- (1.) AGGRIEVED by the impugned order dated 10th March, 2006 (Annexure-1 to the writ petition) and consequential order dated 29.6.2006 whereby pay fixation of the petitioner w.e.f. 1 st July, 1986 has been re-fixed on the ground that it was earlier wrongly fixed and direction has also been issued to recover the amount allegedly paid in excess to the petitioner on account of aforesaid wrong fixation.
(2.) LEARNED counsel for the petitioner contended that there was no fraud or misrepresentation on his part. The mistake, if any, was committed by the respondents on their own and in these circumstances after such a long time and that too after his retirement no recovery of the amount already paid, can be made, though the rectification in respect to fixation can always be done. He has placed reliance on the decision in B.N. Singh v. State of U.P. and another, 1979 ALJ 1184 and Shyam Babu Verma and another v. Union of India and others, 1994 (2) SCC 521. Respondents have filed counter affidavit and on the basis of the averments contained therein, learned Standing Counsel submitted that there was wrong fixation of pay w.e.f. 1st July, 1986 and after retirement of the petitioner when his retiral dues were sought to be calculated aforesaid mistake was detected and accordingly the impugned order has been issued. However, he could not show any pleading of the respondents that the aforesaid error was on account of any fraud and misrepresentation on the part of the petitioner. We have heard learned counsel for the parties and perused the record. Learned counsel for the petitioner could not show that in law he was rightly paid by the respondents and he was entitled for payment of salary in the manner it was fixed w.e.f. 1.7.1986. However, the salary and other benefits paid to the petitioner after fixation w.e.f. 1.7.1986 is not on account of any fraud or misrepresentation on the part of the petitioner. If there is any error or mistake committed by the respondents, they may rectify the same but cannot recover the alleged excess amount already paid to the petitioner since the same has already been consumed in catering to the need of himself and his family members. Moreover, in view of the law laid down in B.N. Singh v. State of U.P. and another, 1979ALJ 1184; Shyam Babu Verma and another v. Union of India and others, 1994 (2) SCC 521; Gabriel Saver Fernandes and others v. State of Karnataka and others, 1995 Suppl. (1) SCC 149; Mahmood Hasan v. State of U.P, JT 1997 (1) SC 353; State of Kamataka-and another. Mangalore University Non-Teaching Employees'Association and others, 2002 (3) SCC 302; Surya Deo Mishra v. State of U.P., 2006 (1) UPLBEC 399; Purushottam Lal Das and others v. State of Bihar and others, 2006(10) SCALE 1999, such amount cannot be recovered.
(3.) IT has further been contended that in any case, no order adverse to the interest of the petitioner could be passed without affording any opportunity and therefore, the impugned order is in utter violation of principles of natural justice. In our view, once learned counsel for the petitioner could not show that the salary and other benefits which were paid to him could be sustained having sanction of law under any Rules or Regulations applicable to the petitioner, in the circumstances, it cannot be said that salary and other benefits paid to the petitioner were being paid rightly and the same could not have been corrected/rectified by the respondents by passing an appropriate order. If there is any error or mistake committed by the respondents in fixation of pay or payment of salary to its employees such mistake can always be rectified and principle of estoppel or waiver etc. shall not apply in such cases. Similarly in such a case, even the principles of natural justice shall not be attracted where the facts and legal position is not disputed, the action or order of the authority cannot be said to be illegal for mere non-compliance of principles of natural justice. But where simultaneously it is found that an employee has been given certain monetary benefits or salary by the employer on its own or by its own mistake and for which, the employee is not responsible or has not played any fraud or misrepresentation, the amount paid in excess on account of such lapse or mistake of employer should not be recovered from the employee, particularly after a long time. IT is worthy to notice that relief, i.e., restraining recovery of excess amount is granted by Courts not because of any right in the employee but in equity, in exercise of judicial discretion, to relieve the employee from the hardship that he would suffer if recovery is implemented. Looking to this aspect of the matter in Col. (Retd.) B.J. Akkara v. Government of India and others, JT 2006(9) SC 125, the Apex Court has observed: "Such relief, restraining recovery back of excess payment, is granted by Courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardships that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess, payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, Courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery." In the instant case, after more than a decade the amount of alleged excess payment is being sought to be recovered from the petitioner, though it is not disputed that for the said payment the petitioner is not at fault and there is no allegation of fraud or misrepresentation.;