C.W.P No. 18282 of 2008 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 18282 of 2008 Date of decision : May 22, 2009 Waryam Singh Saini, ...... Petitioner (s) v. State of Haryana and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. R.K.Malik, Sr. Advocate with Mr.Surya Partap Singh, Advocate for the petitioner. Mr. H.S.Sra, Addl.A.G Haryana for the respondents. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J (Oral) The petitioner has challenged the order dated 28.5.2008 (Annexure P-3) whereby his pay has been re-fixed and recovery ordered from his retiral benefits. It is not disputed that no show cause notice or opportunity of hearing was granted to the petitioner before reducing his pay or making the C.W.P No. 18282 of 2008 ::2:: recovery order. As far as recovery is concerned, the Hon'ble Supreme Court in Syed Abdul Qadir and others Vs. State of Bihar and others, reported as 2009(1) SCT 611, after reviewing the entire law on the subject held as follows:- “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. 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. Undoubtedly, the excess amount that has been paid to the appellants-teachers was not because of any C.W.P No. 18282 of 2008 ::3:: 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.” As regards re-fixation of pay is concerned, the impugned order will have to be set aside since concededly it has been passed without issuing any show cause notice or granting any opportunity of hearing to the petitioner. Consequently, the impugned order in so far as it directs refixation of pay of the petitioner, is set aside. However, as regards reduction of pay is concerned, liberty is granted to the respondents to pass a fresh order after giving show cause notice and opportunity of hearing to the petitioner. The C.W.P No. 18282 of 2008 ::4:: refund of the recovered amount be made to the petitioner within two months from the receipt of a certified copy of this order. The writ petition stands disposed of. ( AJAY TEWARI ) May 22, 2009. JUDGE `kk'