1. The present writ petition has been filed by the petitioners (to be referred as 'the Department') challenging the order dated 05th May, 2022, passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur (to be referred as 'Tribunal'), whereby the adjustment of Rs.30,642, made by the Department, vide orders dated 16th October, 2018 and 31st October, 2018, was set aside.

2. Learned counsel for the petitioners submits that order of adjustment of the amount, excess paid to the respondent- employee, was rightly passed by the Department on account of audit objection.

3. Learned counsel further submits that the Department has every right to make recovery/adjustment of the excess payment made to its employee.

4. Learned counsel for the petitioners relied upon the judgments passed by the Apex Court in the case of Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. (2012) 8 SCC 147] as well as State of Punjab & Ors. Vs. Rafiq Masih (Whitewasher) [2014:INSC:479 : (2014) 8 SCC 883] [LQ/SC/2014/704] .

5. Learned counsel, appearing on behalf of the respondent, opposed the writ petition and submits that the learned Tribunal has not committed any illegality in passing the order dated 05th May, 2022.

6. Learned counsel further submitted that there is no misrepresentation on the part of the respondent-employee while receiving the amount from the Department.

7. Learned counsel further submits that if some amount has been paid in excess to the respondent-employee then the same cannot be recovered by the Department, as the respondent- employee was not at fault and she has not concealed or misrepresented anything to the Department while taking the said benefit.

8. Learned counsel submits that only small amount of Rs.30,642/- is involved in the present case, thus the present writ petition may be dismissed.

9. Learned counsel for the respondent relied on the judgment passed by the Apex Court in the case Thomas Daniel Vs. State of Kerala & Ors. (2022:INSC:498 : AIR 2022 SC 2153 [LQ/SC/2022/571 ;] ), whereby the Apex Court, after considering the law laid down in para Nos.10, 11, 12, 13 and 16, held as under :

"(10) In Sahib Ram v. State of Haryana and Others this Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the authority concerned, without any misrepresentation on part of the employees. It was held thus :

"5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."

(11) In Col. B.J. Akkara (Retd.) v. Government of India and Others this Court considered an identical question as under:

"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-61999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [ 1995 Supp (1) SCC 18 : 1995 SCC (L&S ) 248], Shyam Babu Verma v. Union of India (1994) 2 SCC 521 [LQ/SC/1994/186] : 1994 SCC (L&S) 683 : (1994) 27 ATC 121], Union of India v. M. Bhaskar [(1996) 4 SCC 416 [LQ/SC/1996/934] : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director (1997) 6 SCC 139 [LQ/SC/1997/753] : 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 for 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 courts not because of any right in the employees, but in equity, in exercise of judicial 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 his 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 recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected 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 the facts and circumstances of any particular case refuse to grant such relief against recovery.

29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7.6.1999 till the issue of the clarificatory circular dated 11.9.2001. Insofar 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 said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made."

(12) In Syed Abdul Qadir and Others v. State of Bihar and Others excess payment was sought to be recovered which was made to the appellants-teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/ understanding of a Rule or Order. It was held thus:

"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."

(13) In State of Punjab and Others v. Rafiq Masih (White Washer) and Others wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:

"8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.

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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, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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

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

(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.

(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.

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

(16) In the result, the appeal succeeds and is accordingly allowed. The Judgment and order of the Division Bench dated 02.03.2009 and also of the learned Single Judge of the High Court dated 05.01.2006 impugned herein, and the order dated 26.06.2000 passed by the Public Redressal Complaint Cell of the Chief Minister of Kerala and the recovery Notice dated 09.10.1997 are hereby set aside. There shall be no order as to costs."

10. Heard learned counsel for the parties and perused the material available on record.

11. This writ petition, filed on behalf of the Department, deserves to be dismissed for the reason; firstly there is no misrepresentation or concealment or fraud on the part of the respondent-employee while taking so called excess amount from the Department; secondly the petitioner-Department has issued the order of recovery/adjustment after two years of retirement of the respondent-employee, which in our considered view, would cause great hardships to a retired employee; thirdly in view of the judgment passed by the Apex Court in the case of Thomas Daniel (supra), no case is made for interference by this Court under Article 227 of the Constitution of India.

12. We see no jurisdictional error by the learned Tribunal in passing the order dated 05th May, 2022.

13. In that view of the matter, the present writ petition stands dismissed.