Recovery of over payment of salary paid by mistake after retirement of employee is not permissible

The Hon'ble Supreme Court in case of Syed Abdul 

Qadir  has observed that where the excess payment is 
made   to   an   employee   not   on   account   of   any 
misrepresentation or fraud on his part, and that the employee 
was not aware that the amount paid to him was in excess to 
his entitlement, then in such cases, the recovery should not be 

made.  It has been further observed that if the employee has 
either retired or is on the verge of retirement, such recovery 
should   not   be   made   in   such   situation.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.1662 OF 2013.
Arun Ambadasji Chawade, 

  
­VERSUS­
1 The   Chief   General   Manager, 
     Bharat   Sanchar   Nigam   Ltd., 
       
           CORAM: SMT.VASANTI  A. NAIK AND 


                                          A.S. CHANDURKAR, JJ.
          DATED:   14TH OCTOBER, 2013.
Citation;2013 (6) MH L J 533

Rule.  Rule  made  returnable  forthwith  and  heard 
finally with the consent of the parties.
The challenge in the present writ petition is to the 
communication   dated   8­1­2013   issued   by   the   respondent 
No.4 thereby directing the petitioner to deposit an over paid 
amount of salary to the tune of Rs.1,49,504/­.
2.
3.
The petitioner was appointed as Phone Mechanic 
with   the   respondent   No.1.   On   attaining   the   age   of 
superannuation, the petitioner retired from service on 

2009.  On 8­1­2013, the aforesaid communication came to be 
issued to the petitioner calling upon him to deposit an over 
paid salary of Rs.1,49,504/­.  The same has, therefore, given 
rise to the present writ petition.
4.
Shri Kidilay, the learned Counsel appearing for the 
petitioner   has   firstly   submitted   that   the   aforesaid 

communication was issued to the petitioner without issuing 
any show cause notice.  It is further submitted that there are 
no reasons mentioned in the aforesaid communication as to 
why the petitioner is being directed to deposit the overpaid 
salary.  It is then submitted that as the petitioner had retired 
from service on reaching the age of superannuation on 31­3­
2009,   it   was   not   permissible   in   law   to   seek   recovery   of 
aforesaid amount after the petitioner's retirement.   Learned 
Counsel   for  the   petitioner  has  in   this   regard  place  reliance 
upon the judgment of the Hon'ble Supreme Court in the case 
of Syed Abdul Qadir & others Vs. State of Bihar, 2009 AIR  
SCW 1891, especially, para 28 thereof.
5.
Shri R. G. Agrawal, the learned Counsel appearing 

for the respondent Nos.1 to 4 has supported the impugned 
communication.   It   is   submitted   that   as   the   aforesaid 
communication   relates   to   the   service   benefits   of   the 
petitioner,   the   remedy   before   the   Central   Administrative 
Tribunal could be invoked in case the petitioner is aggrieved 
by   the   said   communication.   It   is   further   submitted   that 
excess payment was disbursed to the petitioner on account of 

the wrong pay fixation and hence, the petitioner was liable to 
refund   the   same   to   the   department.     In   support   of   the 
aforesaid submission, the learned Counsel has relied upon the 
decision of the Hon'ble Supreme Court in the case of  Chandi 
Prasad Uniyal and Ors. Vs State of Uttarkhand and Ors,  
AIR   2012   Supreme   Court   2951.   The   learned   Counsel, 
therefore, seeks dismissal of the writ petition.
6.
Having   heard   the   respective   Counsel,   it   is   clear 
that certain facts are not in dispute. The overpayment is on 
account of wrong pay fixation by the respondents and not  on 
account of any misrepresentation or fraud by the petitioner. 
Similarly, the petitioner has retired from service on 31­3­2009 
and the recovery is sought to be made after almost four years.
                                        
The Hon'ble Supreme Court in case of Syed Abdul 
7.
Qadir (supra) has observed that where the excess payment is 
made   to   an   employee   not   on   account   of   any 
misrepresentation or fraud on his part, and that the employee 
was not aware that the amount paid to him was in excess to 
his entitlement, then in such cases, the recovery should not be 

made.  It has been further observed that if the employee has 
either retired or is on the verge of retirement, such recovery 
should   not   be   made   in   such   situation.     This   judgment   has 
been   rendered   by   three   learned   Judges   of   the   Hon'ble 
Supreme Court.
8.
In   so   far   as   the   judgment   relied   upon   by   the 
learned  Counsel   for   the   respondents   in   the   case   of  Chandi  
Prasad (Supra) is concerned, it has been observed in para 14 
therein after referring to the judgment in  Syed Abdul Qadir's 
case that the facts of said case wherein the beneficiaries had 
retired or were on the verge of retirement had weighed by the 
Court.   In the case of  Chandi  Prasad, the employee was in 

service and the excess payment was directed to be recovered 
from the employee's salary in 12 equal instalments. In fact, in 
para   17   of   the   aforesaid   judgment,   it   has   been   held   that 
except   few   instances   as   referred   to   in  Syed   Abdul   Quadir's 
case, the excess payment can be recovered if it has been made 
on account of wrong or irregular pay fixation. It is, however, 
clear that the facts of the present case are similar to the facts 

that were considered by the Hon'ble Apex Court in case of 
Syed   Abdul   Quadir  namely   that   the   present   petitioner   had 
retired in the year 2009 and the wrong overpayment was not 
on account of any misrepresentation or fraud, on the part of 
the petitioner.
9.
In so far as the submission made on behalf of the 
respondents pertaining to availability of alternate remedy is 
concerned, considering the facts of the present case wherein 
the  petitioner has already retired in  the  year  2009 and his 
case stands covered by the law laid down by the Hon'ble Apex 
Court in the case of Syed Abdul Qadir (supra), relegating the 
petitioner to avail the alternate remedy would not be in the 
interest of justice.   The basic facts not being in dispute, we 

feel that this is a fit case for exercising the writ jurisdiction. 
for in the present writ petition.
10.
We find that the petitioner is entitled for the reliefs as prayed 
In view of this, as the impugned communication 
seeks   to   recover   the   overpayment   of   salary   made   to   the 
petitioner four years after his retirement and when it is not 

alleged   that   the   said   overpayment   was   on   account   of 
misrepresentation or fraud on the part of the petitioner, the 
same   will   be   required   to   be   quashed.     Accordingly,   the 
impugned communication dated 8­1­2013 is quashed. Rule is 
made absolute in the aforesaid terms. No order as to costs.