Judgment:
Ajay Tewari, J.
1. The petitioner has challenged the orders Annexure P-3, P-4 and P-8 by which it has been directed that a recovery of Rs. 56,621/- be made from his retirement benefits. The second prayer is that restoration of the pay scale which has been withdrawn.
2. As regards the first point there is no averment in the written statement that extra payment was made to the petitioner on account of any act of omission or commission on his part.
3. In Syed Abdul Qadir and Ors. v. State of Bihar and Ors. 2009(1) S.C.T. 611, Hon'ble the Supreme Court after reviewing the entire law on the subject held as follows:
This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if 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. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter, being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. Undoubtedly, the excess amount that has been paid to the appellants-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 appellants-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 appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.
4. In this view of the matter the recovery which is sought to be made after 11 years cannot be sustained. The same is set aside. With regard to the claim of the petitioner for refixation of pay in the original scale the plea taken is that it was incumbent upon employees to exercise option within a period of six months. Since this option was not exercised by the petitioner thus his pay had to be refixed in the lower scale . It may be noticed that there is a clear averment in the writ petition that the notification of 23.8.1990 or the requirement regarding exercise of option was never got noted from the petitioner and, as seen above the higher pay scale was granted to the petitioner. It was only when the pay was refixed that the petitioner came to know about this requirement. In fact by letter Annexure P-6 the Superintending Engineer recommended that the petitioner was allowed to exercise his option since the notification was never got noted from him. In the written statement there is no rebuttal to this averment. Consequently it has to be held that the petitioner was not allowed the opportunity to exercise his option.
5. A similar matter came up before a Division Bench of this Court in Ram Dia and Ors. v. Uttar Haryana Bijli Vitran Nigam Ltd. and Anr. 2005(4) S.C.T. 387. In that case also the petitioners were not given any intimation or notice to give their option for pension from Employees Provident Fund. There was no material on the file to show that the circular for option was got noted in writing from the petitioners. The Bench inferred that the petitioners had no knowledge of the circular and the authorities were directed to take options and grant pension as per the rules. The relevant extract of the said judgment is reproduced herein below:
Learned Counsel for the petitioners vehemently argued that the petitioners are illiterate and no such circular as pointed out by the respondents, was got noted from them. The petitioners were always desirous and willing to opt for the pension scheme by counting the work charge/daily-wage service. In support of his arguments, the learned Counsel relied on a judgment of this Court in the case of Lilu Ram v. State of Haryana and Ors. C.W.P. No. 2476 of 1997, decided on 9.10.1997. The learned Counsel for the respondents failed to show any material that the circular dated 6.8.1993 was actually got noted in writing from the petitioners. In the absence of any such material, it can well be inferred that the petitioner had no knowledge about the options called by the respondents vide the aforesaid circular. Therefore, it is unreasonable to deny the pensionary benefits to the petitioners. Accordingly the writ petition is allowed. The orders Annexures P-4, P-5 and P-8 are quashed. The respondents are directed to allow the petitioner to exercise his option in accordance with their notification dated 23.8.1990 within a period of one month from the date of receipt of a certified copy of this order and give him the consequential benefits within a further period of two months thereafter.