JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri N.D.Shukla for the petitioner, Sri Ajay Kumar Srivastava for respondent Nos. 2 and 3 and learned Standing Counsel for respondent No. 1. 2. The petitioner, on attaining the age of superannuation, retired from the post of Head Clerk on 31st January, 2006. However, by means of the impugned order dated 27th December, 2005, which was communicated to the petitioner just a few days prior to his retirement i.e. 2nd January, 2006 respondents informed him that his salary was wrongly fixed giving the details of his fixation since 1st August, 1978 till 1st January, 2005 and therefore the said pay fixation has been corrected making his salary as on 1.1.2005 as Rs. 5,375 and thereby directing for recovery of Rs. 40,216/- from the retiral dues payable to the petitioner. 3. It is contended that impugned order has been passed without any show-cause notice or opportunity to the petitioner and even otherwise so far as recovery is concerned, the same being not on account of any fraud or misrepresentation on the part of the petitioner cannot be recovered. 4. So far as pay fixation after more than twenty-five years is concerned, it is well settled that any order adverse to the employees cannot be passed without affording opportunity or even show-cause notice to the petitioner. In the similar circumstances in Bhagwan Shukla v. Union of India and others, AIR 1994 SC 2480 , the Apex Court said that such an order without affording any opportunity or show-cause notice cannot be passed. 5. Now, coming to the order for recovery, it is evident from the reply submitted by the petitioner that the alleged excess amount, if any, was not paid to the petitioner on account of fraud or misrepresentation on the part of the petitioner. It is now well settled that such alleged excess amount cannot be recovered after a long time unless it is shown to be paid on account of fraud or misrepresentation. This Court considered the similar issues in the case of Subhash Chandra Pandey v. State of U.P. and others, 2008(3) ADJ 61 and in paras 5, 6 and 7 has observed as under: “5. I have heard learned counsel for the parties and perused the record. This Court considered the similar issues in the case of Subhash Chandra Pandey v. State of U.P. and others, 2008(3) ADJ 61 and in paras 5, 6 and 7 has observed as under: “5. I have heard learned counsel for the parties and perused the record. Learned counsel for the petitioners could not show that in law they were rightly paid by the respondents and they were entitled for payment of salary in regular pay scale with all other benefits as applicable to regularly appointed collection amins. However, it is contended that the salary and other benefits paid to the petitioners at par with regularly collection amins is not on account of any fraud or misrepresentation played on the part of the petitioners, but if there is any error or mistake committed by the respondents, they may rectify the same but in any case cannot recover the alleged excess amount already paid to the petitioners since the same has already been consumed in catering to the need of themselves and their family members. Moreover, in view of the law laid down in B.N. Singh v. State of U.P. and another, 1979 ALJ 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 Karnataka and another v. 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. 6. 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 my view, once learned counsel for the petitioners could not show that the salary and other benefits which were paid to them 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 petitioners 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. 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.” 7. 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.” 7. In the instant case, after more than five years the amount of alleged payment is being sought to be recovered from the petitioners, though it is not disputed that for the said payment the petitioners are not at fault and there is no allegation of fraud or misrepresentation.” 6. In view of the above discussion and the exposition of law, as discussed above, the impugned order cannot sustain. The writ petition is allowed. The impugned orders dated 27th December, 2005 and 20th March, 2006 are hereby quashed. The amount, if already deducted, shall be refunded to the petitioner forthwith. 7. No costs. —————