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Murlidhar Mishra And Others v. State Of U.P. & Others - WRIT - A No. 12133 of 2007  RD-AH 11041 (3 July 2007)
Court No. 38
Civil Misc. Writ Petition No. 12133 of 2006
Murlidha Mishra & others
State of U.P. and others.
Hon'ble V.K. Shukla,J.
Petitioner is questioning the validity of the orders dated 17.01.2007 and 14.02.2007 passed by respondent no. 4 on the pretext that incorrect fixation was made when petitioner is continuing in service and said amount is liable to be recovered.
In order to appreciate the respective argument,judicial pronouncement on this aspect of the matter is being looked into Hon'ble Apex Court in the case of Shyam Babu Sharma and others Vs. Union of India and others reported in (1994) 2 SCC 521 has taken the view that higher pay scale erroneously given to an incumbent and incumbent having received higher scale due to no fault of his, it shall be just and proper not to recover any excess amount already paid to them. Division Bench of this court in the case of Bindeshwari Sahai Srivastava Vs. Chief Engineer, Irrigation Department, Lucknow and others 1996 A.W.C.947 has taken similar view that it is well settled principle that wages paid to an employee by employer voluntarily in bonafide manner without there being any fraud or misrepresentation , cannot be recovered from the employee subsequently merely on the ground that some mistake committed by employer for which employee cannot be held responsible.
This court in identical matter decided on 23.11.2004 Awadh Nath Tripathi Vs. Chief Development Officer, Panchayat, Sant Kaqbir Nagar and others 2005(5) AWC 4055 has taken the same view and has concluded that in view of aforesaid legal position, it is not open to the respondents to recover any amount from the petitioner on the fact mentioned in the impugned order that salary of petitioner was wrongly fixed in the selection grade.
Consequently, in the present case, directive dated 17.01.2007 and 14.02.2007, which has been issued by the respondents to recover the amount from petitioner is legally not sustainable and it is hereby quashed and set aside . In case respondents have recovered the aforesaid amount, then in that event respondents are directed to return the aforementioned amount within period of three months from the date of production of certified copy of this order.
Next question is that as to whether the State Authorities can re-fix the salary of the petitioner if there had been a mistake in fixation thereof, for the purposes of revising his pension etc. In the opinion of the Court if there has been a mistake in the matter of calculation/fixation of salary of an employee it is always open to the State Authorities to correct the mistake. However, the correction can only be made after affording opportunity of hearing to such employee and no ex parte order can be passed. The re-fixation of salary, after such correction, would take effect only from the date of the correction.
With these observations, writ petition is allowed .
Dated:- 3rd July, 2007
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