Supreme Court of India
STATE OF PUNJAB & ORS.versusRAFIQ MASIH (WHITE WASHER)
- Citation
- 2014 INSC 479
- Decided
- 8 July 2014
Holding
The Court held that the earlier decisions are not in conflict and the reference to a three‑Judge Bench is unnecessary, remitting the matters to the Division Bench.
Summary
The State of Punjab filed a Special Leave Petition challenging a High Court order that barred recovery of excess pensionary payments made to the respondent, a white washer, on the ground that the employee had not committed fraud. The Supreme Court examined the apparent conflict between earlier decisions: Shyam Babu Verma and Sahib Ram Verma, where excess payments were not recovered under Article 142, and Chandi Prasad Uniyal, where the Court held that excess amounts paid by mistake could be recovered under ordinary law. The Court observed that the earlier decisions were rendered using the extraordinary powers of Article 142 and did not constitute binding law, whereas the later decision under Article 136 laid down the substantive rule. It concluded that there is no real inconsistency between the judgments and that the reference to a larger bench was unnecessary. Consequently, the matters were remitted to the Division Bench for appropriate disposal without answering the reference. The order also clarified the distinct scopes of Articles 136 and 142 of the Constitution.
Issues considered
- Whether the government can recover excess salary or pension paid to an employee in the absence of fraud or misrepresentation.
- Whether the decisions in Shyam Babu Verma and Sahib Ram Verma conflict with the decision in Chandi Prasad Uniyal on recovery of excess payments.
- Scope and interplay of Articles 136 and 142 of the Constitution of India in issuing equitable orders versus declaring law.
Legislation cited
- Constitution of Indias. 1.36, s. 136, s. 141, s. 142
Subjects
service lawexcess payment recoveryArticle 136Article 142Supreme Courtspecial leave petitionemployee remunerationunjust enrichment
Judgment
[2014] 8 S.C.R. 228
A STATE OF PUNJAB &·ORS.
v.
RAFIQ MASIH (WHITE WASHER)
(Special Leave Petition (C) No.11684 of 2012 ETC.)
JULY 08, 2014
B
[H.L. DATIU, R.K. AGRAWAL AND ARUN MISHRA, JJ.]
SERVICE LAW:
Recovery of dues mistakenly paid to employee - A
C Division Bench of Supreme Court observing apparent
difference of opinion in Shyam Babu Verma and Saheb Ram
Verma, on the one hand, and Chandi Prasad Uniyal, on the
other, referring the appeals to three Judge Bench - Held: The
observations made in Shyam Babu Verma and Saheb Ram
D Verma not to recover the excess amount paid to employee
were in exercise of extra-ordinary powers under Art. 142 of the
Constitution of India which vests the power in Supreme Court
tg pass equitable orders in the ends of justice - Whereas, in
Chandi Prasad Unival's case, a specific issue was raised and
E canvassed and the Court after taking into consideration
various decisions, laid down the law that even if by mistake
of employer amount is paid to employee and on a later date
if employer after proper determination of the same discovers
that excess payment is made by mistake or negligence, the
F excess payment so made could be recovered - Thus, the law
laid down in Chandi Prasad Uniya/'s case, no way conflicts
with the observations made in the other two cases -- The Court
is, therefore, of the considered opinion that the reference was
unnecessary and, as such, without answering the same, the
G matters are sent back to the Division Bench for its appropriate
disposal - Constitution of India, 1950 - Arts. 136 and 142.
CONSTITUTION OF /NOIA, 1950:
Arts. 136 and 142 - Scope of the ·two provisions and
H 228
STATE OF PUNJAB & ORS. v. RAFIQ MASIH (WHITE 229
WASHER)
difference between - Explained - Held: Distinctively, although A
the words employed under Art. 136 and Art. 142 speak of the
powers of Supreme Court, the former vests a plenary
jurisdiction in Supreme Court in the mater of entertaining and
hearing of appeals by granting special leave against any
judgment or order made by a court or tribunal in any cause B
or matter - The powers under Art. 136 are plenary to the extent
that they are paramount to the limitations under the specific
provisions for appeal contained in the Constitution or other
laws - It is a corrective jurisdiction that vests a discretion in
Supreme Court to settle the law clear -- It makes the law c
operational to make it a binding precedent for the future
instead of keeping it vague -- Thus, it declares the law, as
under Article 141 of the Constitution -- Art. 142, on the other
hand, is the exercise of jurisdiction to pass such enforceable
decree or order as is necessary for doing 'complete justice' 0
in any cause or matter - Art. 142 is supplementary in nature
and cannot supplant the substantive provisions -- The
directions issued under Art. 142 do not constitute a binding
precedent unlike Art. 141 - Service law.
Shyam Babu Verma and Ors. v. Union of India & Ors. E
1994 (1) SCR 100 = (1994) 2 sec 521 and Sahib Ram
=
Verma v. State of Haryana 1994 Suppl. (3) SCR 674 (1995)
Supp. 1 sec 18 and on the other hand, in Chandi Prasad
Uniyal and Ors. v. State of Uttarakhand & Ors. 2012 (7) SCR
=
307 (2012) 8 SCC 417 - referred to. F
Prem Chand Garg v. Excise Commissioner, U.P. 1963
Suppl. SCR 885 = AIR (1963) SC 996; Naresh Shridhar
Mirajkar v. State of Maharashtra, (1966) 3 SCR 744; A.R.
Antulay v. R.S. Nayak 1988 (1) Suppl. SCR 1 = (1988) 2 G
SCC 602 Supreme Court Bar Association v. Union of India
1998 (2) SCR 795 = (1998) 4 SCC 409; Ramakant Rai vs.
Madab Rai 2003 (4) Suppl. SCR 17 = 2003 (12) sec 395;
Union of India v. Kamai/ Singh 1994 (5) Suppl. SCR 587 =
(1995) 2 SCC 728; Indian Bank v. ABS Marine Products (P)
H
230 SUPREME COURT REPORTS [2014] 8 S.C.R.
A Ltd. 2006 (1) Suppl. SCR 52= 2006 5 SCC 72, Ram Pravesh
Singh v. State of Bihar 2006 (6) Suppl. SCR 512 = (2006) 8 ,
SCC 381 and in State of U.P. v. Neeraj Awasthi 2005 (5)
Suppl. SCR 906 = (2006) 1 sec 667 - relied on.
Case Law Reference:
B
1994 (1) SCR 700 referred to para 1
1994 (3) Suppl. SCR 674 referred to para 1
2012 (7) SCR 307 referred to para 1
c 1963 Suppl. SCR 885 relied on para 9
(1966) 3 SCR 744 relied on para 9
1988 (1) Suppl. SCR 1 relied on para 9
D 1998 (2) SCR795 relied on para 9
2003 (4) Suppl. SCR 17 relied on para 10
1994 (5) Suppl. SCR 587 relied on para 10
E 2006 (1) Suppl. SCR 52 relied on para 11
2006 (6) Suppl. SCR 512 relied on para 11
2005 (5) Suppl. SCR 906 relied on para 11
CIVIL APPELLATE JURISDICTION : Special Leave
F Petition (c) No. 11684 of2012
From the Judgment and Order dated 17.01.2011 in Writ
Petition No. 16277 of 2010 of the High Court of Punjab and
Haryana at Chandigarh.
G
WITH
CC Nos. 14663,20144 of 2010
CC Nos. 9303, 15876, 16190, 16326, 16327, 16350, 16309,
H 16325, 16303, 16548, 16723, 16594, 16580, 16582, 16850,
STATE OF PUNJAB & ORS. v. RAFIQ MASIH (WHITE 231
WASHER)
16904, 17204, 17193, 17201, 17192, 17388, 17534, 17507, A
17508, 17709, 17711, 17735, 7798, 17888, 17846, 17835,
118261, 18286, 18227, 18312, 18337,18310, 18423, 18536,
18527, 18526, 18525, 18524, 18535, 18628, 18630, 18767,
18784, 18805, 18802, 18796, 18769, 18857, 18834, 18960,
19116, 19236, 19527, 19590, 19552, 19556, 19580, 19594, B
19597, 19599, 19601, 19663, 19727, 19864, 19837,
20024,20022, 20048, 20291, 20454, 20794, 20891, 21915,
22256, 22255, 22257 of 2011
CC Nos.133, 178, 434, 887, 1147, 1166, 1168, 1188, 1200, C
1291, 1303, 1306, 1391, 1596, 1637, 1644, 1657, 1653, 1739,
1869, 1864, 1928, 1935,2209,2818,2798,2821,2832,6093,
6483, 6604, 6659, 6800, 6829, 10109, 12769, 13044, 13114,
13300 of 2012
CC Nos. 2335, 6861 of 2013 D
CC No. 3626 of 2014
S.L.P. (c) No. 30473, 33651, 35876 of 2011
S.L.P (c) No. 30751, 6692, 4822, 11690, 11702, 11693, E
11694, 11697, 11699, 11703, 11704, 11705,11706, 11709,
11707, 11710, 11712, 6632-6633, 26386, 26388, 26389,
26391, 26306, 26307, 26308, 28655, 28812, 28813, 28814,
28816, 28815, 28818, 28817, 28823, 28819, 28824, 28825,
-28827, 28828, 28829, 33343, 33345, 30246, 33347, 33350, F
33348, 33352, 33353,33354, 33356, 35328, 37149, 37151,
37152, 37153, 37154, 39202 of 2012
SLP (c) Nos. 21554, 15307, 519, 523, 524, 13023, 1107.2,
11068, 11069, 15852, 5765, 5821, 5753, 5810, 5838, 5751,
9907,9909,9912,9911,9914,9915,9913, 9913,9916,9918, G
10927, 10928, 10929, 10930, 10931, 10936, 10933,
10934, 10935, 10938, 10939, 10941, 10940, 10942, 10943,
13021, 14780, 14782, 15299, 15300, 20830, 20830, 15301,
15302, 15303, 15305, 19469, 17618, 20529, 16788, 18880,
21492 of 2013. H
232 SUPREME COURT REPORTS [2014] 8 '8.C.R.
A S.L.P No. 8086,8103 of 2014
L.N. Rao, ASG, Nikhil Nayyar, AAG, Jagdish Singh
Chhabram Joginder Sukhija, Anis Ahmed Khan, Ajay Pal,
Kuldip Singh, Naresh Bakshi, Rachana Joshi lssar, Vineet
Bhagat, Dr. Vipin Gupta, Ansar Ahmad Chaudhary, Dinesh
8
Verma, Subhasish Bhowmick, Balbir Singh Gupta, Namita
Chaudhary, Anil Kumar Tandale, Kanchan Kaur Dhodi, S.K.
Sabharwal, Sudhir Walia, Abhishek Atrey, Rahul Gupta, Sarad
Kumar Singhania, S.L. Aneja for the appearing parties.
C The Order of the Court was delivered
ORDER
1. These batch of matters are placed before us for
authoritative pronouncement on the apparent difference of
D opinion expressed on one hand in the cases of Shyam Babu
Verma and Ors. v. Union of India & Ors. (1994) 2 SCC 521
and Sahib Ram Verma v. State of Haryana (1995) Supp. 1
sec 18 and on the other hand, in Chandi Prasad Uniyal and
Ors. v. State of Uttarakhand & Ors. (2012) 8 SCC 417 .. The
E order of reference made by this Court reads as under:
"In View of an apparent difference of views expressed on
the one hand in Shyam Babu Verma and Ors. vs. Union
of/ndia & Ors. (1994) 2 SCC 521 and Sahib Ram Verma
F vs. State of Haryana (1995) Supp. 1 sec 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
G
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."
H
STATE OF PUNJAB & ORS. v. RAFIQ MASIH (WHITE 233
WASHER)
2. The issue in this matter pertains to the recovery of A
excess money from the pensionary benefit of the respondent-
white washer, on account of a wrong fixation of pay by the
Petitioner No. 4- The Executive Engineer. The respondent
approached the High Court by filing a writ petition. The question
of law for consideration before the High Court was: whether the B
Government is entitled to recover from an employee any
payment made in excess of what the employee is otherwise
entitled to, in the absence of any fraud or misrepresentation on
the part of the employee. The High Court relies on a Full Bench
decision, and directed not to recover the excess amount from c
the respondent.
3. We have heard Shri L.N. Rao, learned Additional
Solicitor General and the learned counsel for the respondents.
4. To answer the reference, the decisions need to be o
considered.
5. In Shyam Babu Verma's case (Supra), this Court while
observir:ig that the petitioners-therein were not entitled to the
higher pay scales, had come to the conclusion that since the
amount has already been paid to the petitioner, for no fault of E
theirs, the said amount shall not be recovered by the
respondent-Union of India. The observations made by this Court
in the said case are as under:
"Although we have held that the petitioners were entitled
F
only to the pay scale of Rs.330-480 in terms of the
recommendations of the Third Pay Commission w.e.f.
January 1, 1973 and only after the period of 10 years, they
became entitled to the pay scale of Rs.330-560 but as they
have received the scale of Rs.330-560 since 1973 due to
no fault of theirs and that scale is being reduced in the year G
1984 with effect from January 1, 1973, it shall only be just
and proper not to recover any excess amount which has
already been paid to them.
(emphasis supplied)." H
234 SUPREME COURT REPORTS [2014] 8 S.C.R.
A 6. In Sahib Ram Verma's case (Supra), this Court once
again held that although the appellant-therein did not posse?s
the required educational qualification, yet the Principal granting
him the relaxation, had paid his sal~ry on the revised pay scale.
This Court further observed that this was not on account of mis-
B representation made by the appellant but by a mistake
committed by the Principal. In a fact situation of that nature, the
Court was pleased to observe that the amount already paid to
the appellant need not be recovered. In the wqrds of the Court:
"Admittedly the appellant does not possess the required
c educational qualifications. Under the circumstances the
appellant would not be entitled to the relaxation. The
principal erred in granting him the relaxation. Since the
date of relaxation the appellant had been paid his salary.
on the revised scale. However, it is not on account of any
D misrepresentation made by the appellant that the benefit
.of the higher pay scale was given to him but by wrong
construction. made by the Principal for which appellant
cannot be held to be fault. Under the circumstances the
amount paid till date may not be recovered from the
E appellant."
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 p9wers under
F Article 142 of the Constitution of India which vest the power in
this Court to pass equitable orders in the ends of justice.
8. In Chandi Prasad Uniyal's case (Supra), a specific
issue was raised and canvassed. The issue was whether the
appellant-therein can retain the amount received on the basis
G of irregular/wrong pay fixation in the absence of any
misrepresentation or fraud on his part. The Court after taking
into consideration the various decisions of this Court had co.me
to the conclusion that even if by mistake of the employer the
amount is paid to the employee and on a later date if the
H employer after proper determination of the same discovers that
STATE OF PUNJAB & ORS. v. RAFIQ MASIH (WHITE 235
WASHER)
the excess payment is made by mistake or negligence, the A
excess payment so made could be recovered. While holding
so this Court observed at paragraphs 14 and 16 as under:
"14. We are concerned with the excess payment of public
money which is often described cs "taxpayers' money"
B
which belongs neither to the officers who have effected
overpayment nor to the recipients. We fail to see whey the
concept of fraud or misrepresentation is being brought in
such situations. The question to be asked is whether
excess money has been paid or n'ot, may be due to a bona
fide mistake. Possibly, effecting excess payment of public C
money by the government officers may be due to various
reason 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 D
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 the authority of
law can always be recovered barring few exceptions of E
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.
16. The appellant in the appeal will not fall in any of these F
·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. G
In such circumstances, we find no reason to interfere with
the judgment of the High Court. However we order that
excess payment made be recovered from the appellants
salary in 12 equal monthly instalments."
9. In our view, the law laid down in Chandi Prasad Uniyal's H
236 SUPREME COURT REPORTS [2014] 8 S.C.R.
A case, no way conflicts with the observations made by this Court
in the other two cases. In those decisions, directions were
issued in exercise of the powers of this Court under Article 142
of the Constitution, but in the subsequent decision this Court
under Article 136 of the Constitution, in laying down the law had
B dismissed the petition of the employee. This Court in a number
of cases had battled with tracing the contours of the provision
in Article 136 and 142 of the Constitution of India. Distinctively,
although the words employed under the two aforesaid provision
speak of the powers of this Court, the former vest a plenary
c jurisdiction in supreme court in the matter of entertaining and
hearing of appeals by granting special leave against any
judgment or order made by a Court or Tribunal in any cause or
matter. The powers are plenary to the extent that they are
paramount to the limitations under the specific provisions for
appeal contained in the Constitution or other laws. Article 142
0
of the Constitution of India, on the other hand is a step ahead
of the powers envisaged under Article 136 of the Constitution
of India. It is the exercise of jurisdiction to pass such
enforceable decree or order as is necessary for doing·
'complete justice' in any cause or matter. The word 'complete
E justice' was fraught with uncertainty until Article 142 of the
Constitution received its first interpretation in Prem Chand
Garg v. Excise Commissioner, U.P., AIR (1963) SC 996 which.
added a rider to the exercise of wide extraordinary powers by
laying down that though the powers are wide, the same is an
F ancillary power and can be used when not expressly in conflict
with the substantive provisions of law. This view was endorsed
by a Nine-Judges Bench in Naresh Shridhar Mirajkar v. State
of Maharashtra, (1966) 3 SCR 744 reiterated by a Seven
Judge Bench in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC ,
G 602 and finally settled in the Supreme Court Bar Association
v. Union of India, (1998) 4 SCC 409.
10. Article 1.36 of the Constitution of India, confers a wide
discretionary power on the Supreme Court to interfere in
H suitable cases. Article 136 is a special jurisdiction and can be
STATE OF PUNJAB & ORS. v. RAFIQ MASIH (WHITE 237
WASHER)
best described in the words of this Court in Ramakant Rai v. A
Madab Rai, (2003) 12 SCC 395, "It is a residuary power, it is
extraordinary in its amplitude, its limits when it chases injustice,
is the sky itself'. Article 136. of the Constitution of India was
legislatively intended to be exercised by the Highest Court of
the Land, with scrupulous adherence to th~ settled judicial B
principle well established by precedents in our jurisprudence.
Article 136 of ttie Constitution is a corrective jurisdiction that
vest a discretion in the Supreme Court to settle the law clear
and as forthrightly forwarded in the case of Union of tndia v.
·Kamai/ Singh, (1995) 2 SCC 728, it makes the law operational c
to make it a binding precedent for the future instead of keeping
it vague. In short, it declares the law, as under Article 141 of
the Constitution.
11. Article 142 of the Constitution of India is supplementary
1
in nature and cannot supplant the substantive provisions, though D
they are not limited by the substantive provisions in the statute.
It is a power that gives preference to eq~ity over law. It is a
justice oriented approach as against the strict rigors of the law.
The directions issued by the court can normally be categorized
into one, in the nature of moulding of relief and the other, as E
the declaration of law.'Declaration of Law' as contemplated in
Article 141 of the Constitution: is the speech express or
necessarily implied by the Highest Court of the land. This Court
in the case of Indian Bank v. ABS Marine Products (P) Ltd.,
2006 5 SCC 72, Ram Pravesh Singh v. State of Bihar, (2006) F
SCC 381 and in State of UP. v. Neeraj Awasthi (2006) 1
CC 667, has expounded the principle and extolled the power
Article 142 of the Constitution of India to new heights by
ying down that the directions issued under Article 142 do not
onstitute a binding precedent unlike Article 141 of the G
onstitution of India. They are direction issued to do proper
stice and exercise of such power, cannot be considered as
w laid down by the Supreme Court under Article 141 of the
onstitution of India.The Court have compartmentalized and
fferentiated the relief in the operative portion of the judgment H
238 SUPREME COURT REPORTS [2014] 8 S.C.R.~
A by exercise of powers under Article 142 of the Constitution as
against the law declared. The directions of the Court under
Article 142 of the Constitution, while moulding the relief, that
relax the application of law or exempt the case in hand from.
the rigour of the law in view of the peculiar facts arid
B circumstances do not comprise the ratio decidendi and
therefore lose its. basic premise of making it a binding I
precedent. This Court on the qui vive has expanded the
horizons of Article 142 of the Constitution by keeping it outside
the purview of Article 141 of the Cpnstit!Jtion and by declaring
c it a direction of the Court that changes its complexion with the
peculiarity in the facts and circumstances of the case.
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
D 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
E opinion that reference was unnecessary. Therefore, without
answering the reference, we send back the matters to the
Division Bench for its appropriate disposal.
Ordered accordingly.
F Rajendra Prasad Matters to Divisi6n Bench
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