1. Review petition against order barring recovery of excess salary after 15 years. (Para 2 )
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IN THE HIGH COURT OF GAUHATI (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Michael Zothankhum, J.
The Union Of India Rep. By The Secretary To The Govt. Of India, Ministry Of Health And Family Welfare, New Delhi And Ors. – Petitioners
Versus
Laxmi Devi @ Lakhimi Devi W/O Late Bul Barthakur And Ors. – Respondents
Review.Pet. 172 of 2022
Decided On : 20-09-2024
1. Review petition against order barring recovery of excess salary after 15 years. (Para 2 )
2. Dispute over classification of employees and effect of undertakings on time-barred recovery. (Para 3 , 4 , 5 , 6 )
3. Review petition dismissed; no error apparent on record. (Para 15 , 16 , 17 )
Review is limited to errors apparent on the face of the record; it cannot be used to reargue decided issues or raise new facts; lengthy reasoning is impermissible. (Para 8 , 16 , 17 )
Yes, recovery after more than five years from the date of wrong fixation is impermissible, even if an undertaking was given, unless the undertaking covers subsequent revisions. (Para 9 , 10 , 12 , 15 )
No, the undertaking only covers the initial pay fixation; subsequent revisions require fresh undertakings to be enforceable. (Para 11 )
No, review cannot be an appeal in disguise; new facts or arguments not raised in the original proceeding cannot be considered. (Para 8 , 16 )
No, recovery without notice and without determining the correct pay scale or excess amount is arbitrary and iniquitous. (Para 14 , 15 )
ORDER :
MICHAEL ZOTHANKHUMA, J.
1. Heard Mr. A.K. Dutta, learned CGC for the review petitioners. Also heard Mr. B.D. Das, learned Senior Counsel assisted by Ms. R. Deka and Mr. S.C. Biswas, learned counsels for the writ petitioners. Mr. R.K. Talukdar, learned counsel appears for the Comptroller and Auditor General of India (CAG).
2. The review petitioners’ counsel submits that the impugned judgment and order dated 13.09.2022 passed in WP(C) 258/2022 and the other 7 writ petitions should be reviewed, inasmuch as, this Court had allowed the writ petitions by holding that there could not be a recovery of any excess payment of salary made to the writ petitioners, as they were holding Class-III (Group-C) post, in terms of the judgment of the Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334.
3. The review petitioners’ counsel submits that when going into the Pay Scale enjoyed by the writ petitioners and the Grade Pay being given to them, it is clear that the writ petitioners were holding Group-B posts and not Group-C posts. He also submits that while there had been wrong fixation of pay of the writ petitioners as far back as on 01.01.2006, the writ petitioners had executed Undertakings in the year 2008 that they would refund back the excess pay given to them, due to any wrong fixation of pay. He submits that the recovery of the wrong fixation of pay of the petitioners started in the year 2021 and as the Undertakings given by the writ petitioners were still valid, there was no infirmity in the recovery of the excess pay given to the petitioners even after 15 years.
4. The learned CGC for the review petitioners further submits that in terms of the judgment of the Supreme Court in the case of High Court of Punjab & Haryana vs. Jagdev Singh, reported in (2016) 14 SCC 267, an employee who has furnished an Undertaking that excess payment made to him would be refunded, was bound by the Undertaking so given. He accordingly submits that the impugned judgment and order passed in WP(C) 258/2022 and the other writ petitions should be set aside by allowing the review petition.
5. Mr. B.D. Das, learned Senior Counsel for the writ petitioners, on the other hand submits that there is no mistake or error apparent on the face of the record and as such, when a lengthy process of reasoning is required to be undertaken to decide whether the impugned judgment is sustainable, a review petition will not be maintainable. He also submits that there was no stand taken by the review petitioners at the time of disposal of the writ petitions, that the Pay Scale and Grade Pay enjoyed by the writ petitioners showed that they belonged to Group-B posts. He submits that the undertaking given by the petitioners was in respect of the 6th Pay Commission recommendation, which was accepted vide the Central Civil Services (Revised Pay) Rules, 2008. However, another pay fixation was again done in the year 2010 and 2013, for which no undertaking for refund of excess pay was given by the writ petitioners. He also submits that in terms of the judgment of the Supreme Court in the case of Rafiq Masih (White Washer) [supra], when there has been wrong fixation of pay for more than 5 years, the question of recovery of the wrong fixation of pay does not arise, especially when there is no fraud or misrepresentation made on the part of the writ petitioners. He also submits that in terms of the Full Bench judgment of the Madhya Pradesh High Court in the case of State of Madhya Pradesh, through Principal Secretary and Others vs. Jagdish Prasad Dubey , reported in 2024 SC OnLine MP 1567, recovery can be effected from the pensionary benefits or from the salary of the employee, based on the Undertaking or the Indemnity Bond given by the employee before the grant of benefit of pay refixation. However, as the Supreme Court in the case of Rafiq Masih (supra) has held that recovery by the employers would be impermissible in law when
AI
Recovery of excess payments made to employees is impermissible where no fault exists on the employee's part and payments have spanned over five years, protecting livelihood rights.
Recovery of excess pay from Group C/D employees impermissible after 5 years without fraud, per Rafiq Masih, regardless of later re-classification.
Recovery of excess payment from employees must adhere to principles of natural justice and cannot be made after an unreasonable delay, especially for Class-3 employees.
Recoveries from retired employees based on erroneous salary payments are impermissible, emphasizing equitable treatment and judicial discretion in enforcing employee rights.
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