V. Ajay Kumar, Member, J.
1. The applicant retired as Foreman on superannuation on 31.07.2008. He filed the present OA questioning the Annexure A1 (Colly.) impugned orders dated 30.04.2011 (Annexure A1), 21.09.2011 and 15.10.2011, in revising his pension and other retirement benefits, and in ordering for recovery of the excess amount paid to him, and also for a direction to refund the amounts of Rs.64,936/- and Rs.1,48,242/- which were recovered from his retirement benefits with interest.
2. The applicant was initially appointed as Turner with effect from 14.02.1972. Thereafter, he was appointed as Chargeman (Rubber Technologist), on his selection in a limited departmental competitive examination, in the Corps of EME in the Pay scale of Rs.425-700 w.e.f. 04.09.1984 and again promoted as Senior Chargeman. He was promoted as Assistant Foreman in the pay scale of Rs.6500-10500 w.e.f. 07.04.2003 and again as Foreman in the pay scale of Rs.7450-11500 and his pay was fixed on 1.04.2006 and under FR 22 (i)(a) his pay was increased by granting one increment of 3% as per rules.
3. As per 6th Central Pay Commissions recommendations, the Assistant Foreman and Foreman in the pre-revised pay scale of Rs.6500-10500 upgraded to Rs.7450-11500 and merged and have been placed in the revised pay scale in PB-1 (sic. PB-2) Rs.9300-34800 with Grade Pay of Rs.4600/- w.e.f. 01.01.2006. Accordingly, the pay of the applicant was also fixed and forwarded to AAO (WC), Delhi Cantonment for approval. But, the applicants case was approved with Grade Pay of Rs.4200/- only instead of Rs.4600/-. Later, on reference, CDA, Chandigarh ordered to admit the Grade Pay of the applicant at Rs.4600/-.
4. Since the applicant was promoted as Foreman after 01.01.2006, i.e., on 01.04.2006, though he was granted the Grade Pay of Rs.4600/-, but financial benefit of one increment at the rate of 3%, given to him earlier, has been withdrawn, and the resultant excess amount has been recovered.
5. The applicant submits that an amount of Rs.64,936/- and Rs.1,48,242/- were recovered on 20.01.2010, and on 16.11.2011 respectively, without issuing any show cause notice and without giving any opportunity to him, and hence, being violative of the principles of natural justice, the said recovery should be declared as illegal and the said amounts should be refunded to him.
6. The applicant further submits that since there was no misrepresentation nor any fraud played by the applicant, in paying the amounts to him, the respondents cannot recover the same after lapse of much time.
7. The respondents vide their detailed counter submit that since the applicant has not questioned the withdrawal of the financial benefits of one increment at the rate of 3% given to him earlier, he is not entitled to question the consequential recovery.
8. The respondents further submit that after withdrawal of 3% increment, the pension of the applicant has been revised by PCDA (Pension), Allahabad vide PPO dated 21.09.2011 for revised basic pension i.e., Rs.10,750/- w.e.f. 01.08.2008. However, due to the mistake committed by the pension paying Bank, his basic pension erroneously revised to Rs.14,196/- in August, 2008 instead of Rs.10,750/- and the mistake continued upto September, 2010 and the consequential excess recovered amount of Rs.1,03,938/- was refunded to the applicant by the concerned Bank. They further submit that an amount of Rs.40,000/-, being the excess amount paid to the applicant due to erroneous granting of financial benefit of one increment at the rate of 3%, was rightly recovered from the applicant.
9. The applicant has admitted the refund of the aforesaid amount of Rs.1,03,938/- in his rejoinder but submits that he is entitled to interest thereon at the rate of 12% per annum from the date of illegal recovery to the date of refund. Though he claimed different amounts for refund in the OA, but he has not disputed the other facts as stated by the respondents.
10. Heard the counsel on both sides and have been through the pleadings on record.
11. This Tribunal by its order dated 13.03.2012 directed the respondents not to make any further recoveries from the retirement benefits of the applicant.
12. The learned counsel for the applicant while admitting that the original order of withdrawing the financial benefits of granting the increment at the rate of 3% is not questioned, but submits that still the respondents cannot recover the consequential amount after a long lapse of time from the date of its grant as there was no fault on him, and that too without following the principles of natural justice.
13. Both the counsel, to buttress their respective contentions placed reliance on the judgement of the Honble Supreme Court in Chandi Prasad Uniyal and Others v. State of Uttarakhand, (2012) 8 SCC 417.
14. The Honble Apex Court in the aforesaid Judgement, after considering the entire case law on the subject, held as follows:
â11. We may in this respect refer to the judgment of two-Judge Bench of this Court in Col. B.J. Akkara (retd.) case (supra) where this Court after referring to Shyam Babu Verma case, Sahib Ram case (supra) and few other decisions held as follows:
âSuch relief, restraining recovery back of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.â
12. Later, a three-Judge Bench in Syed Abdul Qadir case (supra) after referring to Shyam Babu Verma, Col. B.J. Akkara (retd.) etc. restrained the department from recovery of excess amount paid, but held as follows:
âUndoubtedly, 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. (emphasis added)â
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 had either retired or were on the verge of retirement and so as to avoid any hardship to them.
13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
14. We are concerned with the excess payment of public money which is often described as âtax payers moneyâ which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
15. 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.
16. Appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order the excess payment made be recovered from the appellant's salary in twelve equal monthly installments starting from October 2012.
15. In view of the above, and since the applicant had no knowledge that the amount that was being paid to him was more than what he was entitled to and the excess payment made was the result of mistake of the authorities, and since the applicant had already retired from service and substantial amount being part of the excess amount paid to him, was already recovered, and he has not questioned the original re-fixation, the ends of justice would be met if a direction is issued to the respondents not to recover any further amount from the applicant in pursuance of the impugned orders. Ordered accordingly.
16. The OA is partly allowed as indicated above. No order as to costs.