The main legal point established in the judgment is that recovery of excess payment is impermissible if it would cause undue hardship, and judicial discretion may be exercised to grant relief against recovery.

JUDGMENT

M. W. Chandwani, J. - Rule. Rule made returnable forthwith. Heard the learned counsel for the parties.

2. Whether an employer can recover an amount paid in excess to a deceased employee from the legal heirs of the deceased employee, on the basis of undertaking given by the deceased employee is a question raised in this petition.

3. The petitioner is wife of deceased Bhagirath Meshram (hereinafter referred the 'deceased employee'), who was employed as Junior Lecturer at Zilla Parishad High School. He expired on 06.12.2016 while he was in service. The petitioner started getting Family Pension of Rs.14,250/- per month. While the grade pay was being fixed by the respondents, the deceased had given an undertaking to refund an excess amount, if any, paid to him. Pursuant to the said undertaking by the deceased employee, respondent no. 2 by two communications dated 18. 01.2021 and 22.04.2021 asked the petitioner to execute a consent letter for recovery from pension an excess amount of Rs.2,62,841/- paid to the deceased employee due to wrong fixation of grade pay, which are under challenge in this writ petition.

4. Having heard the learned Counsel for the petitioner as well as learned Counsel for the respondents, let's briefly note the law with regard to recovery of excess payment made to an employee.

5. In Sahib Ram v. State of Haryana and Others reported 1999 Supp (1) SCC 18, the Supreme Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the authority concerned, without any misrepresentation on part of the employees. It was held thus :

"5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."

6. In Col. B.J. Akkara (Retd.) v. Government of India and Others reported in (2006) 11 SCC 709, the Supreme Court held as under:

"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/ understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121], Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652]):

(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/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

28. Such relief, restraining back recovery 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 re