Thursday 27 December 2012

Any amount paid/received without authority of law can always be recovered ;unjust unrichment

 We are concerned with the excess payment of public money which is often described as “tax payers money” which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. 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 Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such 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 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.

C.A. No. 5899 of 2012 - Chandi Prasad Uniyal Vs. State of Uttarakhand, (2012) 8 SCC 417 : JT 2012 (7) SC 460 : 2012 (7) SCALE 376


REPORTABLE
IN THE SUPREME COURT OF INDIA

Chandi Prasad Uniyal  & Ors.    .. Appellants
Versus
State of Uttarakhand & Ors. .. Respondents
  
   K.   S.   RADHAKRISHNAN,   J.
1. Leave granted.
2. The question that arises for consideration in this appeal is whether
over-payment of amount due to wrong fixation of 5
th
 and 6
th
 pay scale of
teachers/principals based on the 5
th
 Pay Commission Report could be

recovered from the recipients who are serving as teachers.  The Division
Bench of the High Court rejected the writ petition filed by the appellants
and took the view that since payments were effected due to a mistake
committed  by  the  District  Education  Officer,  the  same  could  be
recovered.   Aggrieved  by  the  said  judgment,  this  appeal  has  been
preferred.  
3. Shri Shivam Sharma, learned counsel appearing for the appellants,
fairly submitted that the payments were effected due to a mistake but not
due to any misrepresentation or fraud committed by the appellants and
hence  the  decision  taken  to  recover  the  amount  is  not  legal.   For
establishing his contention, reliance was placed on several judgments of
this Court like Shyam Babu Verma v. Union of India [(1994) 2 SCC
521], Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18], State
of  Bihar  v.  Pandey  Jagdishwar  Prasad [(2009)  3  SCC  117]  and
Yogeshwar  Prasad  and  Ors  v.  National  Institute  of  Education
Planning and Administration and Ors. [(2010) 14 SCC 323].
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4. Mrs.  Rachana  Srivastava,  learned  counsel  appearing  for  the
respondent-State, took us through the counter affidavit filed by the State
before this Court and submitted that the over-payment was effected due
to wrong fixation of pay.  Learned counsel also submitted that where the
payments have been made under a bona fide mistake, the beneficiaries
have no right to retain the same.  Learned counsel placing reliance on
the judgment of this Court in Col. B.J. Akkara (retd.) v. Government
of India and Ors. [(2006) 11 SCC 709] submitted that the High Court
has correctly exercised its discretion in rejecting the writ petition after
having found that the payments were effected due to wrong fixation of
pay scale and this Court under Article 136 of the Constitution of India
shall not interfere with the discretion exercised by the Hon’ble High
Court.  Reliance was also placed on another judgment of this Court in
Syed Abdul Qadir and Ors. v. State of Bihar and Ors. [(2009) 3 SCC
475] and submitted that this court granted relief in that case since many
of the teachers had retired from the service while in the present case all
the appellants are still in service.

5. Parties  are  not  in  conflict  on  facts,  however  reference  to  few
essential  facts  are  necessary  for  a  proper  disposal  of  this  appeal.
Appellants, herein, had filed the writ petition before the High Court
seeking  a  writ  of  certiorari  to  quash,  an  inter-departmental
communication dated 24.10.2009 followed by a letter dated 18.11.2009
issued by the District Education Officer to the Manager/Principal of few
Sanskrit Colleges in Hardwar where excess payments were made due to
wrong fixation of pay.  The operative portion of the communication
dated 24.10.2009 reads as follows:
“Through this meeting it has come to my knowledge that
there is no similarity in the fixation of revised 5
th
 pay scale
throughout  the  State.   Some  of  the  District  Education
Officers have not taken into consideration the letters issued
by this office and fixed pay scales as a result there is no
similarity  in  the  fixation  of  pay  scale  and  therefore
confusion  has  arisen  among  the  different  classes  of
teachers.   For  adjudication  of  the  same  and  to  bring
similarity in the fixation of pay scale and to avoid any
difficulty in the future, again you are hereby directed about
the pay fixation through enclosures.  If pay fixation has
been done by you as per the letters of this office then it is
O.K. otherwise it will be fixed later on.  If it has been fixed
already, then the remaining salary can only be paid after
availability  of  the  amount  in  this  office  and  you  are
requested to send demand letter to this office for release of
4Page 5
the  remaining  amount.   In  case  of  fixation  of  payment
contrary to the letters of this office, the remaining amount
be not released.”
6. Further,  in  the  letter  dated  18.11.2009,  the  District  Education
Officer had informed the Manager / Principal of the colleges as follows:
“With this letter a copy of model pay fixation form is being
forwarded towards you so that you may ensure the correct
fixation of 5
th
 & 6
th
 pay scale of the teachers/principals of
your schools.  You are requested to kindly fix the pay scale
as per model pay fixation form.  You are further requested
to kindly make ensure to make available the revised pay
scale  form  and  service  register  to  the  finance  officer,
school  education  Hardwar and the  undersigned  as early
possible.   Only  thereafter  the  salary  of  the  concerned
principals/teachers shall be issued and further deposit the
challan in respect of excess payment in the treasury.  The
teachers whose pay has been wrongly fixed are as follows:-
1. Sh.  Jagdish  Prasad,  Teacher  (Literature),  Sh.
Jagdevsingh Sanskrit Mahavidhyalaya, Hardwar ;
2. Sh. Markandey Prasad Semwal, Teacher, Sh. Udashin
Sanskrit Mahavidhyalaya, Hardwar ;
3. Sh.  Chandi  Prasad  Uniyal,  Principal,  Sh.  Nirmal
Sanskrit Mahavidhyalaya, Kankhal, Hardwar.”

Appellants herein are some of the teachers named in that letter; similar
communications had gone to few other institutions, where appellants
work.
7. We may point out indisputedly, the appellants 1 and 2 herein were
not in the pay scale of Rs.4,250-6,400 as such they could not have got
the revised pay scale of Rs.10,000-15,200/- w.e.f. 01.07.2001.  Only if
they were getting pay scale of Rs.8000-13,500/- on 01.01.1996, they
would have been entitled to be placed in the pay scale of 10,000-15,200
as on 01.07.2001.  Further, appellants 3 to 5 were working as Assistant
Teachers and drawing in pay scale of Rs.3,600-5,350/- as on 01.01.1996
and were placed in the pay scale of Rs.5,500-9,000 as on 01.07.2001.
Further, it was noticed that none of the appellants were working as
principals and were never placed in the pay scale of 8,000-15,500 as on
01.01.1996 to get the benefit of the pay scale of 10,000-15,200 as on
01.07.2001.  We also find only few persons like the appellants have been
getting higher pay scale in the district of Haridwar w.e.f. 01.07.2001 and
similarly situated persons in the rest of Uttarakhand are getting the same

pay  scale  of  Rs.10,000-15,200  only  from  11.12.2007  and  it  was  to
rectify this anomaly, the District Education Officer, Haridwar passed the
order dated 24.10.2009.
8. We may also indicate that when the revised pay scale/pay fixation
was fixed on the basis of the 5
th
 Central Pay Scale, a condition was
superimposed which reads as follows:
“In  the  condition  of  irregular/wrong  pay  fixation,  the
institution shall be responsible for recovery of the amount
received in excess from the salary/pension.”
The appellants are further bound by that condition as well.  The facts,
mentioned hereinabove, would clearly demonstrate that the excess salary
was paid due to irregular/wrong pay fixation by the concerned District
Education Officer.  The question is whether the appellants can retain the
amount  received on the  basis  of irregular/wrong  pay fixation  in the
absence of any misrepresentation or fraud on their part, as contended.  
9. We  are  of  the  considered  view,  after  going  through  various
judgments cited at the bar, that this court has not laid down any principle

of law that only if there is misrepresentation or fraud on the part of the
recipients of the money in getting the excess pay, the amount paid due to
irregular/wrong fixation of pay be recovered.
10. Shyam  Babu  Verma case (supra)  was  a  three-Judge  Bench
judgment, in that case the higher pay scale was erroneously paid in the
year 1973, the same was sought to be recovered in the year 1984 after a
period of eleven years.  The court felt that the sudden deduction of the
pay  scale  from  Rs.330-560  to  Rs.330-480  after  several  years  of
implementation of said pay scale had not only affected financially but
even the seniority of the petitioners.  Under such circumstance, this
Court had taken the view that it would not be just and proper to recover
any excess amount paid.
11. In  Sahib  Ram  case (supra),  a  two-Judge  Bench  of  this  Court
noticed  that  the  appellants  therein  did  not  possess  the  required
educational qualification and consequently would not be entitled to the
relaxation but having granted the relaxation and having paid the salary
on the revised scales, it was ordered that the excess payment should not

be recovered applying the principle of equal pay for equal work.  In our
view,  this  judgment  is  inapplicable  to  the  facts  of  this  case.     In
Yogeshwar Prasad case (supra), a two-Judge Bench of this Court after
referring to the above mentioned judgments took the view that the grant
of  higher  pay  could  not  be  recovered  unless  it  was  a  case  of
misrepresentation or fraud.  On facts, neither misrepresentation nor fraud
could  be  attributed  to  appellants  therein  and  hence,  restrained  the
recovery of excess amount paid.
12. We may in this respect refer to the judgment of two-Judge Bench
of this Court in Col. B.J. Akkara (retd.) case (supra) where this Court
after referring to  Shyam Babu Verma case,  Sahib Ram case  (supra)
and few other decisions held as follows:
“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 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.”
13. Later, a three-Judge Bench in  Syed Abdul Qadir case (supra)
after referring to  Shyam Babu Verma, Col. B.J. Akkara (retd.)  etc.
restrained the department from recovery of excess amount paid, but held
as follows:
“Undoubtedly, the excess amount that has been paid to the
appellants  -  teachers  was  not  because  of  any
misrepresentation or fraud on their part and the appellants
also had no knowledge that the amount that was being paid
to them was more than what they were entitled to. It would
not  be  out  of  place  to  mention  here  that  the  Finance
Department had, in its counter affidavit, admitted that it
was a bona fide mistake on their part. The excess payment
made was the result of wrong interpretation of the rule that
was applicable to them, for which the appellants cannot be
held responsible. Rather, the whole confusion was because
of  inaction,  negligence  and  carelessness  of  the  officials
concerned of the Government of Bihar.  Learned Counsel
appearing on behalf of the appellants-teachers submitted
that majority of the beneficiaries have either retired or are

on the verge of it. Keeping in view the peculiar facts and
circumstances  of  the  case  at  hand  and  to  avoid  any
hardship to the appellants-teachers, we are of the view that
no recovery of the amount that has been paid in excess to
the appellants-teachers should be made.
(emphasis added)” 
14. We may point out that in Syed Abdul Qadir case such a direction
was given keeping in view of the peculiar facts and circumstances of
that case since the beneficiaries had either retired or were on the verge of
retirement and so as to avoid any hardship to them.  
15. 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  on  the  verge  of
retirement  or  were  occupying  lower  posts  in  the  administrative
hierarchy.  

16. We are concerned with the excess payment of public money which
is often described as “tax payers money” which belongs neither to the
officers who have effected over-payment nor that of the recipients.  We
fail  to  see  why  the  concept  of  fraud  or  misrepresentation  is  being
brought in such situations.  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 Government officers, may
be  due  to  various  reasons  like  negligence,  carelessness,  collusion,
favouritism etc. because money in such 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  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.

17. We are, therefore, of the considered view that except few instances
pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara
(retd.) case (supra), the excess payment made due to wrong/irregular
pay fixation can always be recovered.  
18. 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 the excess payment made be recovered
from the appellant’s salary in twelve equal monthly installments starting
from October 2012.  The appeal stands dismissed with no order as to
costs.  IA Nos.2 and 3 are disposed of.
…………………………………….........J.
(K.S. Radhakrishnan)
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………………………………………………J.
(Dipak Misra)
New Delhi,
August 17,  2012
14
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