The main legal point established is that if the excess amount is not due to the employee's misrepresentation or fraud, but to the mistake of the employer, it is not recoverable. The judgment also emphasized the use of judicial discretion to relieve employees from hardship caused by recovery of excess payments.

Pushpa Sathyanarayana, J.

This writ appeal is directed against the order dated 01.03.2018 passed by the learned single Judge in W.P(MD)No.19822 of 2014.

2. The brief facts of the case are that the first respondent/writ petitioner was a retired employee of the Southern Railways having retired on 31.08.2007. He had been receiving his pension after retirement through the second appellant/bank in his Savings Bank Account. It is stated that the second appellant is deducting a sum of Rs. 2,500/- from the pension amount of the first respondent from May, 2014, for the excess amount said to have been received by him. The said amount is deducted even without any notice to the first respondent or even without conducting any enquiry. The reason stated is that there was an error in calculating the Dearness Allowance eligible to the first respondent/writ petitioner and only later, it was noticed and it was rectified.

3. Aggrieved over the same, the first respondent/writ petitioner filed the writ petition contending that he is a senior citizen and the excess amount paid was neither due to any mistake committed or any misrepresentation or fraud on the part of the writ petitioner and it was only due to the mistake committed by the officials of the appellants/bank.

4. The learned single Judge relied on the settled principle that any amount paid or received due to negligence and carelessness of the appellant cannot be recovered as a mater of right.

5. The learned single Judge relied on the judgment of the Honourable Supreme Court in Syed Abdul Qadir and Others v. State of Bihar and Others, (2009) 3 SCC 475, wherein it has been held that the relief against the recovery is granted by Courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid or in cases where the error is detected or corrected within a short time of wrong payment, Courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.

6. Reliance was also placed by the learned single Judge on the judgment in Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 and the judgment in Punjab and Others v. Rafix Masih (White Washer), (2015) 5 CTC 455.

7. The basic principle laid down in all the above judgments is that if the amount paid in excess is not due to the misrepresentation or fraud on the part of the employee/payee, but due to the mistake committed by the employer, it is not recoverable.

8. Keeping the above principles laid down by the Honourable Supreme Court in mind, the writ petition was allowed the impugned order passed by the second appellant was set aside. Further, there was a direction to the second appellant/second respondent to refund the amount already deducted from the writ petitioner's pension forthwith.

9. Aggrieved by the said order, the present writ appeal is preferred by the appellants/bank.

10. The learned counsel appearing for the appellants contends that there is no employer-employee relationship between the second appellant and the first respondent. The bank is not the employer of the writ petitioner and it is only acting as an agent and therefore, the decisions referred to by the learned single Judge are not applicable to the present case on hand.

11. We have heard the submissions made on either side and perused the materials available on record.

12. In fact, it is pointed out that the amount already recovered from the first respondent/writ petitioner has been deposited before the Railway administration.

13. As admittedly, there is no privity of contract between the writ petitioner and the appellants/bank and even the recovered amount has been deposited to the Railway administration, the appellants cannot seek to recover it from the individual employee. They