HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No. 13106 of 2009. DATED 03rd November, 2009 BETWEEN The Commandant, SAR CPL, Amberpet, Hyd and anr. …….Petitioners and Mohd. Yousuf Ali and anr …Respondents. HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No. 13106 of 2009. ORDER: ( Per VVA.J.) The respondents in O.A.No. 1765 of 2008 have filed this Writ Petition aggrieved by the order dated 28.08.2008 passed by the Andhra Pradesh Administrative Tribunal in the said OA. The said OA was filed by the first respondent herein, who is now a retired constable, challenging the proceedings of the first petitioner herein in proceedings C.No. 102/A4/SAR/2007/1984, dated 31.5.2007 whereby the excess amount paid on account of alleged erroneous pay fixation was sought to be recovered. The Tribunal has considered the contentions of the first respondent herein in the light of the counter affidavit filed by the petitioners and found that the Special Grade Scale under Automatic Advancement Scheme was granted to the first respondent with effect from 15.11.1981 and according to the petitioners, the same could have been granted from 7.2.1985. The petitioners herein therefore contended before the Tribunal that the pay fixation of the first respondent was erroneous and required to be re-fixed and accordingly, the same was revised and regularized under Proceedings U.O.No.257/2007, dated 9.4.2007 and consequential recovery of excess amount was sought to be made. The Tribunal considered the decisions of the Supreme Court in the case of Sahibram Vs. Haryana { 1995 (1) Supp.(1) SCC.18} as well as in the case of A.Sivan Kutty Nair Vs. Secretary to Government {2006(3) SLR 375} and found that since the respondent is not responsible and he is not guilty of misrepresentation or fraud nor misled the Department for wrong fixation, he cannot be said to be at fault and recovery of excess amount sought to be recovered under the said proceedings is unsustainable. The Tribunal, therefore, allowed the OA filed by the first respondent herein and directed the petitioners herein to return the excess amount already recovered from the first respondent’s pension within a period of six weeks from the date of receipt of the said order. The correctness of the said order is now questioned by the petitioners by way of the present Writ Petition. The learned Government Pleader appearing for the petitioners submits that the audit authorities have noticed the aforesaid wrong pay fixation and due to the said fixation, the excess pay and allowance was ordered to be recovered from his gratuity by order dated 21.5.2007. He further submits that the order of revision of pay passed by the first petitioner in proceedings C.No.P3/339/SAR/2007, D.O.No. 257/07, dated 9.4.2007 was not questioned by the first respondent in the OA. The first respondent, however, questioned only the recovery order passed by the first petitioner in proceedings C.No.102/A4/SAR/2007/1984, dated 31.5.2007. We have considered the aforesaid submissions in the light of the decisions of the Supreme Court referred to above in addition to the latest judgment of the Supreme Court in the case of Syhed Abdul Qadir Vs. State of Bihar {(2009) 3 SCC 475}, which directly applies and covers the issue involved in the present Writ Petition. The Supreme Court in the aforesaid decision reiterated the legal position at Paragraphs 57 and 58. It would be appropriate to extract the same hereunder: “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 tht 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 SCC (L&S) 248, Shym Babu Verma Vs. Union of India {(1994)2 SCC 521}, Union of India Vs.Mbhaskar {(1996) 4 SCC 416}, V.Gangaram Vs. Director {(1997)6 SCC 139}, Col.B.J. Akkara (Retd) Vs. Govt. of India {(2006) 11 SCC 709, Purshottam Lal Das Vs. State of Bihar {(2006) 11 SCC 492}, Punjab National Bank Vs.Manjeet Singh {(2006) 8 SCC 647}, and, Bihar SEB Vs.Bijay Bhadur { (2000) 10 SCC 99}.” In the light of the ratio of the said decision which refers to its earlier decisions also, and in view of the facts and circumstances of the present case, it cannot be said that the respondent is guilty of misrepresentation or fraud nor can it be said that he mislead the petitioners in fixing his pay which was revised later. The respondent has already retired from service and excess amount was recovered from his pension. Therefore, the Tribunal is justified in issuing the directions to refund the said excess amount already recovered from his pension to the first respondent. There is no error discernable from the order impugned in this Writ Petition. The Writ Petition is therefore liable to be dismissed. The Writ Petition is dismissed accordingly. However, there shall be no order as to costs. -------------------------- JUSTICE V. ESWARAIAH -------------------------------------- JUSTICE VILAS V. AFZULPURKAR Dated 02nd November, 2009. Msnr.