Conflicting Decisions – No – whether the excess payment can be recovered paid by the fault of employer / can not be refunded, paid due to bonafide mistake of employer – Excess payment made to employees for no fault of them – can not be recoverable by employer after belated stage – Excess payment received by Employee -liable to be refunded like recovery of excess tax payments as no one can enrich wrongfully – Apex court held that former decisions is an equitable relief under Art.142 ,given under facts and circumstances of that case and is not binding precedent and Apex court further held that the later decisions is a declaration of law under Art.136 is binding on all as no one can enrich wrongfully and when it came to know his knowledge , he is liable to refund the same like income tax department and as such returned the reference and remanded the case to decided as per law =
“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.”
Shyam Babu Verma and Ors. vs. Union of India & Ors. (1994) 2
SCC 521
“Although we have held that the petitioners were entitled 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 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).”
Sahib Ram Verma vs. State of Haryana (1995) Supp. 1 SCC 18;
“Admittedly the appellant does not possess the required
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
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 appellant.”
Chandi Prasad Uniyal and Ors. vs. State of Uttarakhand & Ors. (2012) 8 SCC 417,
“14. We are concerned with the excess payment of public money which
is often described as “taxpayers’ money” 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 not, may be due to a bona fide mistake. Possibly, effecting excess
payment of public 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 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 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 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 that excess payment made be recovered from the appellants
salary in 12 equal monthly instalments.”
In our view, the law laid down in Chandi Prasad Uniyal’s 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 dismissed the petition of the employee.
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) 8 SCC 381 and in State of U.P. v.
Neeraj Awasthi (2006) 1 SCC 667, has expounded the principle and extolled
the power of Article 142 of the Constitution of India to new heights by
laying down that the directions issued under Article 142 do not constitute
a binding precedent unlike Article 141 of the Constitution of India. They
are direction issued to do proper justice and exercise of such power,
cannot be considered as law laid down by the Supreme Court under Article
141 of the Constitution of India. The Court have compartmentalized and
differentiated the relief in the operative portion of the judgment 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 and circumstances do not comprise the ratio decidendi and
therefore lose its basic premise of making it a binding 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
Constitution and by declaring 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 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.
advocatemmmohan 
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