1 wp-6801-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6801 OF 2010 Union of India and anr. .. Petitioners Vs. Shri Bhaskar Changoo Patil .. Respondent Mr. Suresh Kumar for petitioners. Mr. G.S. Walia for respondent. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. OCTOBER 07, 2010. P.C. 1. Heard Mr. Suresh Kumar the learned counsel for the petitioners and Mr. Walia, the learned counsel for the respondent, who was the applicant in O.A. No. 216 of 2008 before the Central Administrative Tribunal at Mumbai. 2 wp-6801-10 2. The applicant approached the Tribunal challenging the order dated 6/3/2008 passed by the petitioners and by the said order the applicant’s pay was refixed at Rs.4900/- with effect from 16/4/2007 and recovery was sought to be made from his salary towards the alleged over payments. The applicant also raised the grievance regarding his pay fixation on repatriation. By the impugned order dated 30/4/2010, the Tribunal has allowed the application and directed that the recovery, if any, made shall be refunded to the applicant. 3. The applicant was appointed initially as a Progress Chaser in the pay-scale of Rs.1200-1800 and was subsequently transferred on ad-hoc basis as Material Chaser in the higher pay-scale of Rs.1200-2040 with effect from 31/1/1991. While he was working in the post of Material Chaser, he allegedly requested to the petitioners to repatriate him to his parent post as his junior Shri Ashok Torane was promoted. On his repatriation, his pay was fixed at Rs.4900/- with effect from 16/4/2007 and, therefore, recovery of the excess amount paid to him was ordered. 3 wp-6801-10 4. The Tribunal held that in the pay fixation there was no role attributable to the applicant and he could not be blamed for the same. At the same time, no show cause notice was issued to him for the proposed recovery. It also observed that there may not be any fault with the impugned order for recovery and by following the law laid down in the case of Col. B. J. Akkara (Retd.) vs. Government of India and ors. [(2006) 11 SCC 709], the Tribunal held that the recovery cannot be made. 5. It was submitted by Mr. Suresh Kumar that if the show cause notice was a pre-condition for the proposed recovery, the petitioners ought to have been left with such a liberty so that the applicant could have been allowed to place on record his defence and a fresh order could be passed in place of the order dated 16/4/2007. On the other hand, Mr. Walia, the learned counsel for the respondent-applicant submitted that the plea taken by the petitioners to the effect that the applicant was in an ex-cadre post is not supported from any document and as per Mr. Walia, the applicant was promoted on a higher post on ad-hoc basis and, therefore, the pay fixation could not be faulted with and consequently there could be no recoveries. Thus, the petitioners as well as the applicant are not satisfied with the impugned order. However, it is well settled that as and when over payment 4 wp-6801-10 recoveries are sought to be made from the salary of an employee by the Government or by the State, he must be issued a show cause notice so that he gets an opportunity to raise his defence and contest the proposed recovery. In the case of Col. B. J. Akkara (Supra), the Supreme Court has considered the law on such recoveries and in para 27 and 28 of the said decisions, it has been held that the recoveries of excess payments should not be resorted to unless the employee is found to be responsible for the higher pay fixation. 6. We, therefore, deem it appropriate that both the parties must be provided with an opportunity to put up their respective stands which will have to be considered while passing the final order on the show cause notice. 7. Hence, we confirm the impugned judgment of the CAT to the extent of setting aside the order dated 16/4/2007. We direct the petitioners to issue a show cause notice to the applicant within a period of two weeks from today, calling upon him to submit his reply within a specific period. The respondent-applicant is undoubtedly at liberty to raise all the issues in reply to the show cause notice. 5 wp-6801-10 We also make it clear that the final order to be passed ought to be, undoubtedly, by following the law laid down in B. J. Akkara’s case. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)