Criminal Judgement

We have heard learned counsel for the parties and perused the record. Learned counsel for the petitioner could not show that in law he was rightly paid by the respondents and he was entitled for payment of salary in the manner it was fixed w.e.f. 1.7.1986. However, the salary and other benefits paid to the petitioner after fixation w.e.f. 1.7.1986 is not on account of any fraud or misrepresentation on the part of the petitioner. If there is any error or mistake committed by the respondents, they may rectify the same but cannot recover the alleged excess amount already paid to the petitioner since the same has already been consumed in catering to the need of himself and his family members. The mistake, if any, was committed by respondents on their own and in these circumstances after such a long time and that too after his retirement no recovery of the amount already paid, can be made, though the rectification in respect to fixation can always be done.

It has further been contended that in any case, no order adverse to the interest of the petitioner could be passed without affording any opportunity and thereof, the impugned order is in utter violation of principles of natural justice. In our view, once learned counsel for the petitioner could not show that the salary and other benefits which were paid to him could be sustained having sanction of law under any Rules or Regulations applicable to the petitioner, in the circumstances, it cannot be said that salary and other benefits paid to the petitioner were being paid rightly and the same could not have been corrected/rectified by the respondents by passing an appropriate order. If there is any error or mistake committed by the respondents in fixation of pay or payment of salary to its employees such mistake can always be rectified and principle of estoppel or waiver etc. shall not apply in such cases. Similarly in such a case, even the principle of natural justice shall not be attracted where the facts and legal position is not disputed, the action or order of the authority cannot be said to be illegal for mere non-compliance of principles of natural justice. But where simultaneously it is found that an employee has been given certain monetary benefits or salary by the employer on its own or by its own mistake and for which, the employee is not responsible or has not played any fraud or misrepresentation, the amount paid in excess on account of such lapse or mistake of employer should not be recovered from the employee, particularly after a long time. It is worthy to notice that relief, i.e., restraining recovery of excess amount is granted by Courts not because of any right in the employee but in equity, in exercise of judicial discretion, to relieve the employee from the hardship that he would suffer if recovery is implemented.