1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.946 OF 2002 1. Union of India, through ) Engineer-in-chief, ) Engineers Branch, ) Army Head Quarters, ) Kashmir House, ) New Delhi ) ) 2. The Commander Works Engineers ) (Suburbs), Pawai, Bhandup ) Mumbai  400 078 ) ) 3. The Chief Controller of ) Defence Account, (Pension) ) Allhabad ) ..Petitioners V/s. V.C.Narasimhula ) son of V. Subbiah, ) Assistant Engineer(B/R),Retd. ) C/o.A.I.Bhatkar, Advocate ) R.No.13,Mohammad Husain Chawl ) No.4, Opp. Antop Hill Post ) Office, Shaikh Mistry Road, ) Antop Hill, Wadala (East) ) Mumbai  400 037 ) ..Respondent Mr.R.R.Shetty a/w.Mr.D.A.Dubey, Advocate, for the petitioner No.1  Union of India Mr.A.I.Bhatkar, Advocate, for the respondent CORAM : P. B. MAJMUDAR R.M.SAVANT, JJ. DATE : 24TH JUNE, 2009 2 ORAL JUDGMENT (PER P.B.MAJMUDAR, J.) . The petitioner  Union of India has challenged the Order passed by the Central Administrative Tribunal, Mumbai Bench at Mumbai in the Original Application No.1101 of 1996 dated 20th November, 2001. By the impugned Order, the Central Administrative Tribunal allowed the said Original Application No.1101 of 1996 filed by the present respondent by holding that the petitioners, who are the respondents before the Central Administrative Tribunal are not entitled to effect recovery, if any, and not entitled to change the leave applied for and sanctioned by the Department. The Central Administrative Tribunal also directed that the leave records of the respondents should be corrected. The aforesaid Order has been impugned at the instance of the petitioner No.1  Union of India in this petition. 3 2. The respondent was working on the post of Assistant Engineer at the relevant time at Hyderabad Office. The respondent was subjected Departmental Enquiry on the ground that he remained absent initially for the period between 26th February, 1981 to 19th December, 1985. It seems that on conclusion of the Departmental Enquiry, he was subjected to penalty of withholding of three increments with cumulative effect and the impugned Order to that effect was passed on 24th September, 1988. The period of absence was ordered to be treated as extra ordinary leave and dies-non by the Department. It is pointed out by Mr.R.R.Shetty, the learned counsel for the petitioner that the proceedings preferred by the present respondent against the said Order dated 24th September, 1988, were dismissed by the Tribunal except deleting the word Dies-non from the order. The Tribunal held that the observations made by the Appellate Authority regarding Dies-non shall not be 4 enforced against the petitioner. The said Order passed on 9th June, 1992, is on record at page No. 67. The said Order was passed on the application preferred by the respondent being the Original Application No.246 of 1992. 3. Subsequently, the respondent was subjected to the Show Cause Notice in the matter of recovering the amount which, according to the petitioner, was paid to the respondent on the basis of wrong fixation. After giving an appropriate opportunity to the respondent in this behalf, the petitioner passed an Order of recovery by its Order dated 25th March, 1996. A copy of the said Order is at Exhibit 1 to the petition. The respondent challenged the said Order by way of the Original Application before the Tribunal. The Tribunal, by the impugned Order, set aside the Order of recovery and gave certain directions in connection with leave applied and sanctioned by the Department. It is the aforesaid order which is impugned in this 5 petition at the instance of the petitioner  Union of India. 4. Mr.R.R.Shetty, the learned counsel for the petitioner No.1  Union of India submitted that the respondent got the benefit of certain amount on the basis of wrong pay fixation and the Order of recovery was rightly passed against the respondent. Mr.A.I.Bhatkar, the learned counsel for the respondent has submitted that since leave of the respondent was subsequently sanctioned as an extraordinary leave, the respondent was entitled to get the periodical increments released. He further submitted that leave account of the respondent could not have been changed from the extraordinary leave to any other leave. 5. We have heard the learned counsel for the parties and gone through the record of the case as well as Order of the Tribunal. It is not in dispute that for the period between the year 1981 6 to 1985 the respondent remained unauthorizedly absent from service. He was ultimately subjected to penalty of withholding of three increments with cumulative effect. It is also not in dispute that the respondent thereafter, got his pay fixed on wrong footing and in this behalf the Tribunal has observed as under :- The contention is based on the submission that the applicant has moved the respondents vide his note (OA.page 128) to fix his pay on wrong footing. Admittedly, the said page is in the handwriting of the applicant and it was not the job of the applicant to submit such a note. It is true that he has interferred with fixation of his pay and probably might have misled his superiors in this respect. But the responsibility of the superior is noway shaken to find out the correct facts and to pass the appropriate order. In such circumstances, we do not feel it proper that applicant be deprived of any relief to which he is entitled in view of the facts stated by the respondents. The applicant's act may be condemned but on that count we do not feel it just to discriminate his case with others. Had the applicant fixed his own pay, we might have considered the plea of respondents. As there were intervening factors and someone else was responsible to fix the pay of the applicant, it is not a fit case where such proposition can be applied. 7 6. The Tribunal, however, by relying upon certain Judgments came to a conclusion that whatever payment was made to the respondent due to wrong fixation of pay, no recovery can be made from the respondent. In our view, it is required to be noted that if an employee is instrumental in any manner in the matter of wrong pay fixation, naturally, he can be subjected to the recovery. In so far as the facts of the present case are concerned, the Tribunal itself has found that it was not a job of the applicant to submit such a note. It is also found by the Tribunal that in so far as fixation of pay of the respondent is concerned, he probably might have misled his superior in this behalf. When the respondent himself was instrumental in wrong fixation of pay by which he got monetary benefit, the Department was justified in recovering the amount from the respondent. The respondent, who got the benefit of pay fixation on wrong basis, cannot be allowed to 8 say that no recovery of the amount should be effected. We are not in a position to accept the reasoning of the Tribunal that even though the respondent is instrumental in getting the pay fixation wrongly, yet no recovery should be effected from him. In a given case where the employee is not responsible in any manner in the matter of getting benefit of wrong pay fixation and on a wrong decision of the Department, if any, amount is paid, the employee is not responsible for such fixation and therefore, amount paid to him cannot be recovered when the Department itself has committed an error in such pay fixation. However, the facts of this case are totally different. In the present case, the respondent fraudulently and unauthorizedly got the pay fixation of his pay and under such circumstances, the Department was justified in recovering the amount for the intervening period. Under such circumstances, we set aside the Order of Tribunal by holding that the petitioner No.1 is entitled to recover the amount 9 from the respondent in connection with the wrong fixation of the pay for the intervening period. Accordingly, the above Writ Petition is allowed. Rule is made absolute to the aforesaid extent. ( R.M.SAVANT. J.) ( P. B. MAJMUDAR, J.)