IMPORTANT POINT
Recovery/adjustment cannot be made if there is no misrepresentation or fraud on the part of the employee, and the court should consider the hardship caused to the employee, especially in the case of a retired employee.

ORDER :

1. The present writ petition has been filed by the petitioners (to be referred as ‘the Department’) challenging the order dated 05th May, 2022, passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur (to be referred as ‘Tribunal’), whereby the adjustment of Rs.30,642, made by the Department, vide orders dated 16th October, 2018 and 31st October, 2018, was set aside.

2. Learned counsel for the petitioners submits that order of adjustment of the amount, excess paid to the respondent-employee, was rightly passed by the Department on account of audit objection.

3. Learned counsel further submits that the Department has every right to make recovery/adjustment of the excess payment made to its employee.

4. Learned counsel for the petitioners relied upon the judgments passed by the Apex Court in the case of Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. [(2012) 8 SCC 147] as well as State of Punjab & Ors. Vs. Rafiq Masih (Whitewasher) [(2014) 8 SCC 883].

5. Learned counsel, appearing on behalf of the respondent, opposed the writ petition and submits that the learned Tribunal has not committed any illegality in passing the order dated 05th May 2022.

6. Learned counsel further submitted that there is no misrepresentation on the part of the respondent-employee while receiving the amount from the Department.

7. Learned counsel further submits that if some amount has been paid in excess to the respondent-employee then the same cannot be recovered by the Department, as the respondent-employee was not at fault and she has not concealed or misrepresented anything to the Department while taking the said benefit.

8. Learned counsel submits that only small amount of Rs.30,642/- is involved in the present case, thus the present writ petition may be dismissed.

9. Learned counsel for the respondent relied on the judgment passed by the Apex Court in the case Thomas Daniel Vs. State of Kerala & Ors. (AIR 2022 SC 2153), whereby the Apex Court, after considering the law laid down in para Nos.10, 11, 12, 13 and 16, held as under :

“(10) In Sahib Ram v. State of Haryana and Others this 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.”

(11) In Col. B.J. Akkara (Retd.) v. Government of India and Others this Court considered an identical question 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 7-61999. 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]):