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Allahabad High Court · body

2008 DIGILAW 2054 (ALL)

SHIV PRAKASH RICHARIYA v. STATE OF UTTAR PRADESH

2008-09-26

B.K.NARAYANA

body2008
JUDGMENT Hon’ble B.K. Narayana, J.—Heard learned Counsel for the petitioner and the learned Standing Counsel for the respondents. 2. By means of the present writ petition the petitioner has prayed for quashing the order dated 7.9.2006 (Annexure-4 to the writ petition) passed by the respondent No. 3 by which an amount of Rs. 24,710/-, which was paid in excess to the salary, which the petitioner was entitled to receive, has been directed to be recovered from him. 3. The brief facts of the case are that the petitioner retired from service on attaining the age of superannuation while working on the post of Pharmacist on 31.1.2006. Since the petitioner’s retiral benefits were not being paid, he approached the respondent No. 4 for redressal of his grievances who, by his letter dated 17.3.2006, requested the respondent No. 2 to release 90% of the G.P.F. amount in favour of the petitioner. 4. It appears that another letter dated 21.6.2006 was issued by the respondent No. 4 to the respondent No. 3 seeking parawise reply to the queries contained therein. Although the said letter contains an endorsement that a copy of the said order was forwarded to the petitioner also but, according to the petitioner, copy of the same was never served upon him. A true copy of the letter/order dated 21.6.2006 is on record as Annexure 3 to the writ petition. In the said letter it was mentioned that the petitioner had been erroneously granted selection grade on 1.1.1986 in the pay scale of Rs. 1350-2200 to which the petitioner was not entitled as the petitioner had already been granted selection grade on 1.7.1985 and in place of Rs. 1380/- the petitioner was entitled to a salary of Rs. 1350/- only and accordingly the subsequent fixation of the petitioner’s salary made on the basis of aforesaid erroneous fixation on 1.7.1995, 1.1.1996, 1.7.1996 and 1.7.2000 were liable to be revised and the amount which the petitioner had received as excess salary under wrong fixation, was liable to be recovered from the petitioner. 5. After issuance of order/letter dated 21.6.2006 by the respondent No. 4, the respondent No. 3 passed the impugned order dated 7.9.2006 illegally deducting a sum of Rs. 5. After issuance of order/letter dated 21.6.2006 by the respondent No. 4, the respondent No. 3 passed the impugned order dated 7.9.2006 illegally deducting a sum of Rs. 24,710/-, allegedly paid to the petitioner in excess of the salary, which the petitioner was entitled to receive on account of erroneous fixation of the petitioner’s salary on 1.1.1986, from the amount of Rs. 2,56,041/- which the petitioner was found entitled to receive by the same order towards his encashment and other retiral benefits. True copy of the order dated 7.9.2006 is appended as Annexure 4 to the writ petition. 6. The ground of challenge is that it is not open to the respondents employer to recover any amount of salary already paid to the petitioner, even if, it was found subsequently that the petitioner employee was not entitled to payment of the said amount unless the allegation is there that such payment was made on account of playing fraud or representation by the recipient of the said amount. 7. The respondents have filed counter affidavit and the petitioner has filed rejoinder affidavit in reply thereto. 8. If the salary of an employee has been fixed and paid by his employer voluntarily without there being any fraud or misrepresentation by the employee, it is not open to the employer to recover any amount of salary already paid, even if, later on, it is found that the employee was not entitled to the salary at that rate/scale of pay unless the order fixing the salary/pay-scale is corrected by the employer shortly after it was passed. Reference, in this connection, may be made to the decision of Supreme Court in Sahib Ram v. State of Haryana and others, JT 1995(1) SC 24, wherein it was laid down as under : “Admittedly the appellant does not possess the required educational qualifications. Under the circumstances, the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on revised scale. However, it is not on account of any mis-representation made by the appellant that the benefit of higher pay-scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances, the amount paid till date may not be recovered from the appellant. However, it is not on account of any mis-representation made by the appellant that the benefit of higher pay-scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances, the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scale prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.” 9. In the above case, the concerned employee (Librarian) was given the revised pay-scale of Rs. 700-1600. Subsequently, it was discovered that the employee was not entitled to that scale, and therefore, the order was passed for recovering the excess amount paid to him. This order was set-aside by the Supreme Court. 10. A Division Bench decision of this Court in Bindeshwari Sahai Srivastava v. Chief Engineer, Irrigation Department, Lucknow and others, 1996 AWC 947, has also laid down that even if an employee has been paid excess amount voluntarily by any employer without there being any element of fraud or misrepresentation on the part of the employee, the excess amount cannot be recovered from the employee subsequently. 11. In para 9 of the writ petition, it has been stated by the petitioner that he has not committed any fraud or misrepresentation in fixation of his salary at the rate of Rs.1380/- per month with effect from 1.1.1986 whereafter the petitioner’s salary was revised on several occasions till the year 2000 on the basis of the fixation made on 1.1.1986. Thus, if there was any mistake in fixing of pay, it was mistake of the respondents for which the petitioner is not responsible in any manner. These allegations have not been disputed in the counter affidavit filed on behalf of the respondents. It is, thus, apparent, that the salary of the petitioner was fixed at Rs. 1380/- per month by the respondents in the year 1986 without there being any fraud or misrepresentation on the part of the petitioner. The respondents, as such, cannot recover from the petitioner, after his retirement, any part of the salary already paid to him. 12. It is, thus, apparent, that the salary of the petitioner was fixed at Rs. 1380/- per month by the respondents in the year 1986 without there being any fraud or misrepresentation on the part of the petitioner. The respondents, as such, cannot recover from the petitioner, after his retirement, any part of the salary already paid to him. 12. Another ground on which the impugned order is liable to be set aside is that no opportunity of hearing was afforded by the respondents to the petitioner prior to passing of the impugned order. 13. Having heard the learned Counsel for the parties, I am of the view that the amount having been paid to the petitioner voluntarily by the respondents without there being any fraud or misrepresentation by the petitioner, it is not open to the respondents to recover any amount from the petitioner. 14. For the reasons given, herein above, the writ petition succeeds and is allowed. The order dated 7.9.2006 (Annexure-4 to the writ petition) is hereby quashed. The respondents are directd to refund the amount of Rs. 24,710/- recovered from the petitioner forthwith. The petitioner will be paid the balance amount of his encashment and retiral benefits, if not already paid. —————