(Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the entire records pertaining to the impugned order of recovery passed by the 1st respondent in Proc.No.145/2020, dated 17.06.2020 and quash the same as illegal and consequently direct the respondents 1 to 3 to repay the petitioner the entire amount Rs.5,96,388/- recovered from him within a time limit that may be stipulated by this Court.)

G.R. Swaminathan, J.

1. Heard both sides.

2. The writ petitioner joined the Judicial Ministerial Service as Office Assistant on 09.07.1993. He became Junior Bailiff on 23.01.1995. He was given Selection Grade on 02.02.2005. He was made as Senior Bailiff on 28.07.2006. He was promoted as Junior Assistant on 11.06.2013. He became as an Assistant on 05.01.2019. He retired from service on 31.03.2020. At the time of retirement, it was noticed that his Selection Grade Pay was erroneously fixed and that the petitioner had drawn excess pay to the tune of Rs.5,96,388/-. Hence, this amount was ordered to be withheld from the writ petitioner's DCRG. Proceedings dated 17.06.2020 were issued to that effect by the first respondent herein. Challenging the same, this writ petition has been filed.

3. The learned counsel appearing for the writ petitioner reiterated all the contentions set out in the affidavit filed in support of writ petition. He pointed out that the issue raised in this writ petition is no longer res integra. According to him, the principles regarding recovery of excess pay have been laid down by the Hon'ble Supreme Court in the celebrated White Washer case reported in (2015) 4 SCC 334 (State of Punjab and Others Vs. Rafiq Masih (White Washer). Paragraph No. 18 of the said decision reads as follows:-

               “18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

               (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

               (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

               (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

               (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

               (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”

The learned counsel pointed out that in the case on hand, the so-called excess payment had been made right from 02.02.2005. Recovery is in respect of amounts paid beyond a period of five years. Therefore, the learned counsel for the petitioner would state that the directions set out in Clause 1, 2 and 3 of the White Washer are applicable. He also added that in respect of similarly placed retired court employees, this Court had granted relief. He relied on the following rulings:-

               (i) W.P.(MD)No.13077 of 2019, dated 17.10.2023 (M.Jaganathan Vs. The Registrar General, Madras High Court, Chennai – 104 and Others) and

               (ii) W.P.(MD)No.10081 of 2026, dated 17.04.2026 (Varatharajan Vs. The Additional Registrar General, Madras High Court, Madurai Bench, Madurai and Others)

               (iii) W.A.(MD)Nos.693 and 694 of 2022 dated 08.01.2025 (M.Basheer Ahamed Vs. The General Manager, Southern Railway, Park Town, Chennai – 600 003 and Others).

4. Per contra, the learned standing counsel for the first respondent as well for the learned standing counsel for the Accountant-General submitted that the petitioner knew fully well that his pay was erroneously fixed when he was conferred Selection Grade in the post of Junior Bailiff and that the such pay that was paid in excess ought to be recovered. The standing counsel for the Accountant General relied on the decision of the Hon'ble Supreme Court reported in (2012) 8 SCC 417 (Chandi Prasad Uniyal Vs State of Uttarakhand) and called upon this Court to sustain the impugned order and dismiss the writ petition.

5. We carefully considered the rival contentions and went through the materials on record. The question regarding recovery of excess pay was considered in a number of decisions by the Hon'ble Supreme Court. But following White Washer decision, the High Courts have been leaning against recovery. Before White Washer case in Chandi Prasad Uniyal Vs State of Uttarakhand (2012) 8 SCC 417, the Hon'ble Supreme Court held as follows:-

               “16. We are concerned with the excess payment of public money which is often described as “tax payers money” which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. 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 Government officers, may be due to various reasons 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 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.”

When White Washer case was first taken up, the Hon'ble Division Bench of the Supreme Court felt that the law laid down in Chandi Prasad Uniyal conflicted with the earlier rulings of the Supreme Court and hence, the matter had to be resolved by a Larger Bench. A reference was made accordingly. But the Larger Bench in the order reported in (2014) 8 SCC 883 (State of Punjab and Others Vs. Rafiq Masih (White Washer) held that the reference was unnecessary. It was noted that in Chandi Prasad Uniyal, the law was laid down, relief was granted in earlier cases by invoking the power under Article 142 of the Constitution to render complete justice. Paragraph No.8 of the said order reads as follows:-

               “8. 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 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 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 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 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 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 602 and finally settled in the Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409.”

After the matter went back to the Hon'ble Division Bench, certain principles to govern recovery were laid down and they have been extracted supra.

6. In our respectful opinion, Chandi Prasad Uniyal and White Washer do not go together. White Washer is a subsequent decision. We called upon the learned counsel for the petitioner to make a submission as to whether Chandi Prasad Uniyal was discussed and departed from in White Washer. The learned counsel for the petitioner could not draw our attention to any passage where Chandi Prasad Uniyal has been discussed and dealt with.

7. In White Washer, there is a reference to an earlier three Judges Bench decision of the Hon'ble Supreme Court reported in (2009) 3 SCC 475 (Syed Abdul Qadir v. State of Bihar). The Hon'ble Supreme Court in the aforesaid decision had held that if excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, in that event, recovery cannot be made.

8. But no such situation arose in the case on hand. There was no application of any wrong principle or erroneous interpretation. On the other hand, the very fixation of pay upon conferment of selection grade in the post of Junior Bailiff was downright wrong. The writ petitioner was originally in the pay band of Rs.3050 - 4900. Upon conferment of selection grade, he would be entitled to additional increments. The upper end of the pay band would remain the same. In other words, the petitioner's basic pay would have moved to Rs.3200/- from Rs.3050/-. But the petitioner's pay band was wrongly fixed as Rs.4000 – 6000. This was too steep a jump and it could not have escaped the petitioner's attention. He obviously would have known that he had been erroneously fixed in a higher pay band. During the relevant time, the post of Senior Bailiff was in the pay scale of Rs.3200-85-4900. The post of Junior Assistant was also in the same pay scale. Therefore, a selection grade Junior Bailiff could not have placed in the pay scale above that of the promotional post ie., Senior Bailiff and Junior Assistant.

9. ''Do not covet'' is a upanishadic injunction. Our tradition mandates that we should not hold on to something to which we are not entitled. One can only retain the fruits of one's honest labour. Morality demanded that the petitioner on his own had informed the employer about the wrong fixation. But then, the petitioner chose to happily keep quiet. This was clearly immoral. The petitioner cannot plead ignorance. In writ jurisdiction, a considerable chunk of cases are service matters. Their volume was so high that Administrative Tribunals were constituted and conferred with exclusive jurisdiction. Section 114 of the Indian Evidence Act enables us to make presumptions regarding normal human conduct. Every Government employee is so particular about increments and his pay. He will not keep quiet if he is given lesser pay. Only if the employee is so naïve, he would not have noticed that he had been paid in excess. In any event, we are not naïve to believe that the petitioner was so innocent as not to have found out that his pay had been wrongly fixed on the higher side.

10. We go to a shop. The shopkeeper by mistake gives excess amount as change. It is our duty to go back and return it to him. We are in the age of digital transactions. Sometimes by mistake, amounts could be wrongly credited to our account. It would be an offence if we appropriate them for our benefit. In such matters, even if the employee had not made any false representation or committed fraud, he would not be justified in retaining it. That is why, in Chandi Prasad Uniyal, it was remarked that they are irrelevant considerations. There could be situations when the employee might genuinely believe that he had been paid what he is entitled. Those cases would attract White Washer principles. But if a reasonable person can discover very easily that he has been paid in excess and he chooses to retain the benefit unjustly conferred on him, White Washer principles will not apply. The Hon'ble Supreme Court in almost all the decisions held that the rule against recovery is more an equitable rule and that the employee has no legal right as such. It is well settled that a person who seeks equity must do equity. The conduct of a person invoking writ jurisdiction must be free of any kind of blame. One whose hands are sullied is not entitled to any indulgence at the hands of this court.

11. Since we have given a definite finding that the petitioner knew fully well that he had been paid in excess, we propose to apply the law laid down in Chandi Prasad Uniyal in the light of the three Judges Bench in the case of Syed Abdul Qadir v. State of Bihar. White Washer principles were laid down by a two Judges Bench. Chandi Prasad Uniyal is also by a two Judges Bench. It was endorsed by a Three Judges Bench in White Washer reference. Syed Abdul Qadir v. State of Bihar is by a Three Judges Bench. As already mentioned, the conduct of the petitioner cannot be lost sight of as he is invoking the discretionary jurisdiction of this Court.

12. For the foregoing reasons, we sustain the order impugned in the writ petition and the writ petition stands dismissed. No costs.