IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 OP.No. 8739 of 2001(M) --------------------------------- PETITIONER: ------------------- M.V. VISWANATHAN, AGED 53, S/O. VELAYUDHAN, MANGAT HOUSE, LOKAMALESWARAM, KODUNGALLUR. BY ADVS. MR.T.M.CHANDRAN, MR.S.SUJITH. RESPONDENTS: ------------------------ 1. ACCOUNTANT GENERAL, OFFICE OF THE ACCOUNTANT GENERAL (AUDIT) KERALA, TRIVANDRUM. 2. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY (FINANCE), GOVERNMENT SECRETARIAT, TRIVANDRUM. 3. THE EXECUTIVE ENGINEER, P.W.D. ROADS DIVISION, TRICHUR. 4. THE ASSISTANT EXECUTIVE ENGINEER, P.W.D. ROADS SUB DIVISION, KODUNGALLUR. R1 TO R4 BY GOVERNMENT PLEADER MR. DILIP MOHAN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 8739/2001-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER. EXT.P.2: COPY OF THE RELEVANT PORTION OF G.O.(P) 380/94/(13) FIN. DT. 09/06/94. EXT.P.3: COPY OF THE G.O.(P).952/95/(63)/FIN. DT. 05/12/95. EXT.P.4: COPY OF THE RE-OPTION AND THE DECLARATION DT. 05/02/96. EXT.P.5; COPY OF THE RE-OPTION AND DECLARATION DT. 05/02/96 FOR FIXATION OF PAY. EXT.P.6: COPY OF THE ORDER NO. E2.455/94 DT. 05/02/96. EXT.P.7: COPY OF THE GOVERNMENT ORDER G.O.(P)615/97/(138)/FIN. DT. 28/06/97. EXT.P.8: COPY OF THE ORDER DT. 23/02/2001 ISSUED BY THE R.1. EXT.P.9: COPY OF THE RELEVANT PORTION OF THE TEST CHECK REPORT ENDORSED IN THE SERVICE BOOK OF THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No. 8739 of 2001 ================== Dated this the 5th day of February, 2010 J U D G M E N T Pursuant to 1992 pay revision order, by Ext.P6 dated 5.2.1996, the petitioner's pay in the 20 year higher grade was fixed. Five years thereafter, by Ext.P8 order dated 23.3.2001, the said fixation was sought to be revised and the excess pay drawn by the petitioner on account of the wrong fixation made in 1996 was sought to be recovered. Challenging Ext.P8 order, the petitioner has filed this original petition seeking the following reliefs: “(a) to call for the records relating to Ext.P1 to 8. (b) to issue a writ of certiorari to quash Ext.P8 order passed by the Respondent No.1. (c) to issue a writ of Mandamus or any other writ directing the Respondents to accept Ext.P6 proceeding and not to take any proceedings against the Petitioner in pursuance of P8.” 2. The petitioner retired from service on 23.2.2001. The petitioner now confines his relief against recovery of the excess salary paid. According to the petitioner, in so far as the petitioner has not contributed, in any manner, to the wrong fixation, it would be unjust to recover the excess pay disbursed to the petitioner on account of the wrong fixation. The petitioner would submit that if the petitioner, who is a lowly paid employee, is made to refund such huge amount, it would cause unbearable hardship to him and his family. The petitioner submits that as held by the Supreme Court in SYED ABDUL QADIR AND OTHERS v. STATE OF BIHAR AND OTHERS [(2009) 3 SCC 475], the o.p.8739/01 2 respondents cannot now recover the excess pay. 3. The learned Government Pleader stoutly opposes the prayer of the petitioner. According to him, at the time of filing his option for higher grade, he had undertaken to refund any excess amount paid on account of wrong fixation, which undertaking only is sought to be enforced now. According to the learned Government Pleader, the decision cited by the petitioner would not be applicable to such cases. 4. I have considered the rival contentions in detail. 5. It is not disputed before me that the petitioner had not contributed to the wrong fixation of pay. The petitioner was required to file his option and he filed his option. The respondents have fixed the pay in accordance with the pay revision order based on that option. That is sought to be revised five years later. In such circumstances, I am of opinion that it would be unjust to mulct the petitioner with the liability to repay such huge arrears for no fault of the petitioner's. In fact in the decision in SYED's case (supra), the Supreme Court has held thus; “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 o.p.8739/01 3 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 v. State of Haryana [1995 Spp.(1) SCC 18], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521], Union of India v. M.Bhaskar [(1996) 4 SCC 416], V.Gangaram v. Director [(1997) 6 SCC 139] Col.B.J.Akkara (Retd.) v. Govt. of India [(2006) 11 SCC 709], Purushottam Lal Das v. State of Bihar [(2006) 11 SCC 492] Punjab National Bank v. Manjeet Singh [(2006) 8 SCC 647] and Bihar SEB v. Bijay Bhadur [(2000) 10 SCC 99]. 59. Undoubtedly, the excess amount that has been paid to the appellant 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 appellant 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.” I am of opinion that that decision is squarely applicable to the petitioner's case. The fact that the petitioner had undertaken to refund the excess on wrong fixation cannot change the position, since I am of opinion that such undertaking also has to be enforced within a reasonable time. In the above circumstances, Ext.P8 to the extent of directing refund of the excess salary paid to the petitioner is quashed. However, I make it clear that the re-fixation would stand for all purposes. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.8739/01 4 S.SIRI JAGAN, J. ================== O.P.No. 8739 of 2001-M ================== J U D G M E N T 5th February, 2010