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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that former decisions is an equitable relief under Art.142 ,given under facts and circumstances of that case and is not binding precedent and Apex court further held that the later decisions is a declaration of law under Art.136 is binding on all as no one can enrich wrongfully and when it came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 = STATE OF PUNJAB & ORS. PETITIONER(S) VERSUS RAFIQ MASIH (WHITE WASHER) RESPONDENT(S) = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41794

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that former decisions is an equitable relief under Art.142 ,given under facts and circumstances of that case and is not binding precedent and Apex court further held that the later decisions is a declaration of law under Art.136 is binding on all as no one can enrich wrongfully and when it came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.”

Apex court held that 

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.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41794

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