IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD TUESDAY, THIS THE 6TH DAY OF OCTOBER, 2009 W.P.No.1842 of 2009 Between: 1. Union of India, rep by the Secretary Govt., Ministry of Railways (Railway Board), New Delhi and others. ….PETITIONERS and G.Batchaiah …RESPONDENT THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR W.P.No.1842 of 2009 ORDER:( Per HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR) This writ petition is directed against the order of the Central Administrative Tribunal in O.A.No.430 of 2007 dated 30.07.2008. The respondent-employee was working as Senior Goods Driver in South Central Railway. An amount of Rs.43,249/- was recovered from out of his retirement benefits on the ground that his pay was wrongly fixed in the scale of pay at Rs.1150/- instead of Rs.1130/- with effect from 01.01.1986. The respondent-employee retired from service on 31.03.2006 and, at the time of settlement of his retirement benefits, the administration claims, that it has discovered the aforesaid anomaly and, by re-fixing the scale of pay of the respondent at Rs.1130/- with effect from 01.01.1986, noticed that the respondent-employee has drawn excess pay of Rs.43,249/- for the period from 01.01.1986 to 31.03.2006 and adjusted the said amount towards his account. The same was challenged in the aforesaid O.A. The respondents in the O.A. (petitioners herein) filed counter affidavit before the Tribunal wherein they have stated that the aforesaid clerical error was noticed at the time of settling the retirement benefits of the respondent- employee and based on which the rate of pay of the respondent- employee was reduced from Rs.7075/- to Rs.6900/- and relied upon the decision of the Supreme Court reported in Col. (Retd.) B.J. Akkara Vs. The Govt. of India and Ors.[1] in support of the contention that excess amounts paid to the employee can be recovered. The Tribunal considered the rival submissions and was of the view that it cannot be said that the respondent-employee himself was aware of the said mistake and that the alleged excess payment was not made on account of the misrepresentation or fraud played by the respondent-employee himself and consequently relying upon the decision of the Supreme Court reported in Shyam Babu Verma and Ors. Vs. Union of India and Ors.[2] held that such recovery cannot be made from the employee when the excess payment was not made on account of the misrepresentation or fraud played on behalf of the employee. The Tribunal directed the petitioners herein to refund the amount recovered from the retiral benefits of the applicant (respondent- employee) towards alleged excess payment made to him with interest at the rate of 6% per annum from the date of filing of the application till payment. Against the aforesaid order, the present writ petition is filed. We have heard the learned counsel for petitioners and the learned counsel for respondent-employee. The learned counsel for petitioners reiterated his submissions that the respondent-employee being a Senior Goods Driver was aware of the scale of pay to which he is entitled to and he deliberately enjoyed the excess payment every month though he is not entitled to the said scale of pay. The learned counsel, therefore, relies upon the decision reported in Col. (Retd.) B.J. Akkara case (1 supra) referred to above and submits that the order of the Tribunal is not sustainable and the O.A. ought to have been dismissed. It is to be noticed that the pay of the respondent-employee was fixed as on 01.01.1986, while fixing his pay from III Pay Commission scales to IV Pay Commission scales. Admittedly, the respondent- employee retired from service on 31.03.2006. Thus, for more than 20 years he was being paid salary as per the scale fixed as on 01.01.1986. Even as per the counter affidavit filed by the respondents in the O.A. (petitioners herein) before the Tribunal, the said error is said to have been noticed only at the time of arranging the retirement benefits of the respondent-employee and for the entire 20 years an excess payment of Rs.43,249/- has been made and the same has been adjusted from the retirement benefits. The Supreme Court in Shyam Babu Verma case (2 supra) referred to above has held that recovery of excess payment or allowance paid to the employee cannot be made unless it is found that the alleged excess pay fixation was on account of the misrepresentation or fraud committed by the employee. In the present case it cannot be said that the respondent employee has any role to play in fixation of his scale of pay inasmuch as the officers who are in the accounts department who fixed the pay of the respondent-employee have themselves fixed the scale of pay and the respondent-employee had enjoyed the scale of pay for about 20 years till his retirement. There is no material on record to show that the respondent-employee was aware of the mistake and took advantage thereof. Col. (Retd.) B.J. Akkara case (1 supra) referred to above on which the petitioners placed reliance also holds that relief against recovery of excess wrong payment of emoluments/allowances from an employee is granted by the Courts not because of any right in the employees, but in equity, in exercise of judicial discretion. The equity, in the present case, is clearly in favour of the respondent-employee as he cannot be and has not been attributed any role of either misrepresentation or fraud in adopting the said excess scale of pay fixation. In the light of the above observations, the order of the Tribunal directing refund of the said amount cannot be said to suffer from any error or infirmity liable for correction under our certiorari jurisdiction. The amount of alleged excess payment is also very marginal and in equity no interference is called for. Accordingly, the writ petition is dismissed. No costs. __________________ V.ESWARAIAH, J ____________________________ VILAS V.AFZULPURKAR, J 06th October 2009 CVRK [1] ((2006) 11SCC 709 [2] (1994) 2 SCC 521