Recovery of excess salary cannot be enforced without prior hearing, especially when no fraud or misrepresentation by the employee is established.

JUDGMENT :

MANISH MATHUR, J.

1. Heard learned counsel for petitioner and learned State Counsel for opposite parties.

2. Petition has been filed challenging order dated 29.09.2025 and 30.10.2025 whereby pay-fixation of petitioner has been redetermined with orders of recovery also being issued on allegation that benefit of first A.C.P. granted to petitioner on 28.06.2013 was incorrectly granted.

3. It has been submitted that impugned orders have been passed after superannuation of petitioner from service on 31.07.2025 and by means of impugned order, recovery has been effected without affording him any opportunity of hearing, for benefits which petitioner has been drawing for the past twelve years. It is submitted that impugned order does not indicate any complicity or misrepresentation on part of petitioner in the alleged excess payment of salary. He has relied upon judgment rendered by Hon'ble the Supreme Court in State of Punjab & others v. Rafiq Masih (White Washer) & others reported in (2015) 4 SCC 334 .

4. Learned State Counsel has not been provided written instructions in this matter but submits that impugned orders have been passed in view of fact that due to some error, excess payment has been made to petitioner.

5. In view of fact that ACP granted to petitioner with effect from 28.06.2013 has been redetermined and benefits withdrawn on the allegations that the same were provided to him/her incorrectly, has been clearly indicated in impugned order. Since the facts have clearly been brought on record by means of impugned order, the petition is being adjudicated upon at the admission stage itself in terms of judgment rendered by the Supreme Court in the case of Mohinder Singh Gill & others v. Chief Election Commissioner, New Delhi and others [ AIR 1978 SC 851 ] dispensing with requirement of filing of counter affidavit.

6. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, it is evident from material on record that re-fixation of pay of petitioner with effect from year 2013 has been effected along with directions for recovery but it is also evident that prior to passing of impugned order, no opportunity of hearing has been provided to petitioner.

7. Hon'ble the Supreme Court in State of Punjab & others v. Rafiq Masih (supra) has clearly enunciated that recovery cannot be effected from salary of Class III and Class IV employees particularly when there is no allegation of any fraud or misrepresentation on part of the employee.

8. Learned counsel for petitioner has relied upon judgment rendered by Hon'ble the Supreme Court in Sushil Kumar Singhal v. Pramukh Sachiv Irrigation Department and others reported in (2014)16 SCC 444 :2014(2) ESC 271 (SC) in which Hon'ble the Supreme Court was seized of a similar dispute and placing reliance on Government Order dated 16.01.2007 has held that if any mistake had been committed in pay fixation prior to retirement then by virtue of Government Order dated 16.01.2007 neither any salary paid by mistake could have been recovered nor pension could have been reduced since records of 34 months prior to superannuation only could be examined for the purpose of grant of pension.

9. The said aspect has also been considered by Hon'ble Supreme Court in the case of Jagdish Prasad Singh v. State of Bihar and others (2024) 8 SCR 377 in the following manner: -

"21. We firmly believe that any decision taken by the State Government to reduce an employees pay scale and recover the excess amount cannot be applied retrospectively and that