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2014 Supreme(Manipur) 90
IN THE HIGH COURT OF MANIPUR AT IMPHAL
L.K.Mohapatra, J.
T.Thangsuanlian - Appellant
Versus
State of Manipur and Anr. - Resopndent
Writ Petition (C) No.909 of 2013
Decided On : 29-05-2014
For the petitioner:Mr.Th. Khagemba, Advocate.
For the Respondents: Mr. K. Jagat, G.A.
The main legal point established in the judgment is that if an amount was paid to the employee in excess mistakenly on the part of the employer, the excess payment is not recoverable from the person concerned. Additionally, if the excess payment was paid by applying wrong calculation, such excess amount cannot be recovered, especially when the employee has not contributed any role in the fixation of higher pay.
Headnote:
Recovery - Employment Dispute - Syed Abdul Qadir & Ors. –vrs – State of Bihar & Ors. - (2009) 3 SCC 475 - The court considered the issue of recovery of excess salary and referred to the principles laid down by the Supreme Court in the case of Syed Abdul Qadir & Ors. –vrs – State of Bihar & Ors. (2009) 3 SCC 475. The court held that if an amount was paid to the employee in excess mistakenly on the part of the employer, the excess payment is not recoverable from the person concerned. It further held that if the excess payment was paid by applying wrong calculation, such excess amount cannot be recovered, especially when the employee has not contributed any role in the fixation of higher pay. Applying these principles, the court set aside the direction for recovery of excess salary drawn by the petitioner while working in the post of Draughtsman Grade-I.
Fact of the Case:
The petitioner was initially appointed as Draughtsman Grade-II and was later promoted to the post of Draughtsman Grade-I. However, the promotion was challenged in a writ petition and subsequently set aside. The petitioner was then reverted to the post of Draughtsman Grade-II, and a direction was issued for the recovery of the excess salary drawn by him while serving in the post of Draughtsman Grade-I.
Finding of the Court:
The court allowed the writ application in part, setting aside the direction for recovery of the excess salary drawn by the petitioner while working in the post of Draughtsman Grade-I. However, the order of reversion was not interfered with.
Issues: The main issue was whether any direction for recovery could be issued when the petitioner was given promotion on the basis of the recommendation of the DPC and the order of reversion was passed in compliance with the court’s order.
Ratio Decidendi: The court applied the principles laid down by the Supreme Court in the case of Syed Abdul Qadir & Ors. –vrs – State of Bihar & Ors. and held that the excess salary drawn by the petitioner while working in the post of Draughtsman Grade-I could not be recovered, as the petitioner had no contribution to the promotion or reversion.
Final Decision: The court set aside the direction for recovery of the excess salary drawn by the petitioner while working in the post of Draughtsman Grade-I, but did not interfere with the order of reversion.
(ORAL)
Heard Mr.Th. Khagemba, learned counsel appearing on behalf of the petitioner as well as Mr.K. Jagat Singh, learned State counsel appearing for the respondents.
2. The petitioner in this writ application challenges the order in Annexure-A/9 dated 31.10.2013 in which not only he had been reverted to the post of Draughtsman Grade-II but also a direction has been issued for recovery of the excess salary drawn by him while serving in the post of Draughtsman Grade-I.
3. The petitioner was initially appointed as Draughtsman Grade-II by order of the Chief Engineer(Power) on 30.07.1990. After serving in the said post for a considerable length of time, he was recommended by the DPC for promotion to the post of Draughtsman Grade-I, and accordingly an order was issued on 29.11.2005 by the Chief Engineer(Power) appointing the petitioner on promotion to the post of Draughtsman Grade-I. The said promotion was challenged by one, Smt. V.S. Lungmila(ST) in a writ petition bearing W.P.(C) No.574 of 2006. The petitioner was not made a party in the said writ petition. However, the writ application was disposed of on 23.03.2009 and the recommendation of the DPC as well as the consequential promotion of the petitioner to the post of Draughtsman Grade-I were set aside. Even after disposal of the writ application, the Department allowed the petitioner to continue in the post of Draughtsman Grade-I and the said Smt.V.S. Lungmila filed another writ petition before this Court by W.P.(C) No.183 of 2012 for implementation of the judgment and order of this Court passed in W.P.(C) No.574 of 2006. In the second writ application also the petitioner was not made a party. The said writ petition W.P.(C) No.183 of 2012 was disposed of on 12.09.2012 directing the State respondents to implement the earlier judgment as expeditiously as possible preferably by 30.11.2012.
3.1. In compliance of the said judgment and order, the State respondents conducted a review DPC on 21.02.2013 and on the recommendation of the said review DPC, the said Smt. V.S. Lungmila was promoted to the post of Draughtsman Grade-I along with other incumbents. Subsequently, the petitioner was reverted on 31.10.2013 to the post of Draughtsman Grade-II. In the reversion order in Annexure-A/9, a further direction has been issued to the Executive Engineer, IED-II, Electricity Department, Manipur to take necessary action for calculation of excess pay drawn by the petitioner from 29.11.2005 in the post of Draughtsman Grade-I and recover the same.
4. Mr.Th. Khagemba, learned counsel appearing for the petitioner submits that on the basis of the recommendation of the DPC, the petitioner had been given promotion to the post of Draughtsman Grade-I and had joined to the post on 29.11.2005. Subsequently, in compliance of the court’s orders passed in the above two writ petitions he was reverted to the post of Draughtsman Grade-II under Annexure-A/9 dated 31st October, 2013. In the above two writ petitions the petitioner was not made a party to contest. He had neither any role to play for his promotion nor reversion and accordingly no direction need be issued for recovery of excess salary drawn by him while working as Draughtsman Grade-I.
5. Mr.K. Jagat Singh, learned State counsel submits that since the promotion given to the post of Draughtsman Grade-I was on the basis of the recommendation of the DPC in the year 2005 and the recommendation was set aside by the Court, the petitioner was not entitled to hold the post and accordingly order of reversion was passed and recovery of excess salary drawn was directed.
6. The sole question for consideration in this writ application is as to whether any direction for recovery can be issued when the petitioner was given promotion on the basis of the recommendation of the DPC and the order of reversion was passed in compliance of the court’s order. In this connection, reference may be made to a decision of the Apex Court in the case of Syed Abdul Qadir & Ors. –vrs
