In Ramakant Rai v. Madan Rai, the Supreme court mentioned Article 136 of the Indian Constitution as “……It is a residuary power; it is extraordinary in its amplitude, its limits when it chases injustice, is the sky itself……..”
The Apex Court has in many of its judgments chosen equity over law and used its unlimited powers under Sections 136 and 142 of the Constitution of India to quash the orders of recovery that was on and off passed by the State Governments against its employees on lieu of excess payments made to them by the government’s mistake. This was a pressing issue of governmental negligence or lack of vigilance, to say the least. Employees would usually spend their money and after a long time, they were asked to pay such amounts back to the government and many times those amounts were just recovered from their retirement pension/gratuity amounts just like that.
Finally, the judgment of the Apex Court in the case of State of Punjab v Rafiq Masih came as a knight in shining armor for such frustrated and helpless employees who were subjected to these recoveries, and things changed forever.
The Case dealt with orders of recovery made by the State Government of Punjab against the appellants as the related amount was mistakenly given to those appellants as an excess payment by the government. The mistake happened in the calculation of the pay scale of some employees and some were mistakenly given the charges of a higher post and paid accordingly, while they deserved the work of an inferior post and the related pay. The Court framed the issue that
“Whether all such employees against whom the recovery in lieu of excess payment was made, should be exempted from such requirement of reimbursement to the employer?”
Court formulated a few scenarios of hardship to the employee when the employer’s right to recover such excess payment was far outweighed by the hardship caused to the employee due to such recovery. Court considered Sahib Ram v Union of India, Syyed Abdul Qadir v State of Bihar and a plethora of other relevant judgments and juiced out the following list of instances when the recovery of the excess payment amount can’t be done from the government employees:
- Group C and Group D employees;
- The employees who have retired or are due to retire within a year from the order of the recovery;
- The employee who has been given excess payment for more than five years;
- The recovery from an employee who has been mistakenly assigned to discharge the functions of a superior post and was paid accordingly, when such an employee was due to work in the inferior post;
- In any other situation, when the court thinks that the recovery shall be extremely harsh and arbitrary to the employee.
So, apart from the said four conditions where there is a blanket ban on recovery, the court has set this precedent and also left it upon the discretion of the courts to quash or not quash a recovery order judging from the extreme hardship test. This test has to be taken through the filter of social justice mentioned in our Directive Principles of State Policy and Preamble, India being a welfare state.
The judgment has no doubt given a shake to the Government of India and nationwide the states have been issuing Circulars through their Finance departments to all the respective departments of their state, ordering them the compliance with this judgment and related guidelines. So, the law has set a clear precedent, there is no doubt about it. Although sadly the terrible cancer of corruption this country is sick from, has equally spread to the grassroots and is leading to a huge number of illegal recoveries happening even after this noble pronouncement by the highest court. The clerks who deal with all the paperwork relating to the release of pension, gratuity and the calculation of the same do not in the first place release these post-retirement benefits easily. Moreover even being aware of the respective state government circulars and this judgment, they still make the recoveries that are contemptuous of ‘Rafiq Masih’. There are instances when the recoveries are challenged before High Courts and the courts order the respective departments a re-look at the aggrieved situation, even then the said officers do not amend their order of recovery.
Moreover, the guidelines issued in Chandi Prasad Uniyal v State of Uttarakhand are also hardly ever followed before making the order of recovery. Government employees may times get an idea beforehand that they might be getting an extra payment due to a possible miscalculation and resultantly they have approached the clerks or other officers of their department to make them aware of the same, but they hardly listen unless they get paid some convenience fee from these government employees. Many a time, they don’t even release the post-retirement benefits of these employees unless they sign the NOC for the illegal recoveries they make. These NOCs are used by the government later to defend their illegal recoveries or just to buy some more time in the litigation by making this completely irrelevant argument of the consent of the employee for such recovery through NOC in the court. By the way, such mechanical consents don’t amount to anything in law and can never be used to do something which the courts have themselves prohibited. It’s like a forced waiver of rights that is tried to be shoved on the government employees by the government itself, which has no value in the eyes of law.
Therefore, this extremely depressing blasphemous, and contemptuous behavior at every stage of the proceedings revolving around recoveries is still being done in huge numbers throughout the nation. Although the litigation has also increased around that and many times the respective orders of recoveries are quashed and these hardworking government employees get their money back as well but these corruption-infested, greed-driven contemnors of the highest courts of India are still not deterred as they should be by now. The courts may be quashing the orders of illegal recoveries but they are not imposing enough penalties or enough strong disciplinary action on the contemnors so as to make these contemnors’ hearts pounce with fear. And till the time judiciary keeps on being soft on these contemnors, “Rafiq Masih” will keep on failing to deliver ‘Complete Justice’ to the people of its own dear country. And the result will continue to be the continuation of the status quo i.e. this organized extortion at the mass level, organized by the government itself in the first place, targeting their own hardworking employees who have probably given all their lives to serve it.
The Apex Court should start setting the precedent of punishing hard the contemnors of ‘Rafiq Masih’ aka the government officials or any other person who is directly or indirectly involved in promoting, aiding in, or receiving such illegal recoveries, in violation of the said judgment of the court. Such punishment can be made in many ways but the most appropriate way here would be initiating contempt proceedings against such people and penalizing them with really huge amounts of fines. Such amounts should be at least equal to the amount recovered illegally by those persons. This will really create deterrence among the government officials and clerks who are in some way or the other often involved in making such illegal recoveries, going again and again in contradiction with the apex court’s pronouncement. And once the apex court starts doing this, high courts will certainly catch up sooner or later. The country badly needs this custom of imposition of hard punishment to the contemnors if we want to create serious deterrence among such contemnors or better we call them extortionists, and the time to begin this custom is right now.
Author(s) Name: Ayush Pandey (TERI SAS, New Delhi)
 Constitution of India 1950, art. 136
 Ramakant Rai v Madan Rai (2003) 12 SCC 395
 Constitution of India 1950, art. 136
 Constitution of India 1950, art. 142
 State of Punjab v Rafiq Masih (2015) SCC 1267
 Sahib Ram v Union of India (1995) Supp. 1 SCC 18
 Syed Abdul Qadir v State of Bihar (2009) 3 SCC 475
 Chandi Prasad Uniyal v State of Uttarakhand (2012) 8 SCC 417