. 36048 CC No. 1657 of 2012), Civil Appeal No. 11637 of 2014 (Arising out of SLP (C) No. 36049 CC No. 1739 of 2012), Civil Appeal No. 11638 of 2014 (Arising out of SLP (C) No. 36051 CC No. 1864 of 2012), Civil Appeal No. 11639 of 2014 (Arising out of SLP (C) No. 36052 CC No. 1869 of 2012), Civil Appeal No. 11640 of 2014 (Arising out of SLP (C) No. 36053 CC No. 1928 of 2012), Civil Appeal No. 11641 of 2014 (Arising out of SLP (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No. 11672 of 2014 (Arising out of SLP (C) No. 36089 CC No. 13044 of 2012), Civil Appeal No. 11673 of 2014 (Arising out of SLP (C) No. 36091 CC No. 13114 of 2012), Civil Appeal No. 11674 of 2014 (Arising out of SLP (C) No. 36092 CC No. 13300 of 2012), Civil Appeal No. 11675 of 2014 (Arising out of SLP (C) No. 26306 of 2012), Civil Appeal No. 11676 of 2014 (Arising out of SLP (C) No. 26307 of 2012), Civil Appeal No. 11677 of 2014 (Arising out of SLP (C) No. 26308 of 2012), Civil Appeal No. 11678 of 2014 (Arising out of SLP (C) No. 26386 of 2012), Civil Appeal No. 11679 of 2014 (Arising out of SLP (C) No. 26388 of 2012), Civil Appeal No. 11680 of 2014 (Arising out of SLP (C) No. 26389 of 2012), Civil Appeal No. 11681 of 2014 (Arising out of SLP (C) No. 26391 of 2012), Civil Appeal No. 11682 of 2014 (Arising out of SLP (C) No. 28655 of 2012), Civil Appeal No. 11683 of 2014 (Arising out of SLP (C) No. 28812 of 2012), Civil Appeal No. 11684 of 2014 (Arising out of SLP (C) No. 28813 of 2012), Civil Appeal No. 11685 of 2014 (Arising out of SLP (C) No. 28814 of 2012), Civil Appeal No. 11686 of 2014 (Arising out of SLP (C) No. 28815 of 2012), Civil Appeal No. 11687 of 2014 (Arising out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of SLP (C) No. 5751 of 2013), Civil Appeal No. 11814 of 2014 (Arising out of SLP (C) No. 5753 of 2013), Civil Appeal No. 11816 of 2014 (Arising out of SLP (C) No. 5765 of 2013), Civil Appeal No. 11818 of 2014 (Arising out of SLP (C) No. 5810 of 2013), Civil Appeal No. 11819 of 2014 (Arising out of SLP (C) No. 5821 of 2013), Civil Appeal No. 11821 of 2014 (Arising out of SLP (C) No. 5838 of 2013), Civil Appeal No. 11836 of 2014 (Arising out of SLP (C) No. 36112 CC No. 6861 of 2013), Civil Appeal No. 11837 of 2014 (Arising out of SLP (C) No. 9907 of 2013), Civil Appeal No. 11838 of 2014 (Arising out of SLP (C) No. 9909 of 2013), Civil Appeal No. 11839 of 2014 (Arising out of SLP (C) No. 9911 of 2013), Civil Appeal No. 11840 of 2014 (Arising out of SLP (C) No. 9912 of 2013), Civil Appeal No. 11841 of 2014 (Arising out of SLP (C) No. 9913 of 2013), Civil Appeal No. 11842 of 2014 (Arising out of SLP (C) No. 9914 of 2013), Civil Appeal No. 11843 of 2014 (Arising out of SLP (C) No. 9915 of 2013), Civil Appeal No. 11844 of 2014 (Arising out of SLP (C) No. 9916 of 2013), Civil Appeal No. 11845 of 2014 (Arising out of SLP (C) No. 9918 of 2013), Civil Appeal No. 11846 of 2014 (Arising ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of SLP (C) No. 19469 of 2013), Civil Appeal No. 11869 of 2014 (Arising out of SLP (C) No. 20529 of 2013), Civil Appeal No. 11872 of 2014 (Arising out of SLP (C) No. 20830 of 2013), Civil Appeal No. 11874 of 2014 (Arising out of SLP (C) No. 21492 of 2013), Civil Appeal No. 11877 of 2014 (Arising out of SLP (C) No. 21554 of 2013), Civil Appeal No. 11880 of 2014 (Arising out of SLP (C) No. 36124 CC No. 3626 of 2014), Civil Appeal No. 11882 of 2014 (Arising out of SLP (C) No. 8103 of 2014) and Civil Appeal No. 11886 of 2014 (Arising out of SLP (C) No. 11704 of 2012) Hon'ble Judges J.S. Khehar and Arun Mishra, JJ. For Appellant/Petitioner/Plaintiff: V.K. Bali, Sr. Adv., Nikhil Nayyar, Aditya Soni, C. Kumar, Pardaman Singh, Jagjit Singh Chhabra, Ajay Pal, Kuldeep Singh, Kaveeta Wadia, Jatinder Kumar Bhatia, Naresh Bakshi, Rachana Joshi Issar and Ambreen Rasool, Advs. For Respondents/Defendant: Sudhir Walia, Niharika Ahluwalia, Anjali Nair, Abhishek Atrey, Anis Ahmed Khan, Vipin Gupta, Ansar Ahmad Chaudhary, Dinesh Verma, Rajat Sharma, Subhasish Bhowmick, Yashpal Rangi, Satyendra Kumar, Kanhaiya Priyadarshi, Mukesh Kumar Verma, S. Tomar, Shish Pal Laler, N.P. Midha, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , should be exempted in law, from the reimbursement of the same to the employer. For the applicability of the instant order, and the conclusions recorded by us hereinafter, the ingredients depicted in the foregoing two paragraphs are essentially indispensable. 5. Merely on account of the fact, that the release of these monetary benefits was based on a mistaken belief at the hands of the employer, and further, because the employees had no role in the determination of the employer, could it be legally feasible, for the private Respondents to assert, that they should be exempted from refunding the excess amount received by them? Insofar as the above issue is concerned, it is necessary to keep in mind, that the following reference was made by a Division Bench of two Judges of this Court, for consideration by a larger Bench: In view of an apparent difference of views expressed on the one hand in Shyam Babu Verma and Ors. v. Union of India and Ors. (1994) 2 SCC 521 and Sahib Ram Verma v. State of Haryana (1995) Supp. 1 SCC 18; and on the other hand in Chandi Prasad Uniyal and Ors. v. State of Uttarakhand and Ors. (2012) 8 SCC 417, we are of the view that the remaining special leav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction Under Article 142 of the Constitution of India. Repeated exercise of such power, for doing complete justice in any cause would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court. 8. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court Under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India. 11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters. (i). Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar (2009) 3 SCC 475, wherein this Court recorded the following observation in paragraph 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee. 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: 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. January 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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. (iii). This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows: 59. Undoubtedly, the excess amount that ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod 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. (iv). Last of all, reference may be made to the decision in Sahib Ram Verma v. Union of India (1995) Supp. 1 SCC 18, wherein it was concluded as under: 4. Mr. Prem Malhotra, learned Counsel for the Appellant, contended that the previous scale of Rs. 220-550 to which the Appellant was entitled became Rs. 700-1600 since the Appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs. 700-1600 but they insisted upon the minimum educational qualification of first or second class M.A., M. Sc., M. Com. plus a first or second class B. Lib. Science or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post. 12. 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 employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
