Recovery of excess salary from employees in Class-III service is impermissible if no fraud occurred and payment was based on wrong fixation, aligning with principles of equity.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Ms N. Dey, the learned counsel appearing on behalf of the petitioner. Mr. A. K. Dutta, the learned counsel appears on behalf of the respondents Nos.1, 2 & 3.

2. The present writ petition has been filed challenging the Office Order dated 25.06.2021 as well as the Office Order dated 19.01.2022 and further seeking certain directions for pay fixation of the petitioner at Rs.13,860/-.

3. The grievance of the petitioner is that in view of the wrong fixation of pay made by the authorities since 01.01.2006, the petitioner was apparently given a higher salary than her entitlement which the petitioner was not aware of. However, the respondents issued the impugned Office Order dated 25.06.2021, wherein a decision had been taken to recover Rs.20,000/- from the monthly salary of the petitioner which would eventually offset the excess salary received by the petitioner. Accordingly, in terms with the Office Order dated 25.06.2021, Rs.20,000/- has been deducted from the salary of the petitioner and another additional sum of Rs.5,000/- per month from her salary w.e.f. January, 2022.

4. The learned counsel for the petitioner submitted that the petitioner is holding Grade-III posts and in terms of the judgment of the Apex Court in the case ofState of Punjab and others Vs. Rafiq Masih (White Washer) , reported in(2015) 4 SCC 334, the recovery of excess salary paid to the petitioners, due to a wrong fixation of pay made from 01.01.2006 by the respondents, cannot be permitted.

5. The learned counsel for the respondents fairly submitted that the present case is covered by the judgment of the Apex Court in the case of Rafiq Masih (White Washer) (supra) in as much as the wrong fixation of pay had been made from 01.01.2006 and there is nothing to show that the said wrong fixation of pay had been made, on the basis of any fraud or misrepresentation on the part of the petitioner. Further, the petitioner belongs to Class-III (Group-C) post, and as such, in terms with paragraph No.18 of the judgment of the Apex Court in the case of Rafiq Masih (White Washer) (supra), it would be impermissible to recover the excess salary paid to them.

6. I have heard the learned counsels for the parties.

7. In the case ofShyam Babu Verma & Others vs. Union of India & Others, reported in(1994) 2 SCC 521, the Apex Court was of the view that recovery after several years of paying the higher pay scale would not be just and proper, as the same was not due to the fault of the employee.

8. In the case ofCol. (Retd. ) B. J. Akkara vs Govt. of India & Others, reported in(2006) 11 SCC 709, the Apex Court has held that restraining 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. It was further held that a Government servant 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. Any subsequent action to recover the excess payment would cause undue hardship to him. The Apex Court further held that 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 Apex Court thus held that 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.

9. In