STATE OF PUNJAB vs. RAFIQ MASIH (WHITE WASHER)

“REPORTABLE” IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

versus Rafiq Masih (White Washer) etc. … Respondent(s) WITH CIVIL APPEAL NO. 11528 OF 2014 [Arising out of SLP(C) No 35892 CC No. 14663 of 2010] CIVIL APPEAL NO. 11530 OF 2014 [Arising out of SLP(C) No.35914 .CC No. 20144 of 2010] CIVIL APPEAL NO. 11531 OF 2014 [Arising out of SLP(C) No. 35916 CC No. 9303 of 2011] CIVIL APPEAL NO. 11532 OF 2014 [Arising out of SLP(C) No. 35917 CC No. 15876 of 2011] CIVIL APPEAL NO. 11533 OF 2014 [Arising out of SLP(C) No. 35919 CC No. 16190 of 2011] CIVIL APPEAL NO. 11534 OF 2014 [Arising out of SLP(C) No. 35920 CC No. 16303 of 2011] CIVIL APPEAL NO. 11535 OF 2014 [Arising out of SLP(C) No. 35921 CC No. 16309 of 2011] CIVIL APPEAL NO. 11536 OF 2014 [Arising out of SLP(C) No. 35923 CC No. 16325 of 2011] CIVIL APPEAL NO. 11537 OF 2014 [Arising out of SLP(C) No.35924 CC No. 16326 of 2011] CIVIL APPEAL NO.11538 OF 2014 [Arising out of SLP(C) No.35927 CC No. 16327 of 2011] CIVIL APPEAL NO. 11539 OF 2014 [Arising out of SLP(C) No.35928 CC No. 16350 of 2011] CIVIL APPEAL NO. 11540 OF 2014 [Arising out of SLP(C) No. 35930 CC No. 16548 of 2011] CIVIL APPEAL NO. 11541 OF 2014 [Arising 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] CIVIL APPEAL NO. 11555 OF 2014 [Arising out of SLP(C) No. 35956 CC No.17709 of 2011] CIVIL APPEAL NO. 11556 OF 2014 [Arising out of SLP(C) No. 35957 CC No.17711 of 2011] CIVIL APPEAL NO. 11557 OF 2014 [Arising out of SLP(C) No. 35958 CC No.17735 of 2011] CIVIL APPEAL NO. 11558 OF 2014 [Arising out of SLP(C) No. 35959 CC No. 17798 of 2011] CIVIL APPEAL NO. 11559 OF 2014 [Arising out of SLP(C) No. 35960 CC No.17835 of 2011] CIVIL APPEAL NO. 11560 OF 2014 [Arising out of SLP(C) No. 35961 CC No. 17846 of 2011] CIVIL APPEAL NO. 11561 OF 2014 [Arising out of SLP(C) No. 35962 CC No. 17888 of 2011] CIVIL APPEAL NO. 11562 OF 2014 [Arising out of SLP(C) No. 35963 CC No. 18227 of 2011] JUDGMENT Page 1 2

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JUDGMENT J U D G M E N T Page 5 6 Jagdish Singh Khehar, J. 1. Leave granted.

benefits flowed to them, consequent upon a mistake committed by the concerned competent authority, in determining the emoluments payable to them. The mistake could have occurred on account of a variety of reasons; including the grant of a status, which the concerned employee was not entitled to; or payment of salary in a higher scale, than in consonance of the right of the concerned employee; or because of a wrongful fixation of salary of the employee, consequent upon the upward revision of pay- scales; or for having been granted allowances, for which the concerned employee was not authorized. The long and short of the matter is, that all JUDGMENT the private respondents were beneficiaries of a mistake committed by the employer, and on account of the said unintentional mistake, employees were in receipt of monetary benefits, beyond their due. 3. Another essential factual component in this bunch of cases is, that the respondent-employees were not guilty of furnishing any incorrect information, which had led the concerned competent authority, to commit the mistake of making the higher payment to the employees. The payment of higher dues to the private respondents, in all these cases, was not on Page 6 7 account of any misrepresentation made by them, nor was it on account of any fraud committed by them. Any participation of the private respondents, in the mistake committed by the employer, in extending the undeserved

were as innocent as their employers, in the wrongful determination of their inflated emoluments. 4. The issue that we have been required to adjudicate is, whether all the private respondents, against whom an order of recovery (of the excess amount) has been made, 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. JUDGMENT 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: Page 7 8 "In view of an apparent difference of views expressed on the one hand in Shyam Babu Verma and Ors. vs. Union of India & Ors. (1994) 2 SCC 521 and Sahib Ram Verma vs. State of Haryana (1995) Supp. 1 SCC 18; and on the other hand in Chandi Prasad Uniyal and Ors. vs. State of Uttarakhand & Ors. (2012) 8 SCC 417, we are of the view that the remaining special leave petitions should be placed before a Bench of Three Judges. The Registry is accordingly directed to place the file of the remaining special leave petitions before the Hon'ble the Chief Justice of India for taking instructions for the constitution of a Bench of three Judges, to adjudicate upon the present controversy." (emphasis is ours) The aforesaid reference was answered by a Division Bench of three Judges on 8.7.2014. While disposing of the reference, the three-Judge Division Bench, recorded the following observations in paragraph 7: “7. In our considered view, the observations made by the Court not to recover the excess amount paid to the appellant-therein were in exercise of its extra-ordinary powers under Article 142 of the Constitution of India which vest the power in this Court to pass equitable orders in the ends of justice.” (emphasis is ours) Having recorded the above observations, the reference was answered as JUDGMENT under: “12. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment. 13. In that view of the above, we are of the considered opinion that reference was unnecessary. Therefore, without answering the reference, we send back the matters to the Division Bench for its appropriate disposal.” (emphasis is ours) Page 8 9 6. In view of the conclusions extracted hereinabove, it will be our endeavour, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands

on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee. 7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of JUDGMENT 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 Page 9 10 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,

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 consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and JUDGMENT arbitrary, to effect the recovery. In such a situation, the employee’s right would outbalance, and therefore eclipse, the right of the employer to recover. 9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with “Fundamental Rights”. These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; Page 10 11 also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down the

46 contained in Part IV of the Constitution of India, dealing with the “Directive Principles of State Policy”. These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice – social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections. 10. In view of the afore-stated constitutional mandate, equity and good JUDGMENT conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding 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 Page 11 12 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

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 JUDGMENT following observation in paragraph 58:

Page 12 13

First and foremost, it is pertinent to note, that this Court in its judgment in

revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is JUDGMENT iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent Page 13 14 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

It is apparent, that in Shyam Babu Verma’s case (supra), the higher pay- scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay-scale would not be just and proper. We Page 14 15 therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.

“28. Such relief, restraining back recovery 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.” (emphasis is ours) JUDGMENT A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara’s case (supra) reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right 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 Page 15 16 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

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 has been paid to the appellant 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 appellant 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.” JUDGMENT (emphasis is ours) Page 16 17 Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make

excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, JUDGMENT we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period 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 Page 17 18 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

as under:

(emphasis is ours) 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 Page 18 19 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.

3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verma’s case (supra), a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were ineligible for the same. The concerned appellants were held not eligible for the higher scale, by applying the principle of “equal pay for equal work”. This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had JUDGMENT discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, 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 Page 19 20 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:

(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. JUDGMENT (v) In any other case, where 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. 13. We are informed by the learned counsel representing the appellant- State of Punjab, that all the cases in this bunch of appeals, would undisputedly fall within the first four categories delineated hereinabove. In the appeals referred to above, therefore, the impugned orders passed by Page 20 21 the High Court of Punjab and Haryana (quashing the order of recovery), shall be deemed to have been upheld, for the reasons recorded above. 14. The appeals are disposed of in the above terms. …..…………………………….J. (Jagdish Singh Khehar) …..…………………………….J. (Arun Mishra) New Delhi; December 18, 2014. JUDGMENT Page 21