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Yuddha Veer Saran v. State Of U.P. And Others - WRIT - A No. 46940 of 2006  RD-AH 18148 (26 October 2006)
Court No. 38
Civil Misc. Writ Petition No. 46940 of 2006
Yuddha Veer Saran
State of U.P. and others.
Hon'ble V.K. Shukla,J.
Brief background of the case is that petitioner had been performing and discharging his duty as Head Clerk. Petitioner attained the age of superannuation on 31.1.2005 and was getting his salary in the pay scale of Rs. 5000-8000 and Rs. 7700/- paid to him. Provisional pension was accorded to petitioner on the basis of last drawn of salary. Thereafter, irregularities and discrepancy have been noted in the fixation of pay of petitioner. It was pointed out that fixation was wrongly made on 1.1.1986, promotional time scale has also been incorrectly accorded and as such excess payment, which has been made, same is liable to be recovered. Detail chart was given in this respect. Notice was issued and petitioner submitted his reply and categorically mentioned that there is no excess payment. Thereafter fixation has been made on 25.2.2006 and on the basis of the same directives have been issued for recovery of Rs. 30,494.00. At this juncture present writ petition has been filed.
This court on 29.8.2006 accorded time for filing counter affidavit and no counter affidavit has been filed and thereafter with the consent of the parties present writ petition has been taken up for final hearing and disposal.
Sri Ram Mohan, Advocate, learned counsel for the petitioner contended with vehemence that in the present case fixation was made by the respondents and there was no fraud or misrepresentation on the part of the petitioner, as such after being superannuated , no recovery can be made from the petitioner.
Learned Standing Counsel on the other hand contended that once, it is admitted that incorrect fixation was made, then State Government in all eventuality is liable to recover the amount.
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 also directives, which has been issued dated 25.3.2006 by the respondents to recover a sum of Rs. 30,494.00 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 .
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