IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. (T) No. 14209 of 2008. Decided on 16.06.2011. _____________________________________________________ Devi Chand. …Petitioner. -Versus- State of H.P. and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. Ashwani Pathak, Advocate. For the respondents. : Mr. Anil Jaswal, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Petitioner was promoted to the post of Laboratory Attendant. He joined his duties on 06.01.1996. He was placed in the initial pay of `3220/-. His pay was revised vide office order dated 03.08.2006 issued by the Deputy Director of Education. In sequel thereto, office order Annexure A-2 was issued, whereby the petitioner was being paid the basic pay of `3220/- w.e.f. 01.01.1996, which was more than one increment. The schedule was directed to be prepared to recover the amount paid in excess w.e.f. 01.01.1996 to 06.01.2004. Petitioner made a representation to the Headmaster of the School on 18.09.2006. The same was forwarded by the Headmaster to the Deputy Director of Secondary Education, Shimla on 30.09.2006. The Deputy Director, Higher Education, Shimla has informed the Headmaster that the pay of the petitioner was to be revised. 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - During the pendency of the petition, Annexure A-7, dated 30.11.2006 was issued to the petitioner, according to which, a sum of `14,752/- was to be recovered from the petitioner. 2. Mr. Ashwani Pathak, learned counsel for the petitioner has strenuously argued that the petitioner has not been given reasonable opportunity of hearing before the issuance of Annexure A-7, dated 30.11.2006 to explain his position. He then argued that the petitioner has neither misled nor mis-represented the authorities at the time when his pay was initially fixed. 3. Mr. Anil Jaswal, learned counsel for the petitioner has vehemently argued that since the pay of the petitioner was wrongly fixed, there is no illegality in the issuance of Annexures A-1, A-2 and A-6. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner has been promoted to the post of Laboratory Attendant and he joined his duties on 06.01.1996. Consequently, his pay was fixed. However, the same has been revised on the basis of Annexures A-1 and A-2. Petitioner has not been heard before the issuance of Annexures A-1 and A-2. Since the petitioner has suffered civil and evil consequences, he was required to be given reasonable opportunity of being heard before the decision was taken to reduce his salary. Petitioner has neither mis-led nor mis-represented the authorities at the time when his pay was revised by the respondents on his promotion to the post of Laboratory Attendant w.e.f. 06.01.1996. - 3 - 6. Their Lordships of the Hon’ble Supreme Court in Syed Abdul Qadir and others versus State of Bihar and others, (2009) 3 SCC 475 have culled out the following principles governing the circumstances in which the excess amount cannot be recovered by the employer: “55. That apart, it also appears from the record produced before us that while the Finance Department of the Government of Bihar was in favour of making the amended provisions of FR. 22-C applicable to the appellants-teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human Resource Development, Government of Bihar, wanted to apply the unamended provision to the appellants-teachers so as to make available the benefit of additional increment provided for under FR.22-C to its teachers, unaware of the fact that even under FR.22-C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post. 56. This further goes on to show that the authorities in the State of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind. Otherwise, there was no reason for the Finance Department to state in the counter affidavit filed before the High Court that any affidavit filed on behalf of the Education Department may be ignored as Finance Department was the competent authority. In this very affidavit, the Finance Department while admitting that the pay - 4 - fixation by the Education Department was wrong, stated as under:- "...the fixation of pay under Fundamental Rule 22- C has wrongly been made as it was not in existence. Pay fixation on the basis of a nonexistent rule is a bona fide mistake." 57. This Court, in a catena of decisions, has granted relief 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 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. 58. The relief against recovery is granted by courts not because of any right 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. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India, [1994] 2 SCC 521; Union of India vs. M. Bhaskar, [1996] 4 SCC 416; V. Ganga Ram vs. Regional - 5 - Jt., Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India & Ors. (2006) 11 SCC 709; Purshottam Lal Das & Ors.,vs. State of Bihar, [2006] 11 SCC 492; Punjab National Bank & Ors. Vs. Manjeet Singh & Anr., [2006] 8 SCC 647; and Bihar State Electricity Board & Anr. Vs. Bijay Bahadur & Anr., [2000] 10 SCC 99. 59. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. 60. Learned counsel also submitted that prior to the interim order passed by this Court - 6 - on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some installments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant- teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them.” 7. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexures A-1, A-2 and A-6 are quashed and set aside. However, it shall be open to the respondents to proceed with the matter in accordance with law. It is made clear that the amount already paid to the petitioner, shall not be recovered from him. No costs. (Rajiv Sharma) Judge June 16, 2011. (bhupender) - 7 - `