An employer cannot recover excess salary paid to an employee voluntarily without any fraud or misrepresentation, even if there was a mistake in fixing the salary.

The petitioner was appointed as Overseer in Tube-well Division Faizabad in 1955. The pay-scale of Overseer was revised from time to time. Vide order dated 21-9-1982 passed by the Executive Engineer, Chittorgarh Reservoir Division Balrampur, district Gonda, the petitioners salary was fixed at Rs. 900 per month with effect from 1-7-1979. Thereafter, he was paid salary at the said rate regularly. In 1991 the petitioner was promoted to the post of Assistant Engineer in the Department. On 30-6-1993 he retired from service on attaining the age of superannuation. After retirement he has been paid provisional pension and 90% amount on the gratuity vide order dated 1-11-1993. However, vide letter dated 3-9-

1994 the Accounts Officer in the Office of Chief Engineer, U. P. Lucknow informed the respondent No. 3 that the fixation of the petitioners salary vide order dated 21-9-1982 with effect from 1-7-1979 at Rs. 930 was wrong and in fact ha ought to have been paid at the rate of Rs. 890 per month with effect from 1-7-1979. His salary was, accordingly, refixed with effect from 1-7-1979 at the rate of Rs. 890 per month. Thereafter, vide order dated 25-2-1915 a sum of Rs. 15,709 which is said to have been paid to the petitioner in excess, is sought to be deducted from his pension and gratuity. Being aggrieved by it, the peti tioner filed this writ petition.

2. Respondents have filed counter-affidavit and the petitioner has filed rejoinder affidavit in reply thereto. We have heard learned counsel for the petitioner and learned Standing Counsel for the Respondents.

3. If the salary of an employee has been fixed and paid by his employer voluntarily without there being any fraud or misrepresentation by the employee, it is not open to the employer to recover any amount of the salary already paid to the employee, even if, later on, it is found that the employee was not entitled to the salary at the rate/scale of pay unless the order fixing the salary/pay-scale is corrected by the employer shortly after it was passed. Reference in this connection my be made to the decision of Supreme Court in Sahib Ram v. The State of Haryana, JT 1995 (1) SC 24 wherein it was laid down as under :

"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 grant ing him the relaxation. Since the date of relaxation the appel lant had been paid his salary on revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of higher pay scale was given to him but by wrong construction made by the principal for which the appel lant 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 scale prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs. "

In the above case, the concerned employee (Librarian) was given the revised pay scale of Rs. 700-1600. Subsequently, it was discovered that the employee was not entitled to that scale, and therefore, the order was passed for recovering the excess amount paid to him. This order was set aside by the Supreme Court.

4. A Division Bench of this Court in B. N. Singh v. State of U. P. , 1979 ALJ 184 has also laid down that if an employee has been paid excess wages voluntarily by the employer without there being any fraud or mis representation committed by the employee, the excess amount cannot be recovered from him. Relevant extract of the judgment is reproduced below :

"it is well settled principle that wages paid to an employee by an employer voluntarily in bonafide manner without there being any element of fraud or misrepresentation, cannot be recovered from the employee subsequently merely on the ground that some mistake of interpretation of rules might have been committed by the empl

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