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Shiv Sewak v. State Of U.P. And Others - WRIT - A No. 58572 of 2006  RD-AH 18368 (30 October 2006)
Court No. 38
Civil Misc. Writ Petition No. 58572 of 2006
State of U.P. and others.
Hon'ble V.K. Shukla,J.
Petitioner was performing and discharging his duty in Health Department in district Fatehpur. During continuance of petitioner in service, various fixation had been made as was admissible to the petitioner and with the aforementioned fixation, petitioner attained the age of superannuation with all benefit. After petitioner attained the age of superannuation, pension papers were transmitted and then it is reflected that wrong fixation had been made and excess payment had been made, as such said amount of Rs. 83,787/- is liable to be recovered from the retiral benefit of the petitioner. At this juncture present writ petition has been filed.
Sri Pankaj Kumar Srivastava, 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, directive dated 17.7.2006, 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 .
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