DEAR ALL,
In
continuation of Sri C.H.Mahadevan's email,an Extract of Relevant
Portions,as Quintessence & Core Points in SC Judgement CAs
11527/2014,after going through in full,are placed below.
RBI
pensioners who got pension upgradation then & who got arrears
,former FM wanted to be ruthless to recover but that was stayed.Those
pensioners can now heave full sigh of relief. Further pension
revisions,RBI pensioners are also fighting for last 12 years. Detestable
Financial & Service sectors, the backbone of the NATION,are made to
fend for themselves & all sorts of backdoor entry,frivolous pleas,
as UOI/LIC are driven to a corner, are made to sabotage full victory----R.B.KISHORE
SC JUDGEMENT CAs 11527/2014
QUINTESSENCE
& CORE POINTS in SC ORDERS in respect of the ABOVE,after thorough delineation
by eminent Judges of SC
A)PARA 8/PAGE 10/21
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 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 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; 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 status of a section of the society, with such appellations.
The embodiment of the doctrine of equality, can also be found in Articles 38,
39, 39A, 43 and 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 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 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 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.
B)Page
17/21
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 the process of recovery
iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed
Abdul Qadir’s case (supra), that recovery of 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, 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
retirement,
or within one year of the date of his retirement on superannuation.
C)Page 19,20/21 FINAL
*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) 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
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.
SUMMARY by R.B.KISHORE,VP,AIRIEF
