JUDGMENT :

1. By means of the instant writ petition, the Union of India has approached this Court challenging the judgment and order dated 27.09.2022 passed by the Central Administrative Tribunal, allowing an original application filed by the respondent and setting aside an order dated 17.06.2021 by which recovery of an amount of Rs. 7,54,014/-only was ordered to be made from the gratuity payable to the respondent. The order dated 17.06.2021 mentions that the respondent had been transferred on 29.07.2008 as per his own request and his salary had erroneously been fixed at Rs. 72,100/-in place of Rs. 66,000/-. The salary paid in excess consequent to a wrong fixation made in the year 2008, has been sought to be recovered from the respondent by means of the order dated 17.06.2021.

2. The respondent has retired on attaining the age of superannuation on 30.06.2021 and the order dated 17.06.2021 was passed when the respondent was on the verge of his retirement.

3. The learned counsel for the appellant has placed before this Court a decision of the Hon'ble Supreme Court in the case of Chandi Prasad Uniyal v. State of Uttrakhand, (2012) 8 SCC 417, wherein the Hon'ble Supreme Court has held that except few instances pointed out in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 and Col. B.J. Akkara (retd.) v. Government of India and Ors., (2006) 11 SCC 709, the excess payment made due to wrong/ irregular pay fixation can always be recovered.

4. In Col. B. J. Akkara (supra) the Hon'ble Supreme court held as follows:-

“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, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Union of India v. M. Bhaskar (1996) 4 SCC 416 and V. Gangaram v. Regional Jt. Director (1997) 6 SCC 139:

(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 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. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But 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 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.

29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments.”

(Emphasis Supplied)

5. In Syed Abdul Qadir (supra), Hon'ble Supreme Court held that:-

“57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allo