- (1.) Heard learned Counsel for the parties. In this writ petition, the petitioner is challenging validity of recovery statement (Annexure-7) passed by the Accounts Officer (O & M), Ajmer Vidhyut Vitaran Nigam Limited, Banswara and prayed that respondents may be directed to make fixation of his pay in the regular pay scale as granted by him vide Annexure-1 allowing the benefit of re-option and make payment of proper retrial benefits including gratuity, commutation, pension etc. with all consequential benefits including interest @ 12% per annum. Learned Counsel for the petitioner submits that if any amount is paid to the petitioner by the respondents themselves, in which, there is no misrepresentation or fraud committed by the employee, then that amount cannot be recovered from him after lapse of more than 20 years because it is against the principles of natural justice. In support of his contention, learned Counsel for the petitioner invited attention of this Court towards the judgment rendered by the Hon'ble Supreme Court in Syed Abdul Qadir and others v. State of Bihar and others, 2009 3 SCC 475 and submitted that no recovery can be made by the respondents from the petitioner's retrial benefits because whatever benefits were granted by the respondents were in accordance with law and without any misrepresentation or fraud by the petitioner, therefore, while quashing the recovery statement, respondents may be directed to make proper fixation of the petitioner's salary as per pay scale and grant all retrial benefits.
(2.) Learned Counsel for the respondents vehemently opposed the prayer and submits that in the event of inquiry of entire record at the time of finalization of retrial benefits if it is found that certain amount has wrongly been paid to the petitioner due to wrong acceptance of re-option that can be recovered at any stage, therefore, there is no illegality in making correct fixation and effecting the recovery from the petitioner's retrial benefits, therefore, this writ petition may be dismissed.
(3.) After hearing learned Counsel for the parties, I am of the opinion that controversy involved in this case is squarely covered by the judgment of Sayed Abdul Qadir , in which, the following observations were made:-- 57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such 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. 58. The relief against recovery is granted by Courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, Courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar, V. Gangaram v. Director, Col. B.J. Akkar (Retd.) v. Govt. of India, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh, and Bihar SEB v. Bijay Bhadur. 59. Undoubtedly, the excess amount that has been paid to the appellants-teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. 60. Learned Counsel also submitted that prior to the interim order passed by this Court on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some instalments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant-teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them. 61. In the result, the appeals are allowed in part, the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellants-teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR. 22-C would apply to the appellants-teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of Secondary Schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment. In view of above, the recovery statement Annexure-7 is hereby quashed and the respondents are directed to make proper pay fixation of petitioner's salary in accordance with law and release all retrial benefits within a period of three months from the date of receipt of certified copy of this order. It is made clear that no recovery shall be made from the petitioner as a consequence of re-fixation because earlier benefits were granted by the respondents themselves, in which, there was no misrepresentation or fraud committed by the petitioner. It is also made clear that in the event of wrong fixation, petitioner will be at liberty to challenge the same by way of filing fresh writ petition. With the above observation/direction, this writ petition is disposed of.;