IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2863 of 2010 5 16.11.2010 1. THE UNION OF INDIA THROUGH THE GENERAL MANAGER EASTERN RAILWAY, 17, N.S. ROAD, KOLKATA- 1 2. THE GENERAL MANAGER (PERSONNEL) EASTERN RAILWAY, FAIRLIE PLACE, KOLKATA-1. 3. THE DIVISIONAL RAILWAY MANAGER EASTERN RAILWAY, MALDA 4. THE SENIOR DIVISIONAL PERSONNEL OFFICER EASTERN RAILWAY, MALDA 5. THE SENIOR D.O.M. EASTERN RAILWAY, MALDA 6. THE SENIOR D.F.M. EASTERN RAILWAY, MALDA ….. PETITIONERS Versus 1. JAGDISH PRASAD YADAV S/O SRI RAMDHANI PRASAD, EX- GUARD ( MAIL EXPRESS ), EASTERN RAILWAY, MALDA R/O ANANDPUR, P.O.- UKHRAMA, P.S.- SURAJGARHA, DISTT.- LAKHISARAI ( BIHAR ) ….. RESPONDENT ------- For the Petitioners : M/s D.K.Sinha, Senior Advocate & Bijoy Kumar Sinha, Advocate For the Respondent : Mr M.P.Dixit, Advocate -------- Heard learned counsel for the petitioners and learned counsel for the sole respondent. 2. The Union of India and its officials are aggrieved by the impugned order passed by learned Central Administrative Tribunal, Patna Bench, Patna dated 11.8.2008 contained in Annexure- 8 whereby OA No.495 - 2 - of 2007 preferred by the sole respondent has been allowed by directing the respondents not to recover the amount of Rs.82,387/- from the pensionary benefits of the applicant and to fix his pension on the basis of salary drawn by him at the time of retirement within a fixed period. 3. According to learned counsel for the petitioners, the authorities came to know of the wrong grant of additional increment to the respondent on 1.8.1989 only when his service book was being examined for the purpose of sanctioning his retiral benefits prior to his retirement on 30.4.2007. On coming to know of the wrong grant of additional increment, a notice was given to the respondent vide Annexure- 1 dated 12.3.2007 to which the respondent replied on 6.4.2007 vide Annexure-2. On the basis of respondent’s reply dated 6.4.2007, it was shown that he did not contest the fact that he had been wrongly granted additional increment but he pleaded that the decision to reduce his pay scale would cause him immense hardship because the excess amount will be recovered from his retiral benefits. The respondent in his show cause pleaded that the excess amount was on account of mistake by the administration. In the show cause another claim was made - 3 - by the respondent for grant of some benefits under a circular of 1981 but that was not found acceptable. 4. According to learned counsel for the petitioners, the Tribunal should not have interfered with recovery of the amount wrongly paid to the respondent and in any event it should have directed re-fixation of the salary of the respondent correctly for the purpose of computing retiral benefits and should not have ordered for retiral benefits on the basis of actual pay given to the respondent which was admittedly wrongly given to him on account of error in granting additional increment. The main issue whether excess amount should be permitted to recover or not requires some consideration because even after a Full Bench judgment of this Court in the case of Ram Binod Singh v. Bihar State Electricity Board, 2007 (3) PLJR 398, the Apex Court has considered similar issue in some cases such as- Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 and in the case of Registrar, Cooperative Societies, Harayan v. Israil Khan & ors., (2010) 1 SCC 440. 5. The Full Bench of this Court had to reconcile two conflicting views taken by Division Benches of this - 4 - Court on the issue of legality of recovery. The Full Bench came to a conclusion that in appropriate facts and situation of a case mistaken grant of monetary benefits can justify recovery from a person who has already superannuated but it was clarified that in appropriate case where monetary benefit has been wrongly granted on account of an error of interpretation by a competent authority then such error would not amount to mistake or error of a malafide nature and, therefore, ipso facto may not justify recovery of monetary benefit already paid to the concerned employee. In the later judgment of the Supreme Court the principles have been further clarified as appears from paragraph 58 in the case of Syed Abdul Qadir (supra) in which several earlier judgments of the Apex Court were noticed to hold that the relief against recovery is granted by courts not because of any right in the employees but on account of equity which may warrant exercise of judicial discretion to relieve the employees from hardship on account of recovery being ordered after long years of wrong payment. As a caution, the Apex Court has clarified that if it is found that the employee had knowledge that the payment received was in excess of what was due or was wrongly - 5 - paid or in cases where the error is detected or corrected within a short time of wrong payment, courts may not interfere with order for recovery of excess amount. Similarly, in paragraphs 7 and 9 of the judgment in the case of Registrar, Cooperative Societies (supra), the principle was further clarified by laying down that there is no “principle’ that excess payment to employee should not be recovered by the employer. In this regard it will be useful to extract paragraph 7 of the judgment which runs as follows :- “7. There is no “principle” that any excess payment to employees should not be recovered back by the employer. This Court, in certain cases has merely used its judicial discretion to refuse recovery of excess wrong payments of emoluments/ allowances from employees on the ground of hardship, where the following conditions were fulfilled : “(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/ allowances or on the basis of a particular interpretation of rule/ order, which is subsequently found to be erroneous.” 6. On going through the facts of this case, we are satisfied that the excess payment to the respondent was not on account of any misrepresentation or fraud or to his - 6 - knowledge and that such excess payment was by the employer by applying wrong principles for grant of additional increment or on the basis of wrong interpretation of relevant rules or orders. From other orders passed in the case of similar employees of the Railways which are annexed as Annexures 9 and 10 to the supplementary affidavit, it appears that such errors had taken place in more than one case and later on the grant was found to be erroneous. It is further clear that recovery has been ordered after show cause notice, but 17- 18 years from the erroneous grant of additional increment. In the aforesaid facts and circumstances, equity is in favour of respondent employee and hence, we find no error in the order of the Tribunal directing the petitioners not to recover the excess amount paid to the respondent employee. 7. However, from the facts and circumstances as well as reply of the respondent to the show cause notice, it is found that the pay of the respondent has been rightly redetermined after making necessary correction and, therefore, although the respondent received a different pay on account of wrong grant of additional increment, - 7 - petitioners shall be entitled in law to fix his retiral benefits on the basis of the correct pay scale which he would have been entitled under law to receive. 8. The impugned order is modified accordingly. The writ petition is allowed to the aforesaid extent. There shall be no order as to costs. sk AFR (Shiva Kirti Singh, J.) (Mridula Mishra, J.)