V.Kaliyamurthy Vs the Registrar General

Prayer: Calling for the records in impugned proceedings in D.No.990/2023 dated 12.01.2023 passed by the 2nd Respondent for recovery of excess pay and allowance of Rs.1,12,758/- for the period from 16.07.2000 to 30.06.2022 from the petitioner and quash the same.

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For Petitioner: Mr.G.Balamanikandan

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For Respondents: Mr.Durai Eswar For Mr.V.Balamurugan *****

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O R D E R

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(Order of the Court was made by S.M.Subramaniam J.)

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The Writ Petition has been filed to set aside the order of the

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2^nd respondent in D.No.990/2023 dated 12.01.2023 in respect of

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recovery of excess pay and allowance of Rs.1,12,758/- for the period from 16.07.2000 to 30.06.2022 from the petitioner.

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Petitioner was appointed as Night Watchman on 19.08.1998 and subsequently, promoted as Office Assistant on 16.07.2000. He attained the age of superannuation on 30.06.2022 in the post of Senior Bailiff. First Respondent, after a long time issued Audit Report and directed the 2^nd Respondent that there was inadmissible sanction of one increment on transfer from the post of Night Watchman to the post of Office Assistant on the ground that the Class-IV Employees may be appointed to the Class-III posts only by way of transfer of service and the same cannot be treated as promotion. Hence, the excess pay and allowances on pay fixation for the period from 16.07.2000 to 30.06.2022 amounting to Rs. 1,12,758/- may also be worked out and to be recovered. Aggrieved by the order of the 2^nd Respondent, the petitioner filed the present writ petition.

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Unjust gain of public money is impermissible under law. In

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such circumstances, the Authorities Competent are empowered to rectify the errors in fixation of pay and grant the correct pay as applicable. Thus, the revised pay fixation granted by the respondents in accordance with the Pay Rules and Government Orders shall continue.

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However, the respondents are unable to establish that there was a misrepresentation on the part of the employee during fixation of pay. It is an error committed by the Establishment for which the petitioner cannot be penalised after a lapse of many years. Recovery of excess salary at this length of time would result in extreme hardship to

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the employee.

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In this regard, the Hon'ble Supreme Court of India also enumerated the legal principles in the case of State of Punjab v. Rafiq Masih¹ and held as hereunder:

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“ 18.It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarize the following few situations, wherein recoveries by the employers, would be impermissible in law:

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(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

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(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

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(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

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12015 4 SCC 334

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(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

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(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”

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In view of the facts and circumstances, the revision of pay

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effected pursuant to the Audit Objection is confirmed, but the recovery of excess pay alone is set aside. The excess amount recovered on account of the impugned order is directed to be re-paid to the petitioner within a period of 12 weeks from the date of receipt of a copy of this order. Accordingly, the impugned order is set aside, with reference to the recovery of excess salary alone.

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