Respondent-writ petitioner v. Appellant University

4. Learned Single Judge did not find any merit in the stand of the Universi ty and held that financial benefit having been granted to the writ petitioner mo re than 10 years back could not be recovered after long years of service. The fi nding recorded by learned Single Judge is as under : (cid:28)No material to the aforesaid effect has been laid before the Court by the respo ndent University. In fact, no such stand has been taken by the University in the affidavit filed. That apart, the basis for the decision arrived at by the Board of Management in its meeting held on 22.9.2005 on the basis of which recovery h as been ordered, is also not before the Court. The learned counsel for the Unive rsity who has not been able to place before the Court the minutes of the meeting of the Board of Management dated 22.9.2005, has prayed for sometime to enable t he said records to be placed before the Court. As the request for time was made after conclusion of the arguments and furthermo re as the said records should have been placed before the Court at the hearing, the Court was not inclined to postpone the hearing any further. Hearing of Court cases cannot be indefinitely delayed due to the failure of a contesting party t o place before the Court the requisite materials on time. In such a situation th e Court will have to hold that the respondent University in the present case has been unable to sustain the plea that the decision of the Board of Management wa s founded on reasonable and acceptable facts. The above apart, the financial benefits in question had been granted to the peti tioner on the basis of a reasoned order dated 19.9.1995 passed by the Vice Chanc ellor of the University. The petitioner retired from service on 30.11.2001 after drawing the benefits. No reason has been cited as to why the anomaly, if any, i n granting benefits to the petitioner could not have been noticed by the Univers ity during the long years of service rendered by the petitioner or even immediat ely following his retirement. The petitioner who has already drawn the benefits granted to him by the University by means of an order of the Vice Chancellor, in the considered view of the Court, should not be left to suffer recovery proceed ings as well as reduction of pension payable. Any such action against the petiti oner, at this stage, is bound to result in unforeseen difficulties and hardships to the petitioner. Taking into account all the aforesaid facts, the Court is of the view that in th e facts of the present case it would be just and proper to hold that the recover y sought to be made from the petitioner’s pensionary dues should receive the Cou rt’s interference. Accordingly, I allow this writ petition; set aside the order dated 5.12.2005 and direct that the recovery, if any already made, shall forthwi th be returned to the petitioner. The consequential orders passed including the order dated 3.7.2007 refixing the pension payable to the petitioner shall also s tand interfered with. (cid:29)

5. We have heard learned counsel for the parties.

6. Only contention raised on behalf of the appellant is that the writ petit ioner was not entitled to promotion. This submission cannot be accepted. Neither it has been shown that recovery from pension could be effected after retirement , without enquiry, nor the action initiated after 10 years of stepping up of pay has been shown to be fair. In these circumstances, the view taken by learned Si ngle Judge is consistent with the law laid down by the Hon’ble Supreme Court. In Col. B.J. Akkara (Retd.) v. Government of India, (2006) 11 SCC 709, it was obse rved : (cid:28)27. The last question to be considered is whether relief should be granted agai nst the recovery of the excess payments made on account of the wrong interpretat ion/ understanding of the circular dated 7-6-1999. This Court has consistently g ranted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. S tate of Haryana 1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248, Shyam Babu Verma v. Union of India (1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121, Union of India v. M. Bhaskar (1996) 4 SCC 416 : 1996 SCC (L&S) 967 and V. Gangaram v . Regional Jt. Director, (1997) 6 SCC 139 : 1997 SCC (L&S) 1652): (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle f or calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

28. Such relief, restraining back recovery of excess payment, is granted by cour ts not because of any right in the employees, but in equity, in exercise of judi cial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of h is family. If he receives an excess payment for a long period, he would spend it , genuinely believing that he is entitled to it. As any subsequent action to rec over the excess payment will cause undue hardship to him, relief is granted in t hat behalf. But where the employee had knowledge that the payment received was i n excess of what was due or wrongly paid, or where the error is detected or corr ected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on t he facts and circumstances of any particular case refuse to grant such relief ag ainst recovery.

29. On the same principle, pensioners can also seek a direction that wrong payme nts should not be recovered, as pensioners are in a more disadvantageous positio n when compared to in-service employees. Any attempt to recover excess wrong pay ment would cause undue hardship to them. The petitioners are not guilty of any m isrepresentation or fraud in regard to the excess payment. NPA was added to mini mum pay, for purposes of stepping up, due to a wrong understanding by the implem enting departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular da ted 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insof ar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the sai d circular has been upheld and as pensioners have been put on notice in regard t o the wrong calculations earlier made. (cid:29)

7. In view of the above, we do not find any ground to interfere wit h the view taken by the learned Single Judge.

8. The appeal is dismissed.