Sudhir Agarwal, J. - (1.) CONSIDERING the pure legal submission advanced by learned counsel for the petitioner, learned Standing Counsel stated that he does not propose to file any counter affidavit but would make oral submissions and the writ petition may be disposed of finally at this stage under the Rules of this Court, hence I proceed accordingly. The Writ petition is directed against the order dated 14.11.2012 whereby certain amount is sought to be recovered from petitioners alleging that they have been paid the aforesaid amount in excess to what actually they were entitled and payable.
(2.) THE case of petitioner is that he has not been paid any amount as alleged in excess inasmuch whatever was actually due and payable, has been paid and, therefore, entire recovery is wholly illegal and without any authority of law. It is stressed that the impugned order has been passed without issuing any show cause notice or giving opportunity to petitioner and, therefore, it is in utter violation of principles of natural justice. Learned counsel for petitioner further urged that had the petitioner been afforded opportunity, he would shown to the authorities concerned itself, that, there is no error as alleged, and, no amount has been wrongly or excessively paid, and, therefore, no recovery is permissible or desirable. It is lastly contended that in any case, the amount received by petitioner, allegedly in excess, cannot be recovered since there is no element of fraud or misrepresentation on his part and, therefore, in view of various authorities of this Court and the Apex Court, no recovery can be given effect. In substance, there are two submissions, which have to be considered by this Court: (1) Whether recovery of an amount, alleged to have been paid in excess, to an employee can not be affected by the employer, unless the (the employer) can show that there is an element of fraud or misrepresentation on the part of employees concerned. In other words, if there is no allegation of fraud or misrepresentation on the part of employee, whether an amount, paid in excess to an employee, can be recovered? (2) Where the order of recovery has been passed, without issuing any show cause notice or giving opportunity, can it sustain?
(3.) I propose to consider question no. 1 first. Petitioner has sought to fortify his submissions that unless there is an element of fraud or misrepresentation on the part of concerned employee, a recovery of alleged excess paid amount cannot be effected, placed reliance on certain authorities of this Court as also the Apex Court which are a Division Bench decision of this Court in B.N. Singh Vs. State of U.P. and another, 1979 ALJ 1184, a Full Bench judgment in Surya Deo Mishra Vs. State of U.P. : 2006(1) UPLBEC 399 and Apex Court's decisions in Shyam Babu Verma & Anr. Vs. Union of India & Ors. : 1994(2) SCC 521, Gabriel Saver Fernandes & Ors. Vs. State of Karnataka & Ors. : 1995 Suppl. (1) SCC 149, Mahmood Hasan Vs. State of U.P. : JT 1997(1) SC 353, State of Karnataka & Anr. Vs. Mangalore University Non -Teaching Employees' Association & Ors. : 2002(3) SCC 302, Purushottam Lal Das & Ors. Vs. State of Bihar & Ors. : 2006(10) SCALE 1999. There are some other judgments of this Court which have followed the above authorities.;