ALL MANIPUR RETIRED LOWER PRIMARY Vs. STATE OF MANIPUR
HIGH COURT OF MANIPUR
All Manipur Retired Lower Primary
STATE OF MANIPUR
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RAMALINGAM SUDHAKAR, J. -
(1.) Heard Mr. L. Raju, learned counsel appearing for the petitioners, Mr. S. Nepolean, learned G.A. appearing for the State and Ms. Kramasori, learned counsel appearing for the Accountant General, Manipur.
(2.) Prayer in W.P.(C) No. 572 of 2006 reads as follows :
"To quash the Paragraph No. 5 of the impugned office letter dated 8th March 2006 (Annexure - A/3). And To direct the respondents not to recover arrear pension /pay from the 52 members of the petitioners association in terms of the impugned office letter dated 08.03.2006."
Prayer in W.P.(C) No. 708 of 2006 reads as follows :
"To quash the Paragraph No. 5 of the impugned letter dated 8th March, 2006 (Annexure - A/17). And To direct the respondents not to recover arrear pension/pay from the petitioners in terms of the impugned office letter dated 08.03.2006."
Prayer in W.P.(C) No. 925 of 2006 reads as follows :
"(ii) To quash paragraph No. 5 of the impugned office letter No. dated 8.3.06 (A/10).
(iii) To direct the respondents no to recover arrear pension/pay from the petitioners in terms of the impugned office letter dated 8.3.2006, till disposal of the case."
Prayer in W.P.(C) No. 988 of 2006 reads as follows :
"To quash the impugned office letter dated 15th April, 2006 Annexure - A/3(a) and paragraph No. 5 of the impugned office letter dated 8th March, 2006 Annexure - A/3. And To direct the respondents not to recover arrear pension /pay from the 347 members of the petitioner association in terms of the impugned office letter dated 8.3.2006 and 15th April, 2006."
(3.) The proceeding dated 08.03.2006 was issued by the Commissioner (Finance), Government of Manipur to the Accountant General, Manipur, Imphal. In this case along with several other cases, the issue relates to excess payment of pay and allowances and consequential pensionary benefits etc. which have been made in favour of the Head Pandits/Head Masters of L.P. Schools on the basis of non-existing pay scales. Some of the benefits claimed by the retired teachers on the basis of the higher scale have been granted irregularly. However, subsequently it has been realized that on the basis of the report of the Department of Education (S), Government of Manipur that there is no post of Head Master in the L.P. School at the time of retirement of the teachers. Therefore, the Department had taken a decision in the proceeding dated 08.03.2006 to recover the excess payment made to the retired teachers in the form of higher pension. Batch of this writ petition was filed and an interim order was passed. However, in one case (i.e.) W.P.(C) No. 954 of 2006, the learned Single Judge passed an order dated 26.10.2009 and set aside the proceeding dated 08.03.2006 to the extent not to recover the excess payment; against which, a writ appeal being W.A. No. 3 of 2006 was filed and the learned Division Bench passed the following order on 27.07.2018 :
" Heard Mr. N. Ibotombi, learned senior counsel assisted by Ms. Savitri, learned counsel for the State appellant.
 No one is present for the writ petitioners, respondents herein in spite of service of notice upon them and the name of the counsel being shown in the cause list.
 The present appeal has been preferred against the order dated 26.10.2009 by which the learned Single Judge quashed the portion of the impugned order dated 08.03.2006 whereby the recovery of the excess payment has been ordered by the Commissioner (Finance), Government of Manipur.
 It has been submitted by Mr. N. Ibotombi, learned senior counsel for the State appellant that there has been a huge problem of withdrawal of excess money illegally through enhanced pay and allowances because of which the authorities after due consideration passed the aforesaid impugned order dated 08.03.2006 for recovery of excess payment.
 In this regard, Mr. N. Ibotombi, learned senior counsel has drawn the attention of this Court to the criminal case being FIR No. 71(4) 05 2005 Lamphel P.S. u/s 420, 468, 120B of the IPC registered in connection with the fraudulent drawal of arrears and pensions, in which a large number of official and persons were arrested. He, accordingly submits that, if this impugned order passed by the learned Single Judge is upheld, it would disable the State Government from recovering excess pay and allowance illegally withdrawn.
 As regards the issue relating to recovery of excess drawal of salary and allowances by the employees, it has been settled by the Apex Court and as recorded in the impugned judgment, in Syed Abdul Qadir and Ors. Vs. State of Bihar, (2009) 3 SCC 475 in which it has been upheld that excess payment ought not to be recovered unless the concerned officials or the beneficiaries had contributed toward excess payment by way of collusion or mis-representation or by practicing fraud etc.
 Mindful of the aforesaid legal position, it would not be permissible for the authorities to direct recovery of excess payment unless the contribution or the participation of the employees concerned in the excess withdrawal is established.
 After considering the materials on record and the peculiar facts as pleaded and also as reflected in the Memo of Appeal, we modify the order passed by the Ld. Single Judge by holding that the recovery of excess payment as directed by the Commissioner (Finance) can be allowed, if the writ petitioners are found to have been involved or participated/contributed to the said excess withdrawal.
 Accordingly, the present writ appeal is allowed by upholding the validity of the order dated 08.03.2006 passed by the Commissioner (Finance) with the condition that, if such recovery of excess payment as ordered by the Commissioner (Finance) is to be effected against the petitioners, it can be done if the participation or contribution of the employees concerned/petitioners concerned is established." ;
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