R.S.A.No.3741 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Misc. No. 11384-C of 2009 and R.S.A.No.3741 of 2009 Date of decision:15th October, 2009 The State of Haryana and another ......Appellants Versus Shakuntla and others ......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Suvineet, AAG, Haryana for the appellants. Rajive Bhalla, J.(Oral) Civil Misc. NO. 11384-C of 2009 Prayer in this application is for condoning the delay of 15 days in filing the appeal. For the reasons stated in the application, the delay of 15 days in filing the appeal is condoned. C.M., stands disposed of accordingly. R.S.A.No.3741 of 2009 The State of Haryana challenges the judgment and decree dated 11.06.2009, passed by the District Judge, Sirsa, accepting the appeal filed by the respondents, setting aside the judgment and decree dated 6.12.2007, passed by the Additional Civil Judge (Senior Division) Sirsa and as a consequence, decreeing the suit filed by the deceased respondent. The pay scale of Dhian Singh deceased was revised and he was placed in the pay scale of Rs. 5000-7850 w.e.f.1.1.1996. He retired from service in the pay scale of Rs. 5000-7850 and his pension and other benefits were computed on the basis of the aforementioned pay scale. After his retirement, the defendant-appellants served a R.S.A.No.3741 of 2009 -2- show cause notice, requiring Dhian Singh to refund a sum of Rs.66750/- on the plea that he had been wrongly placed in the pay scale of Rs. 5000-7850. Dhian Singh filed a suit for declaration praying that this amount could not be recovered as he was not responsible for the mistake. Vide judgment and decree dated 6.12.2007, the trial court dismissed the suit. However, vide judgment and decree dated 11.06.2009, the District Judge, Sirsa, accepted the appeal and held that as admittedly, the error was committed by defendant-appellants they could not recover Rs. 66750/- from the leave encashment due to the deceased. Counsel for the appellants submits that the State is empowered to rectify an error any time. If on account of the rectification of an error, any amount is found due from an employee, it can be recovered from the retiral benefits payable to an employee. It is further submitted that as the error in fixing the pay scale, came to the notice of the State, after the retirement of Dhian Singh, the first appellate court has committed an error while holding that this amount cannot be recovered. I have heard counsel for the appellants, perused the judgments and decrees passed by the courts below and express my inability to accede to the arguments advanced by counsel for the appellants or to hold that the trial court committed any error that would give rise to a substantial question of law. The question with respect to right of the State to recover excess salary paid to an employee, on account of error, is longer res integra and has been answered by the Hon'ble Supreme Court in a judgment reported as Sahib Ram Vs. State of Haryana, 1994 (5) SLR 753 and a Full Bench judgment of this Court in C.W.P. No. 2799 of 2008, decided on R.S.A.No.3741 of 2009 -3- 22.5.2009 (Budh Ram and others Vs. State of Haryana and others) by holding that recovery can only be effected where the error on account of a fraud or a misrepresentation, attributed to the employee. In the present case, as admitted by the appellants, the error was committed by their office. The appellants do not allege that there was any misrepresentation or fraud on the part of the deceased respondent. As a consequence, the first appellate court rightly held that the appellants cannot effect any recovery from the deceased respondent. Dismissed. [RAJIVE BHALLA] JUDGE 15th October, 2009 Shivani Kaushik