JUDGMENT :

Manoj Kumar Tiwari, J.

Petitioners were appointed as Constable in Police Department and they retired upon completing the age of superannuation. They are aggrieved by recovery made from their retiral dues.

2. Since common questions of fact and law are involved in these writ petitions, these are being heard and decided together by this common judgment. However, for brevity, facts of Writ Petition (S/S) No. 335 of 2023 alone are beingconsidered and discussed here.

3. Petitioner in Writ Petition (S/S) No. 335 of 2023 was appointed as Constable in State Police on 1.1.1982 and he retired from the post of Sub

4. A counter affidavit has been filed by Superintendent of Police, Rudraprayag, wherein it is stated that the Finance Controller, Police Headquarters found the pay fixation of the petitioner to be erroneous.

5. Learned State Counsel, by referring to the counter affidavit filed on behalf of respondent no. 4, submits that due to mistake, the pay of the petitioner was fixed at higher level than what he was entitled to and ultimately the competent authority corrected the mistake and after calculation, it was found that excess amount was paid to the petitioner due to wrong fixation of pay, which has now been deducted from his gratuity.

6. Hon’ble Supreme Court in the case of State of Punjab v. Rafiq Masih, reported as (2015) 4 SCC 334, has held that in certain conditions, excess payment mistakenly made by the employer shall not be recoverable.

7. Learned State Counsel, however, submits that the protection of the aforesaid law would not be available if (i) the concerned employee has received excess payment by playing fraud or by adopting deceitful means; or (ii) he, before receiving the amount, has given an undertaking that he will refund whole or part of the amount, in case it is later found that he is not entitled thereto.

8. Elaborating his submission, learned State Counsel contends that an employee, who received excess payment, if is responsible for receiving such excess payment, then he will not be entitled to any protection, in law or in equity, against recovery of such excess amount. Learned State Counsel further submits that no one can be permitted to take benefit of his own wrong, therefore an employee, who has induced his employer to pay him excess amount by misrepresentation, cannot then contend that whatever is received by him cannot be recovered.

9. Learned State Counsel relied upon a judgment rendered in the case of High Court of Punjab and Haryana & Others v. Jagdev Singh, reported as (2016) 14 SCC 267. In the said judgment, Hon’ble Supreme Court held that the principle that no recovery can be made from retired employees, or employees who are due to retire within one year, will not be attracted to a case where the employee to whom the excess payment is made was clearly placed on notice that any payment found to have been made in excess would be required to be refunded and the employee furnished an undertaking while opting for the revised pay scale. Para 9, 10, 11 and 12 of the said judgment are extracted below:

“9 The submission of the Respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the state. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the Respondent was clearly on notice of the fact that a future re-fixation or revision may warrant an adjustment of the excess payment, if any, made.

10 In State of Punjab v. Rafiq Masih this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the emp