IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.: 2843/2008 Decided on:17.4.2009 Kartar Singh Dhiman. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes For the petitioner : Ms Nidhi Sharma, Advocate vice Mr. Bhuvnesh Sharma, Advocate For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Deputy Advocate General. Rajiv Sharma, J. The petitioner was appointed as Art and Crafts Teacher on 29.9.1970. He was granted the pay scale of Junior Secondary Teacher (JST) in the grade of Rs. 220-400 after his acquiring the higher qualification of Bachelor of Arts (B.A.) i.e. from 19.7.1977. His pay was fixed with effect from 19.7.1977 in the pay scale of Rs.226-232. He also earned annual increment and subsequently his pay was fixed at Rs/ 232- 244. The grade was revised to Rs. 620-1200 with effect from 1.1.1978 and he was fixed at Rs. 660/-. The stepping up and selection grade were also released to him. However, vide letter dated 27.4.1993, the pay scale 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 of the petitioner was reviewed/revised with effect from 19.7.1977. He was not served with any notice before the issuance of letter dated 27.4.1993. He approached the learned Himachal Pradesh Administrative Tribunal. The learned Himachal Pradesh Administrative Tribunal directed the original application to be treated as representation to the Secretary (Education). He rejected the same on 15.11.1994. Thereafter Annexure A-3 dated 30.11.1994 was issued and the Headmaster was directed to recover the amount from the petitioner in lump sum. Ms. Nidhi Sharma, Advocate has strenuously argued that her client was not served with any notice before the issuance of letter dated 27.4.1993. In other words her submission is that there is violation of the principles of natural justice. The learned Senior Additional Advocate General has supported the decision of the respondent-State whereby the pay scale of the petitioner was revised and recoveries were directed to be effected from the salary of the petitioner. I have heard the learned counsel for the parties and perused the record carefully. The petitioner has been granted higher scale after he has improved his qualification with effect from 19.7.1977. His pay was subsequently re- fixed as noticed above. The pay was revised on the basis of the letter dated 27.4.1993. It is not disputed by the learned Senior Additional Advocate General that no notice was served upon the petitioner before the issuance of letter dated 27.4.1993. The petitioner has been visited with civil consequences. His pay has been revised. In these circumstances it was necessary for the respondents to hear the petitioner before re-fixing his pay and order recovery of the amount in lump sum as per Annexure A-3 dated 30.11.1994. He had also approached the learned Tribunal 3 against the order dated 27.4.1993 by way of OA No. 1109/1994. The same was directed to be treated as representation by the Tribunal. The representation was rejected without speaking order on 5.11.1994. It is settled law that the orders which have civil consequences must be self contained/speaking. The Commissioner-cum-Secretary has only mentioned that the fixation of the pay was done on the established principles and the rules have been followed. It was necessary for him to go into the whole gamut of the case and the circumstances in which he was granted the higher scale on acquiring the qualification in the year 1977. His pay was fixed in the year 1977 and thereafter the same could not be reduced unilaterally in the year 1993 after a gap of 16 years. In the present case the petitioner has not misrepresented the facts and he had no knowledge that the amount which he was paid after the revision was more than what he was entitled to. The petitioner has retired after attaining the age of superannuation during the pendency of this petition. 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 4 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 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 non- existent 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 5 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 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 on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was 6 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.” The excess amount was being directed to be recovered from the petitioner by applying the wrong principles for calculating the pay and allowances which was subsequently found to be erroneous. The petitioner has been granted the increments by the respondents themselves without the petitioner misleading the authorities. The stages of granting the increments have been worked out by the respondents. He cannot be faulted in any manner the way in which his pay was earlier revised. Moreover, he has not been heard by the employer. Their Lordships of the Hon’ble Supreme Court have held in Rajesh Kumar and others versus Dy. CIT and others, 2007 (2) SCC 181 that when by reason of an action on the part of a statutory authority, civil or evil consequences ensure, principles of natural justice are required to be followed. Their Lordships have held as under: “15. Effect of civil consequences arising out of determination of lis under a statute is stated in State of Orissa v.Dr. (Miss) Binapani Dei and Ors. (1967 (2) SCR 625). It is an authority for the proposition when by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. In such an event, although no express provision is laid down in this behalf compliance of principles of natural justice would be implicit. In case of denial of principles of natural justice in a statute, the same may also be held ultra vires Article 14 of the Constitution.” 7 In view of the aforesaid reasoning, the petition is allowed. Annexures A-1 dated 27.4.1993, A-2 15.11.1994 and A-3 dated 30.11.1994 are quashed and set aside. The respondents are restrained from effecting recoveries from the petitioner in view of the definitive law laid down by the Hon’ble Supreme Court as quoted hereinabove. There will, however, be no order as to costs. 17.4.2009 (Rajiv Sharma ), J. *awasthi*