Equitable principles prohibiting recovery against the employee in the absence of misrepresentation or fraud, and the exceptional categories where recovery cannot be effected.

R.V. Ghuge, J.

1. Rule. Rule made returnable forthwith by the consent of the parties and heard finally. This Court has considered the submissions of the rival parties at length. The petitioners have challenged the judgment and order dated 19.11.2013, delivered by the Industrial Court, Jalgaon in Complaint (ULP) No. 38 of 2009, filed by the respondent.

2. A short issue has been raised for the consideration of this Court. In two other Writ Petition Nos. 741 and 745 both of 2013, this Court has decided a similar challenge on 24.9.2014.

3. The respondent was appointed as a Lower Division Clerk ("LDC") in 1977. She passed her lower division grade examination on 30.3.1980 and later on she became eligible for promotion as Upper Division Clerk ("UDC"). On promotion, she was working as UDC till 1997, when she was transferred from Jalgaon to Parbhani. In order to continue at Jalgaon, due to personal reasons, she opted for a reversion from the post of UDC to LDC. She joined the office of the petitioners at Jalgaon in 1997 on the reverted post of LDC.

4. On 5.11.2008, the respondent gave an application for fixation of her pay. It was in June 2009 that the petitioners realised that the respondent was paid an excess salary of Rs. 1,94,637/- from October 1997 till May 2009. An order dated 29.5.2009 was issued for carrying out recovery of the said amount from her.

5. The respondent preferred Complaint (ULP) No. 38 of 2009 before the Industrial Court at Jalgaon on 10.7.2009 and challenged the recovery under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("the said Act"). By an interim order dated 17.8.2009, the recovery was stayed. The respondent stood retired on attaining the age of superannuation on 31.3.2012. By the impugned judgment dated 19.11.2013, the complaint was allowed by the Industrial Court, Jalgoan.

6. The petitioners submit that due to inadvertence and oversight, the petitioners failed to record that the respondent had opted to be reverted from UDC to LDC. She continued to draw her salary on the basis of UDC and therefore, an excess payment of Rs. 1,94,637/- was made to her. No loss or harm would be caused to the respondent if the said recovery is effected as she was not legally entitled to earn the same and there cannot be a legitimate expectation. The petitioners have also canvassed the principles of unjust enrichment against the respondent.

7. The learned Advocate for the respondent, while supporting the impugned judgment, submits that the respondent is a Senior Citizen and has already retired on 31.3.2012. She had been constantly sending reminders and representations to the petitioners for fixation of her salary. Despite the same, the petitioners issued a letter dated 3.8.2004 holding her to be eligible to the salary of the higher post. This letter is not retracted.

8. She has not indulged in any fraud or mis-representation. The negligence and laxity on the part of the petitioners cannot be countenanced and she cannot be compelled to face the brunt of the wrongful actions of the petitioners. Being an aged person and surviving on pension, recovery of the amount of Rs. 1,94,637/- would cause severe hardships and irreparable harm to the respondent, are her contentions.

9. I have considered the rival contentions. The Apex Court in the case of (Syed Abdul Qadir and others Vs. State of Bihar and others), (2009) 3 S.C.C. 475 (Three Judges' Bench) has concluded that equitable principles would prohibit allowing of a recovery against the employee, where there is no misrepresentation or fraud on the part of the employee. For the wrong or mistake committed by the employer, an employee cannot be held responsible. The Court can permit recovery only when the over-payment is detected within a short time.

10. The Apex Court, in the case of Syed Abdul Qadir (supra), has held as under:-

"27. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/al