JUDGMENT
Garg, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 3.8,2002 against the respondents with the prayer that by an appropriate writ, order or direction, the order Annex. 8 dated 19.12.2001 passed by the respondent No. 4 Joint Director, Pension and Welfare Department, Ajmer by which a recovery of Rs. 1,30,869/- was made from the Gratuity Payment Order of the petitioner, be quashed and set aside.
2. The case of the petitioner as put forward by him in this writ petition is as follows:-
The petitioner was appointed in the respondent Department as Surveyor on 16.2.1970 and after completion of two years service, he was declared as Semi Permanent on the post of Surveyor w.e.f. 16.2.1972 vide order Annex. 1 dated 17.1.1973 issued by the respondent Department and thereafter he became permanent w.e.f. 16.2.1980.
According to the petitioner, his pay scale was revised and he was fixed in the pay scale of Rs. 470-10-490-20-830 vide order Annex. 2 dated 25.1.1980 issued by the respondent No. 2 Superintending Engineer, Irrigation Circle, Bhilwara and since then pay scales of the petitioner were revised according to rules from time to time.
The further case of the petitioner is that after rendering more than 30 years of service, he sought voluntary retirement through application dated 2.12.2000 and that application was allowed by the respondent No. 2 through order Annex. 3 dated 13.12.200 and in that order Annex. 3, it was mentioned that no departmental enquiry was pending against the petitioner and it was also mentioned that no government dues were pending in account of the petitioner.
The further case of the petitioner is that subsequent to the above order Annex. 3 dated 13.12.2000, the petitioner was retired on 1.3.2001 vide order Annex. 4 dated 1.3.2001 issued by the respondent No. 3 Assistant Engineer, Irrigation Sub Division Jahajpur, Bhilwara.
The further case of the petitioner is that after his retirement, he completed all formalities pertaining to pension, but he was not given pension and thus, he gave a legal notice to the respondents on 11.9.2001, a copy of which is marked as Annex. 5. A reply to that legal notice Annex. 5 was given by the respondents through Annex. 6 dated 6.10.2001.
Feeling aggrieved by the action of the respondents, the petitioner preferred a writ petition before this Court being S.B. Civil Writ Petition No. 4463/2001 and when that writ petition was pending, the respondents released the pension of the petitioner on 19.12.2001, but after making a huge recovery of Rs. 1,30,869/- through Gratuity Pension Order Annex. 8 dated 19.12.2001 and that recovery made through Annex. 8 has been challenged by the petitioner in this writ petition.
Thereafter, the petitioner served another legal notice Annex. 9 on the respondents and a reply to that legal notice Annex. 9 was given by the respondents through Annex. 10 dated 30.1.2002 and it was explained by them that the petitioner was wrongly given pay scale of Rs. 470-830 vide order dated 25.1.1980 and the difference of that amount was found to be Rs. 1,30,869/- and, therefore, that amount was to be recovered from the petitioner and for that, no notice was required to be given to the petitioner. Hence, this writ petition with the prayer as stated above.
The main case of the petitioner is that by withholding due pension of the petitioner, the respondents have committed illegality as there was no fault on the part of the petitioner and thus, the action of the respondents is violative of Articles Hand 16 of the Constitution of India. Apart from this, no notice or opportunity of hearing was given to the petitioner before ordering recovery of the above amount from the gratuity of the petitioner.
A reply to the writ petition was filed by the respondents and their case is that since payment was wrongly made to the petitioner, therefore, it was rightly recovered from the petitioner through GPO of the petitioner Annex. 8 dated 19.12.2001. Hence, the writ petition filed by the petitioner be dismissed.
3. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record.
4. There is no dispute on the point that the petitioner had now retired from service with effect from 1.3.2001.
5. There is also no dispute on the point that whatever benefit or pay scale was given to the petitioner, that was given by the respondents and if any mistake was committed, it was committed by the respondents and not by the petitioner.
6. There is also no dispute on the point that the mistake was detected by the respondents after 20 years and till then the petitioner had already retired from service and, therefore, when the case of pension was to be finalised, then the mistake was detected by the respondents.
7. There is also no dispute on the point that through GPO Annex. 8 of the petitioner, recovery of Rs. 1,30,869/- was made and before ordering recovery, no notice or opportunity of hearing was given to the petitioner and there is also no dispute on the point that the said amount had already been recovered by the respondents from the pension of the petitioner.
8. Now, the question that arises for consideration is whether in the above facts and circumstances, the excess amount paid to the petitioner by giving him benefit or pay scale wrongly by the respondents without any fault on the part of the petitioner can be permitted to be recovered from him and if recovered, whether the petitioner is entitled to get it back or not, especially when he had retired from service w.e.f. 1.3.2001.
9. In Shyam Babu Verma and Ors. v. Union of India and Ors. (1), the Hon’ble Supreme Court has held that since the petitioners received the higher scale due to no fault of theirs, it shall only be just and proper not to recover any excess amount already paid to them.
10. In Bhagwan Shukla v. Union of India and Ors. (2), the Hon’ble Supreme Court observed that if basic pay of any employee is reduced with retrospective effect and employee was not granted opportunity to show cause, in such circumstances, there would be flagrant violation of the principles of natural justice and order of reducing pay was set aside.
11. In Ramesh Kumar Sharma v. State of Raj. and Ors. (3), this Court observed that it is well settled law that no order effecting the civil right of a person can be passed without giving an opportunity to the official. The principles of natural justice are the cardinal principles which are to be complied with by the State Authorities even to modify an order howsoever erroneous or illegal that order might be, if that order had bestowed any benefit on the official.
12. In Sahib Ram v. State of Haryana and Ors. (4), the Hon’ble Supreme Court restrained the recovery of the payment already made to the appellant, as it was 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.
13. In Nand Lal and Ors, v. Raj. State Electy. Board and Ors. (5), this Court relying on the aforesaid judgments of the Hon’ble Supreme Court has held that if a higher pay scale has erroneously been given to an employee long back and he had received it out of no fault on his part, it shall not be just and proper to recover the excess amount already paid to him.
14. In another decision in Shravan v. State of Raj. and Ors. (6), where the petitioner was retired from service and his pension was also fixed and later on the Department felt that by mistake he was wrongly paid more amount by way of pension and the Department passed order for recovery of excess payment from the gratuity of the petitioner without giving an opportunity of hearing and in such circumstances, this Court set aside the order of recovery holding that such recovery order could have not been passed without extending opportunity of hearing.
15. In the latest decision of the Hon’ble Supreme Court in Lakshmi Narayan Mukhopadhyay v. Union of India and Ors. (7), the amount ordered to be recovered from gratuity was not allowed to be recovered on the ground that no opportunity of hearing was given to the employee.
16. Thus, from the rulings of the Hon’ble Supreme Court as well as this Court just quoted above, it is clear that in case the Court finds that any benefit was received by a person without there being any fault on his part in receiving such benefit, it would be just and proper to allow him to retain such benefit.
17. Apart from this, a Division Bench of this Court in Smt. Pushp Lata Thada v. State and Ors. (8), has further observed that in case any recovery had already been made, the recovery amount shall be refunded to the person concerned.
18. In the present case, the benefit of pay scale was wrongly given to the
petitioner by the respondents and such benefit was received by the petitioner without
there being any fault on his part, but mistake was committed by the respondents and,
therefore, in such circumstances, it would be just and proper to allow the petitioner
to retain such benefit.
19, Apart from this, when the person to whom payment was wrongly made without there being any fault on his part and that person had retired, in such a case, after his retirement, to ask such person to pay amount already received, would necessarily cause a legal injury to him as in the meanwhile, he would have utilised that amount and therefore, from this point of view also, it can easily be said that a legal right has accrued in favour of the petitioner and under Article 226 of the Constitution of India, this Court has power to grant consequential relief such as not to recover the amount from the person to whom it was wrongly paid without there being any fault on his part.
20. However, since the amount in question had already been recovered from the petitioner, therefore, In view of the law laid down by the Division Bench of this Court in the case of Smt. Pushp Lata Thada (supra), the respondents are bound to repay that amount to the petitioner.
21. For the reasons stated above, this writ petition deserves to be allowed and the impugned Gratuity Payment Order dated 19.12.2001 (Annex. 8) to the extent of ordering recovery of Rs. 1,30,869/- from the petitioner is liable to be quashed and set aside.
Accordingly, this writ petition filed by the petitioner is allowed and ‘ the impugned Gratuity Payment Order dated 19.12.2001 (Annex. 8) passed by the respondent No. 4 Joint Director, Pension and Welfare Department, Ajmer to the extent of ordering recovery of Rs. 1,30,869/-from the petitioner is quashed and set aside and the respondents are directed to re-pay the said amount to the petitioner within a period of three months from today.
No order as to costs.