Ajit Singh vs State of Punjab and Others

Ajay Tewari, J.—The petitioner joined service with respondent department in July, 1968 as a Motormate and retired on 30.11.2006 on attaining the age of superannuation. In 1996 he was drawing salary in the pay scale of 3120-5160 including personal pay. After the new pay sales came into force w.e.f. 1996 his pay was fixed in the pay scale of 3120-6200. He availed this benefit till 2005 and it was brought to light that the new pay scale was wrongly granted to him and consequently as per the objections raised by the Finance Department the respondents ordered the recovery of excess payment made to him to the tune of Rs. 1,48,096/- which has already been recovered from his retiral benefits. The petitioner alleged that if his pay was wrongly fixed or some excess payment was allegedly made there was no concealment, misrepresentation or fraud on his part while doing so. In reply the stand taken is that the aforesaid recovery of an amount of Rs. 1,48,096/- made from the retiral benefits of the petitioner has been made as per rules. Reliance has been placed in the case of Union of India and Others Vs. Smt. Sujatha Vedachalam and Another, wherein it has been held that the employer has a right to recover the excess payment made to any of its employees as and when the same comes to the notice of the employer. Reliance has also been placed on Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, on the point that the excess payment of public money which is often described as "tax payer money" belongs neither to the officers who have effected over payment nor that of the recipients.

Learned counsel for the petitioner has argued that before effecting recovery no show cause notice or opportunity of hearing was given to the petitioner and the recovery that has been effected from the petitioner after his retirement is unsustainable and against the principles of natural justice.

Learned Addl. A.G. has defended the order passed by the respondents stating that the same was passed in accordance with law.

Learned counsel for the petitioner has also cited Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, to canvass that recovery could not be made and has relied upon Paras 14 and 17 of the said judgment which are quoted herein below:-

We may point out that in Syed Abdul Qadir case such a direction was given keeping in view of the peculiar facts and circumstances of that case since the beneficiaries hand either retired or were on the verge of retirement and so as to avoid any hardship to them.

We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered.

From the above facts it is clear that the order effecting recovery from the retiral benefits of the petitioner has been passed ex parte i.e. without issuing any notice to the petitioner and that should be set aside and the amount recovered should be refunded back to him.

Learned counsel for the respondent has sought to argue that in Chandi Prasad Uniyal case (supra) the Hon''ble Supreme Court has, as a point of principal laid down that over payment paid to employees cannot be retained by them. In my considered opinion in view of the decision of the Hon''ble Supreme Court in Chandi Prasad Uniyal (supra) recovery could not have been made and consequently the same is set aside. The respondents are directed to refund the amount to the petitioner within a period of one month from today failing which the petitioner will be entitled to recover the amount with interest at the rate of 8% from the date of retirement till the date of payment.