Excess payment made to govt servant due to wrong/irregular pay fixation can always be recovered.

 In Chandi Prasad Uniyal and Ors. V.
State of Uttarakhand and Ors.
 the Supreme Court observed as
under:
“16. We are concerned with the
excess payment of public money which is
often described as “tax payers money”
which belongs neither to the officers who
have effected over-payment nor that of the
recipients. We fail to see why the
concept of fraud or misrepresentation is
being brought in such situations. Question
to be asked is whether excess money has
been paid or not may be due to a bona fide
mistake. Possibly, effecting excess payment
of public money by Government officers,
may be due to various reasons like
negligence,
carelessness,
collusion,
favouritism etc. because money in such
situation does not belong to the payer or the
payee. Situations may also arise where
both the payer and the payee are at fault,
then the mistake is mutual. Payments are
being effected in many situations without
any authority of law and payments have
been received by the recipients also without
any authority of law. Any
amount
paid/received without authority of law
can always be recovered barring few
exceptions of extreme hardships but not as

(2009) 3 SCC 475
2012 AIR SCW 4742

a matter of right, in such situations law
implies an obligation on the payee to repay
the money, otherwise it would amount to
unjust enrichment.
HIGH COURT OF CHHATTISGARH AT BILASPUR
WRIT PETITION (S) No. 54 of 2013

S.N.Chishti.
: VERSUS
 State of Chhattisgarh & Others.

SB: Hon’ble Shri Satish K. Agnihotri, J.

(Passed on 10th day of January, 2013)

1.
With the consent of learned counsel appearing for the
parties, the matter is heard finally.
2.
Challenge in this petition is to the order dated 22.05.2012
(Annexure P/1), whereby, the petitioner has been directed to
deposit a sum of Rs. 35,667/- holding it to be excess
payment made to the petitioner during the course of his
service.
3.
Shri Prajapati, learned counsel for the petitioner submits that the
punitive order of recovery has been passed without affording an
opportunity of hearing to the petitioner. Shri Prajapati also
submits that the issue asto whether recovery of excess payment
for no fault of the employee can be made without following the
principles of natural justice is no longer res integra. The same has
been settled by the Supreme Court in various decisions (See Syed
2
Abdul Qadir and others vs. State of Bihar and others 1). This
Court, relying on the above decisions has passed several orders,
directing refund of the amount, if any, recovered from the
employees, where the employees were not given any opportunity
to explain about the excess payment, if any, made to them.
4.
On the other hand, learned counsel appearing for the State while
supporting the impugned action taken by the respondent
authorities submits that any amount paid/received without any
authority of law can always be recovered.
In support of his
contention, learned counsel placed reliance upon the decision of
the Supreme Court rendered in Chandi Prasad Uniyal and Ors. V.
State of Uttarakhand and Ors.2 .
5.
In Chandi Prasad Uniyal (supra), the Supreme Court observed as
under:
“16. We are concerned with the
excess payment of public money which is
often described as “tax payers money”
which belongs neither to the officers who
have effected over-payment nor that of the
recipients. We fail to see why the
concept of fraud or misrepresentation is
being brought in such situations. Question
to be asked is whether excess money has
been paid or not may be due to a bona fide
mistake. Possibly, effecting excess payment
of public money by Government officers,
may be due to various reasons like
negligence,
carelessness,
collusion,
favouritism etc. because money in such
situation does not belong to the payer or the
payee. Situations may also arise where
both the payer and the payee are at fault,
then the mistake is mutual. Payments are
being effected in many situations without
any authority of law and payments have
been received by the recipients also without
any authority of law. Any
amount
paid/received without authority of law
can always be recovered barring few
exceptions of extreme hardships but not as
1
2
(2009) 3 SCC 475
2012 AIR SCW 4742
3
a matter of right, in such situations law
implies an obligation on the payee to repay
the money, otherwise it would amount to
unjust enrichment.
17. We are, therefore, of the
considered view that except few instances
pointed out in Syed Abdul Qadir case (2009
AIR SCW 1871) (supra) and in Col. B.J.
Akkara (retd.) case (2006 AIR SCW 5252)
(supra), the excess payment made due to
wrong/irregular pay fixation can always be
recovered.
6.
There is no quarrel on the point that no employee is entitled to
retain the public money as a matter of right. However, recovery of
payment, which is punitive in nature, cannot be passed without
following the basic principles of natural justice. According to the
learned counsel for the petitioner no notice has been given to the
petitioner to put forward his case as to whether the amount was
excess, as the decision was taken by the authorities ex parte, which
is not permissible under the provisions of law.
7.
Be that as it may, it is a trite law that no order prejudicing the
interest of an employee can be passed without affording an
opportunity of hearing. It is not the case of respondents that
opportunity of hearing was afforded to the petitioner, and the
present case is such wherein notice of hearing is to be dispensed
with.
8.
The Supreme Court, in Rajasthan State Road Transport
Corporation & another v. Bal Mukund Bairwa (2) 3, observed as
under:
“35.
Any order passed in violation of
the principles of natural justice save and
except certain contingencies of cases,
would be a nullity. In A.R.Antulay this
Court held: (SCC p. 660, para 55)
‘55. No prejudice need be proved
for enforcing the fundamental
3
(2009) 4 SCC 299
4
rights. Violation of a fundamental
right itself renders the impugned
action void. So also the violation of
the principles of natural justice
renders the act a nullity.’
47.
The purpose of the principles of
natural justice is prevention of miscarriage
of justice and hence the observance thereof
is the pragmatic requirement of fair play in
action. (See Sawai Singh v. State of
Rajasthan and Narinder Mohan Arya v.
United India Insurance Co. Ltd.).”
9.
Accordingly, the impugned communication dated 22.05.2012
(Annexure P/1) directing recovery of a sum of Rs. 35,667/- from the
salary of the petitioner, on account of excess payment made to the
petitioner, is hereby quashed. However, liberty is reserved to the
State/respondents to take steps for affording an opportunity of
hearing, if so advised, in accordance with law for recovery of
excess payment
10.
The petition is allowed to the extent indicated above. No order asto
costs.
JUDGE

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