IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.4160 of 2009. Date of Decision: 15th September, 2011. _______________________________________________________ Shri K.C. Aggarwal ….Petitioner. Versus H.P. State Electricity Board …Respondent. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the petitioner: Mr. Sanjeev Bhushan, Advocate. For the respondent: Ms. Anjula Khajuria, Advocate. _________________________________________________________ Surinder Singh, J. (Oral). By means of present petition, the petitioner, a retiree, inter-alia sought the quashment of order dated 12.8.2009 (Annexure P19) with respect to the fixation of his pay. 2. Precisely, the facts giving rise to the present petition are that the petitioner was working as XEN with the respondent-Board. Vide office order dated 15.7.1993 (Annexure P1) his pay was fixed at `1400+53 in the pay scale of `1000-1850 w.e.f. 1.1.1978, in the selection grade w.e.f. 1.1.1978 at `1700/- per month, on promotion, on 24.2.1978 he was fixed in the revised pay-scale of `1400-2100 at 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - `1775/- per month under FR 22 (a) (i) with upward revision in the pay-scale on different dates. 3. Vide office order dated 11.2.1994 (Annexure P6), the aforesaid benefits were withdrawn and his pay was fixed in the revised pay-scale of `3000-5600 w.e.f. 1.2.1985, but no benefits under Rule 22 (a) (i) were accorded to him, whereas the benefits of FR 22-C was accorded to him only w.e.f. 1.2.1989. 4. The revision of the pay-scale was subsequent to the retirement of the petitioner without affording any opportunity of hearing, as such the petitioner challenged his downward revision of pay scale vide OA No.1428 of 1997 before the Administrative Tribunal, which was later transferred to this Court on its abolition and registered as CWP (T) No.4478 of 2008. 5. Taking note of the aforesaid facts that no show- cause notice was issued to the petitioner, office orders dated 15.7.1993, 11.2.1994 and 11.5.1994 were quashed by this Court with the direction that the respondent-Board shall take a fresh decision in the matter after issuing a show-cause notice and affording an opportunity of hearing/representation in a time bound manner. - 3 - 6. Admittedly, no show-cause notice was issued to the petitioner pursuant to the order/judgment of this Court to the earlier petition, however, the petitioner put in appearance on 12.8.2009 before the Secretary of the respondent-Board and made a futile attempt to convince him. Thus, the Secretary aforesaid took decision vide Annexure P19 dated 12.8.2009 adverse to the petitioner without making him aware of the contents of show-cause on which he was required to be heard, which is under challenge. 7. Heard and gone through the record. 8. As a matter of fact, the petitioner was superannuated on 30th June, 1993. During his service his junior Shri B.L. Mehta was getting higher pay. As such the petitioner made representation, consequently his pay after considering this fact, was stepped-up on and with effect from 1.2.1978. Thereafter he kept on getting the salary and earned increments thereon from time to time till his retirement. Then the pay-scales were revised w.e.f. 1.1.1988, the petitioner was put by the respondent- Board in the corresponding scale. During his service no option was taken from him, but after his - 4 - retirement the respondent-Board asked for his option on 26.7.1993. 9. Thus pursuant to office-order No.HPSEB/F&A/PF- PG/94-2200-1 dated 11.2.1994, the petitioner vide his letter dated 18.4.1994 (Annexure RA-IV) exercised his option to come over to the revised scale w.e.f. 1.2.1989, but this option exercised by him was subject to the decision of his representation dated 12.4.1994 as informed by him. Thereafter, the petitioner was fixed at `6100/- vide Annexure P10 dated 11.5.1994, which resulted into reduction of his pension and consequent recoveries. 10. The stand taken by the respondent-Board is that the petitioner was given step-up on account of the fact that Shri B.L. Mehta junior to the petitioner was getting more pay than the petitioner which was subsequently withdrawn. The record reveals that such withdrawal order was stayed, in the petition filed by Shri B.L. Mehta and the result whereof is not known nor it has been placed on record. 11. It is pertinent to note that the notices for the recovery were quashed in CWP (T) No.4478 of 2008 by this Court on the petition filed by the petitioner. Consequent thereupon, the respondent-Board was required to issue a show-cause notice to the - 5 - petitioner, as directed. Even thereafter the respondent-Board did not issue any show-cause notice. Ms. Anjula Khajuria, learned Counsel for the respondent-Board submitted that the petitioner was heard before passing the impugned order, but she failed to point out as to what deterred the respondent-Board to issue a show-cause notice. Therefore, it is not understood as to what type of hearing was given to the petitioner, in absence of show-cause notice, which was required at least to meet the specific allegations which resulted into the recoveries. 12. However, it is a settled law that mistaken decision can always be corrected by following the process of law, which was completely given go-bye very conveniently in the present case and merely reiterated their earlier decision, that too, after more than 15 years of his retirement. 13. The Apex Court in Syed Abdul Qadir and others v. State of Bihar and others, (2009) 3 SCC 475, noted several precedents of the Supreme Court where relief has been granted against recovery of excess payment of emoluments/ allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the - 6 - employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 14. In fact, the relief against the recovery is granted by the Courts not because of any right vested in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, Courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess, as held in Syed Abdul Qadir’s case supra. 15. In the present case, Shri B.L. Mehta had already retired in the year 1988. It is a fact that at that time, his pay was higher than the petitioner. It was then the petitioner represented to the respondent-Board for correcting anomaly, which was allowed. According to the respondent, since Shri B.L. Mehta - 7 - was wrongly fixed and thus benefit was withdrawn in the year 1994 that is after about six years of his superannuation. But even at that time the respondent-Board did not take any step to issue show-cause notice to the petitioner for the reasons best known to them. Further, even despite the orders of the Court no show-cause notice was issued to the petitioner to explain his position. Thus, by affording an opportunity of hearing without show-cause is a futile exercise and is of no consequence. Therefore, now, in my opinion, after the retirement the aforesaid recovery, shall not be effected from the petitioner which will cause unnecessary hardships to him. 16. Accordingly, the petition is allowed and impugned order dated 12.8.2009 Annexure P19 is hereby quashed and set aside. Consequences shall follow. The withheld amount be released to the petitioner with interest @ 8% per annum from the date it fell due. September 15, 2011. (Surinder Singh), J. (rc)