# Brijesh Chandra and Ors v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1358
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-25
- **Case number:** Civil Misc. Writ Petition No.27960 of 2010
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijesh-chandra-and-ors-v-state-of-u-p-and-ors-42703
- **Pages:** 10

## Headnote

Constitution of India, Art.-226-Recovery of
excess
amount-incentive
allowance-G.O.
dated 28.11.2007 provides 25% of basic pay
with maximum financial limit of Rs. 2500,
2000 and 1000 to S.P. , S.I., Constable and
Head Constables-working in intelligence
department-admittedly
before
passing
impugned order no opportunity of hearing
given-nor petitioner are guilty of fraud or
misrepresentation or instrumental in getting
excess-amount-held-can not be recoveredrecovery quashed with direction to pass
order considering their status of promotional
3 All] Brijesh Chandra and Ors. Vs. State of U.P. and Ors.
1359
pay etc-after giving opportunity of hearingsubject to working in intelligence or during
existence of G.O. dated 28.11.2007.

Held: Para-36
In the result, the writ petition is allowed. The
impugned recovery is hereby quashed. It is
made clear that so long as the G.O. dated
28.11.2007,
prescribing
"Incentive
Allowance" to police officers of subordinate
ranks working in Intelligence is not modified,
recalled or revoked, or the petitioners are
not transferred from Intelligence to other
wing, they shall be entitled for the benefit
under aforesaid G.O. It is also provided that
if the aforesaid benefit is withdrawn or
modified, the subsequent entitlement of
petitioners shall be governed accordingly.

## Text

1358 INDIAN LAW REPORTS ALLAHABAD SERIES
the nearest police station must, as part of
their duty to investigate a crime, find out the
contents of the statement recorded by the
Magistrate/ Doctor and if the victim becomes
unable to give further statement or dies then
such statement should be the basis for
drawing FIR without any undue delay.

5. In our considered view it is
imperative that in all the serious cases where
the victim is injured and his / her statement
has been recorded by a Magistrate / Doctor
then such statement or further statement of
that injured should be recorded as FIR
without any delay, in any case within 24
hours of recording of the statement. This
alone shall ensure that undue delay is not
causing in investigation and shall also
subserve the interest of justice.

6. It is not necessary to reiterate the
contents of earlier orders passed on 10th
May, 2013 and 7.8.2013. Those orders
shall be treated as part of this order.

7. This writ petition (PIL) is disposed
of with the direction to all concerned to
follow the DGP Circular dated 22.05.2013
which contains valuable directions to ensure
that investigation is carried out properly by
recording the statement of Doctor and
Magistrate who are present at the time of
recording of the statement of the victim. The
concerned officials shall also follow the
directions of this Court given above and in
compliance of this direction the Director
General of Police, U.P. shall issue a circular
in addition to the earlier circular forthwith
and in any case within a week. The officials
of the nearest police station shall not cause
any delay in lodging of the FIR and on that
basis they shall inform the police officials of
the concerned police station where the crime
took place, after recording the FIR in the
manner indicated above within 24 hours time
limit. The FIR may be sent thereafter to the
police station having jurisdiction of the
crime. The circular of the Director General of
Police
must
contain
stipulation
of
disciplinary action. Further if such directions
are violated by any particular delinquent
police official then such an action will
amount to contempt of this Court.

8. Writ Petition is disposed of
accordingly.

9. Let a copy of this order be furnished
to the learned Government Advocate for
communication and compliance to all
concerned.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.27960 of 2010

Brijesh Chandra and Ors. ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Vijay Gautam

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Recovery of
excess
amount-incentive
allowance-G.O.
dated 28.11.2007 provides 25% of basic pay
with maximum financial limit of Rs. 2500,
2000 and 1000 to S.P. , S.I., Constable and
Head Constables-working in intelligence
department-admittedly
before
passing
impugned order no opportunity of hearing
given-nor petitioner are guilty of fraud or
misrepresentation or instrumental in getting
excess-amount-held-can not be recoveredrecovery quashed with direction to pass
order considering their status of promotional
3 All] Brijesh Chandra and Ors. Vs. State of U.P. and Ors.
1359
pay etc-after giving opportunity of hearingsubject to working in intelligence or during
existence of G.O. dated 28.11.2007.

Held: Para-36
In the result, the writ petition is allowed. The
impugned recovery is hereby quashed. It is
made clear that so long as the G.O. dated
28.11.2007,
prescribing
"Incentive
Allowance" to police officers of subordinate
ranks working in Intelligence is not modified,
recalled or revoked, or the petitioners are
not transferred from Intelligence to other
wing, they shall be entitled for the benefit
under aforesaid G.O. It is also provided that
if the aforesaid benefit is withdrawn or
modified, the subsequent entitlement of
petitioners shall be governed accordingly.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Since pleadings are complete, as
requested by learned counsel for the
parties, I proceed to hear and decide this
matter finally at this stage under the Rules
of this Court.

2. Heard Sri Vijay Gautam, learned
counsel for the petitioners and learned
Standing Counsel for the respondents.

3. The petitioners are enrolled in Police
Force of State of Uttar Pradesh having been
recruited as Constable in Civil Police and then
have been posted in the Local Intelligence
Unit of Civil Police. They are the police
officers of subordinate rank and governed by
various provisions of Police Act, 1861
(hereinafter referred to as the "Act, 1861")
read with statutory orders issued under
Section 2 thereof and Rules framed under
Section 2, read with Section 46 of Act, 1861.

4. The State Government issued a
Government Order (hereinafter referred to
as the "G.O.") dated 28.11.2007 providing
that
police
officers
working
in
Intelligence Department, up to the pay
scale
at
the
level
of
Deputy
Superintendent
of
Police
shall
be
provided
incentive
allowance.
This
incentive allowance is at the rate of 25%
of basic pay and dearness allowance,
subject to maximum of Rs. 2500/- to
those working in the pay scale at the level
of Deputy Superintendent of Police; Rs.
2000/- working in pay scale at the level of
Inspector and Sub-Inspector; and, Rs.
1000/- to those working in pay scale at the
level of Head Constable, Constable and
Constable Driver. It is further said that
incentive allowance shall be payable only
for the period the concerned official
remain posted in Intelligence Wing. On
his transfer to any other branch the
incentive allowance shall stand ceased.
Further, if a police official remain posted
in Intelligence Department for a period of
10 days or less in a month, he shall be
paid incentive allowance proportionately.

5. It is said that the aforesaid G.O.
has not been revoked, cancelled or
modified till date so as to disallow
payment
of
incentive
allowance
(Protsahan Bhatta) as per aforesaid G.O.
dated 28.11.2007.

6. The petitioners have further said
that at the time of issuance of aforesaid
G.O., they having already been given
benefit of time bound promotional scale,
receiving basic pay equivalent to pay
scale of Sub-Inspector, i.e., Rs. 55009000/- and, therefore, were paid incentive
allowance at the rate of Rs. 2000/- per
month in terms of the aforesaid G.O.

7. Subsequently, it appears that, an
audit objection was raised that incentive
allowance
admissible
to
petitioners
working as Constable was minimum to
Rs. 1000/- per month and they were
1360 INDIAN LAW REPORTS ALLAHABAD SERIES
wrongly paid incentive allowance at the
rate of Rs. 2000/- per month, hence
excess amount of Rs. 1000/- per month
should be recovered from them. It is
pursuant thereto, the impugned order has
been passed which is in respect of
petitioners and similarly placed other
officials
who
are/were
working
in
Intelligence
Wing/Branch
and
paid
incentive allowance at the rate of Rs.
2000/- per month based on the level of
pay scale in which they are/were working.

8. It is contended that aforesaid
recovery is totally illegal and erroneous.
In the alternative, it is said that amount of
incentive allowance paid in excess to
petitioners is not on account of any fraud
or
misrepresentation
on
their
part,
therefore, ought not to have been
recovered and to fortify this submission
reliance is placed on Syed Abdul Qadir
and others vs. State of Bihar and
others, 2009(3) SCC 475 and a Division
Bench decision of this Court in Ram
Murti Singh Vs. State of U.P. and
others, 2006(3) UPLBEC 2415. Lastly, it
is contended that in any case the
impugned order of recovery having been
issued without affording any opportunity
to petitioners, therefore, it is in violation
of principle of natural justice and liable to
be set aside for aforesaid reason.

9. The respondents have contested
this matter by filing a counter affidavit
and the central theme of defence therein is
that petitioners are all "Constables" in
Intelligence Branch, therefore, entitled for
incentive allowance at the maximum of
Rs. 1000/- per month but the have been
paid the same at the rate of Rs. 2000/- per
month, hence excess amount of Rs. 1000/-
per month has been paid to them, which is
liable to be recovered.

10. The defence shows that the
respondents have read the G.O. dated
28.11.2007 as if it provides incentive
allowance at the rate of 25% of basic pay
and dearness allowance with reference to
rank/position, i.e., subject to maximum of
Rs. 2500/- to Deputy Superintendent of
Police; Rs. 2000/- to Inspector and SubInspector; and, Rs. 1000/- to Head
Constable,
Constable
and
Constable
Driver.

11. Learned Standing Counsel
contended that on account of specialized
kind of duties exercised by police officers
posted
in
Intelligence
Branch,
the
Government decided to provide a special
allowance,
called
as
"Incentive
Allowance", so that more efficient and
competent officials from Civil Police be
attracted to have their posting in the
Intelligence. The amount of "Incentive
Allowance" having been determined by
G.O. Dated 28.11.2007, anything beyond
that was wholly unauthorised and illegal
and, therefore, the same is liable to be
recovered. He submitted that if an amount
has wrongly been paid in excess to an
employee, it is liable to be recovered and
in this regard he placed reliance on a
decision of this Court in Writ Petition
No. 38790 of 2013, Ram Nakshtra
Sharma Vs. State of U.P. and others,
decided on 19.07.2013.

12. I have learned counsel for the
parties and perused the record.

13. The rival submissions, giving
rise, in my view, to the following
questions:

(i) Whether the amount of incentive
allowance is payable with reference to the
post/position/rank held by a police officer
3 All] Brijesh Chandra and Ors. Vs. State of U.P. and Ors.
1361
in Intelligence or with reference to the
pay
scale
applicable
to
the
rank/status/position;

(ii) Whether the recovery in question
is bad on account of violation of principle
of natural justice; and,

(iii) Whether an amount paid in
excess to an employee cannot be
recovered if there is no element of fraud
of misrepresentation on his part.

14. I proceed to consider the
aforesaid issues by discussing in the
manner the same have been framed,
above.

15. The question No. 1 involves
interpretation of G.O. dated 28.11.2007.
The phrase which is relevant to determine
maximum
amount
of
"Incentive
Allowance", reads as under:

^^vfHklwpuk foHkkx esa dk;Zjr mik/kh{kd Lrj
rd ds osrueku esa dk;Zjr vf/kdkfj;ksa o deZpkfj;ksa
dks muds ewy osru o eagxkbZ osru dh 25 izfr'kr
/kujkf'k 1⁄4vf/kdre /kujkf'k dh nj iqfyl mik/kh{kd
ds osrueku rd :i;k 2]500@&] fujh{kd @
mifujh0 ds osrueku rd :i;k 2]000@& rFkk
eq[; vkj{kh @ vkj{kh @ vkj{kh M~kbZoj ds
osrueku rd :i;k 1]000@&1⁄2 izksRlkgu HkRrk ds
:i esa izfrekg fuEufyf[kr 'krksZa ds v/khu vuqeU;
fd;s tkus dh Jh jkT;iky lg"kZ Lohd`r iznku djrs
gSaA**

"His excellency the Governor is
pleased to give assent to the sanction of
incentive @ 25% of the basic pay and
dearness allowance (subject to maximum
of Rs. 2500/- upto the pay scale of Deputy
Superintendent of Police, Rs. 2000/- upto
the pay scale of Inspector/Sub-Inspector
and Rs. 1000/- upto the pay scale of
Head-Constable/Constable/
Constable
Driver) to officers and officials working
in
the
pay
scale
upto
Deputy
Superintendent
of
Police
in
the
Intelligence Department, however, subject
to
following
condition."
(English
translation by the Court) (emphasis
added)

16. A bare reading of aforesaid makes
it very clear that it is with reference to pay
scale applicable to an officer at a particular
level. The very initial clause which provides
the rate of incentive allowance says that the
officers
and
employees
working
in
Intelligence in the pay scale up to the level of
Deputy Superintendent of Police shall be
paid 25% of their basic pay and dearness
allowance as incentive allowance. The next
clause restrict the maximum amount payable
and says that aforesaid amount shall be
subject to the maximum of Rs. 2500/- to
those who are in the pay scale of Deputy
Superintendent of Police; Rs. 2000/- to
whose who are in the pay scale of Inspector/
Sub-Inspector; and, Rs. 1000/- to those who
are in the pay scale of Head Constable,
Constable and Constable Driver. Had the
intention of Government been to provide
"Incentive Allowance" to the officers of a
particular rank, there was no occasion to
mention that those who are working in the
scale of particular rank shall be paid such
allowance. The reason behind is self
explanatory. Judicial notice may be taken to
the
fact
that
Government
employees
including those of Police Department, have
been provided benefit of time bound higher
pay scale with reference to and in
promotional
scales,
called
as
First
Promotional Scale, Second Promotional
Scale and Third Promotional Scale, as the
case may be. Before introduction of Advance
Carrier Promotion Scheme (hereinafter
referred to as the "ACP Scheme") vide G.O.
dated 04.05.2010, the aforesaid promotional
scales were applicable and actually given to
eligible persons, as and when fell due, after
finding them suitable and entitled for the
1362 INDIAN LAW REPORTS ALLAHABAD SERIES
same. It is in this view of the matter, those
who were getting salary in promotional scale,
have been given higher maxima of
"Incentive Allowance" vide G.O. dated
28.11.2007. For example, if a Constable has
been given promotional pay scale, which is
equal to the pay scale prescribed for an
officer in the rank of sub-Inspector or
Inspector, he would be entitled for Incentive
Allowance at the rate of 25% of basic pay
and dearness allowance subject to maximum
of Rs. 2000/-. It is for this reason the
language of G.O. makes the admissibility
with reference to pay scale of a particular
level and not use level/rank/position. Here
reference to pay scale is not equivalent to the
status of officer concerned that he must be
working in that rank with all attending
position of status, rank etc.

17. The respondents, in my view, have
clearly misconstrued the aforesaid G.O. by
reading it as if the "Incentive Allowance" is
with reference to individual rank of an
officer. Reading in such a manner the
respondents have omitted the words, ^^Lrj rd
ds osrueku** and ^^osrueku** used at difference
places in the G.O. in question. The use of the
words "scale" and "level of scale" is to put
stress on the fact that what is relevant is the
level of pay scale in which the particular
incumbent is getting salary and not his actual
rank and status. Judicial cognizance can also
be taken of the fact that police officials of
lower cadre having been granted the benefit
of first, second and third promotional pay
scale are getting salary in pay scale
applicable to much higher rank of officials
but they continue to enjoy actual status of
their substantive post. Grant of promotional
pay scale does not result in upgrading of their
position, rank and status but only financial
benefits become available. In the present
case, unless the respondents find that the
petitioners were actually working in the pay
scale equivalent to the scale of Head
Constable and Constable and not that of
Inspector or Sub-inspector, they could not
have said that any excess/extra payment has
been made. It could not have been said that
they (petitioners) have been paid excess
amount of incentive allowance unless a
finding is recorded that they are not in the
pay scale equivalent to that of a SubInspector/Inspector. In other words without
deciding the question, whether petitioners
were getting salary in the pay scale
equivalent to that of Sub-Inspector or not, it
could not have been said that they were not
entitled for incentive allowance subject to
maximum of Rs. 2000/-. It appears that
respondents have proceeded in a mechanical
way to determine maximum amount of
"Incentive Allowance" with reference to the
rank and position, which is not the correct
approach on their part. The question No. 1,
therefore, is answered accordingly.

18. Now coming to the second
question, i.e., opportunity. A specific
averment has been made in para 26 of the
writ petition that no opportunity of
hearing was afforded to petitioners and no
show cause notice was issued, therefore,
the impugned recovery is in violation of
principle of natural justice.

19. The reply is contained in para 7
of the counter affidavit and there is not
even a whisper to suggest that any show
cause notice was issued to petitioners or
they were given any opportunity of
hearing before issuing direction for
recovery of alleged excess amount of
"Incentive Allowance".

20.

Regarding
application
of
principles of natural justice, it cannot be
doubted that whenever an employer takes
a view, or from the record, finds, that
3 All] Brijesh Chandra and Ors. Vs. State of U.P. and Ors.
1363
certain amount has been paid to an
employee, in excess to what he was
entitled, before issuing an order of
recovery of the same, he must have given
an opportunity to the employee concerned
to show cause, whether such amount
should/can be recovered from him or not.
If this opportunity is given to an
employee, he can always show that what
was paid to him, he was entitled therefor,
and, there is neither any excess payment,
nor any payment for which he was not
entitled. An order passed directly without
giving
any
show
cause
notice
or
opportunity to the employee, in my view,
would suffer the vice of non observance
of principles of natural justice. In a case
where there is a dispute as to whether the
employee has been paid an amount rightly
or not, before passing any order, having
civil consequences, the employer must
afford an opportunity to the employee,
else, such an order would be in violation
of principles of natural justice. The Apex
Court in Bhagwan Shukla Vs. Union of
India & others 1994 (6) SCC 154, is
similar circumstances, has held that an
order passed in violation of principles of
natural justice cannot be sustained. In
para 3 of the judgment, the Apex Court
observed as under:

"The appellant has obviously been
visited with civil consequences but he had
been granted no opportunity to show
cause ...Fair play in action warrants that
no such order which has the effect of an
employee suffering civil consequences
should be passed without putting the
concerned to notice and giving him
hearing in the matter."

21. The second question, as a
proposition of law, therefore, is answered
in favour of petitioners.

22. Then comes the third question,
i.e., whether an amount if admittedly paid
in excess, i.e., more than what the
incumbent is entitled, still it cannot be
recovered unless the employer finds a
case of fraud or misrepresentation on the
part of employee. On this aspect, I am
inclined to answer the question no. 3 in
favour of respondents and my reasons are
as under.

23. I propose to refer the decisions
of Apex Court which have taken a view
holding that an amount, if has been
wrongly paid to an employee and he is not
entitled for the same, recovery of such
amount cannot be said to be bad except of
certain very limited exceptions which
have also been described therein.

24. The first is State of Haryana
and others Vs. O.P. Shrama and others
AIR 1993 SC 1903. There an ad hoc
interim relief was granted in 1972 by the
Government on slab basis pending
fixation of additional dearness allowance.
No formula with reference to cost of
living was adopted while granting ad hoc
relief. When the formula for grant of
additional dearness allowance of the cycle
of increase by 8 points in the Consumer
Price Index was adopted by the State
Government, it realised that the ad-hoc
interim relief was in excess by Rs. 9.40 to
Rs. 45 per month depending on the payslab of a Government servant. It then
decided to adjust excess amount paid in
subsequent emoluments in instalments,
rather than lump sum recovery of entire
excess amount. Such order was passed in
March 1974. The Court did not find order
bad, illegal, arbitrary, unreasonable or
unfair. It held that the Government has
rightly chosen to recover excess amount
in a phased manner.
1364 INDIAN LAW REPORTS ALLAHABAD SERIES

25. In Union of India Vs. Smt.
Sujatha Vedachalam and another AIR
2000 SC 2709, an employee was working
as Senior Clerk (Accounts) in the pay
scale of Rs.1400-2600. On his personal
request, he was transferred from Nagpur
to Bangalore. One of the conditions of
transfer was that the employee shall
technically resign from the post held at
Nagpur and join as Direct Recruit on the
post of Clerk at Bangalore. At the time of
transfer, basic pay drawn by the employee
at Nagpur in the cadre of Senior
Accountant, was Rs. 1260/-. When the
employee joined on the lower post of
clerk, by mistake, her salary was fixed at
basic pay of Rs.1250/- per month instead
of Rs. 1070/-. On detection of mistake,
pay was refixed at the stage of Rs. 1070/-
by order dated 1.12.1995. The order(s) of
recovery and refixation were challenged
before Central Administrative Tribunal.
Employee's claim was allowed by the
Tribunal and Government's Writ Petition
was dismissed by High Court. The Apex
Court relying on its earlier decision in
Comptroller & Auditor General of
India Vs. Farid Sattar, AIR 2000 SC
1557, set aside both the judgments and
upheld G.O. of refixation and recovery,
with the only indulgence that excess pay
may be recovered in easy instalments.
The Court herein upheld recovery and
permitted instalments.

26. Next is Col. (Retd.) B.J.
Akkara Vs. Government of India
(2006) 11 SCC 709 wherein the law
relating to recovery of excess payment
from employees was considered. The
Court held that cases wherein excess
payment has not been allowed to be
recovered from employees' are not
founded because of any right in the
employees but in equity and in exercise of
judicial discretion to relieve employees
from the hardship that may be caused, if
recovery
is
implemented.
Such
a
discretion is exercised by the Court and
one of the reasons therefore, has been,
that the employee was receiving excess
payment for a long period and utilising
the same, genuinely believing that he is
entitled to it, but where the employee had
knowledge that the payment so received
was in excess of what was due and the
error was detected within a short period of
wrong payment, Court would not give
relief against such recovery. It is said that
these matters lie in the realm of judicial
discretion of the Court.

27.

Then
comes
Registrar
Cooperative Societies Vs. Israil Khan
and others 2010(1) SCC 440 wherein
recovery of excess amount paid to
employees of cooperative society was
challenged relying on Apex Court's
decision in Sahib Ram Vs. State of
Haryana 1995 Supp.(1) SCC 18 and
Shyam Babu Verma Vs. Union of India
(Supra). A two Judges Bench of Apex
Court, consisting of Hon'ble R.V.
Raveendran
and
Hon'ble
P.
Sathasivam said in para 6 of the
judgment that there is no principle that
any excess payment to an employee
should not be recovered back by the
employer. The Court observed that in
certain cases merely a judicial discretion
has been exercised by Apex Court to
refuse
recovery
of
excess
wrong
payments of emoluments/allowances from
employees on the ground of hardship
where the following conditions were
fulfilled:

(a) The excess payment was not
made on account of any misrepresentation
or fraud on the part of employee; and
3 All] Brijesh Chandra and Ors. Vs. State of U.P. and Ors.
1365

(b) 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.

28. Now very recently, the Apex
Court in Chandi Prasad Uniyal and
others vs. State of Uttarakhand and
others, 2012(3) UPLBEC 2057 has said
that there is no such principle of law that
wrong payment made to an employee can
be recovered only in those cases where he
is guilty of fraud and misrepresentation,
and not otherwise. The Court has
distinguished all its earlier decisions in
Shyam Babu Verma Vs. Union of India
(Supra), Sahib Ram v. State of
Haryana (Supra), State of Bihar v.
Pandey Jagdishwar Prasad [(2009) 2
SCC 117] and Yogeshwar Prasad and
Ors v. National Institute of Education
Planning and Administration and Ors.
[(2010) 14 SCC 323]. In paragraphs 9,
15, 16 and 18 of the judgment the Court
has said:

"9. We are of the considered view, after
going through various judgements cited at
the bar,hat this court has not laid down any
principle of law that only if there is
misrepresentation or fraud on the part of the
recipients of the money in getting the excess
pay, the amount paid due to irregular /wrong
fixation of pay be recovered."

"15. We are not convinced that this
Court in various judgments referred to
hereinbefore
has
laid
down
any
proposition of law that only if the State or
its officials establish that there was
misrepresentation or fraud on the part of
the recipients of the excess pay, then only
the amount paid could be recovered. On
the other hand, most of the cases referred
to hereinbefore turned on the peculiar
facts and circumstances of those cases
either because the recipients had retired or
on the verge of retirement or were
occupying
lower
posts
in
the
administrative hierarchy."

"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 situation. 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 of
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 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."

"18. Appellants in the appeal will not
fall in any of these exceptional categories,
over and above, there was a stipulation in the
fixation order that in the condition of
irregular/wrong pay fixation, the institution
in which the appellants were working would
be responsible for recovery of the amount
received in excess from the salary / pension.
In such circumstances, we find no reason to
1366 INDIAN LAW REPORTS ALLAHABAD SERIES
interfere with the judgment of the High
Court. However, we order the excess
payment made be recovered from the
appellant's salary in twelve equal monthly
instalments starting form October 2012. The
appeal stands dismissed with no order as to
costs. IA nos. 2 and 3 are disposed of."

29. The Apex Court further held that
decision in Shyam Babu Verma (Supra),
Sahib Ram (Supra), Yogeshwar Prasad
(Supra), etc. are all decided on their own facts
and do not lay down any principle of law,
restraining recovery of excess payment of
salary from the concerned employee. On the
contrary, in para 17 of the judgment the Court
said that except few instances pointed out in
Syed Abdul Qadir and others vs. State of
Bihar and others (2009) 3 SCC 475) and in
Col. B.J. Akkara (Supra), excess payment due
to wrong/irregular pay fixation can always be
recovered.

30. There is a Division Bench
judgement of this Court also in State of U.P.
& others Vs. Vindeshwari Prasad Singh
(Special Appeal No.503 of 2008), decided on
28th July, 2009. The Court formulated two
questions, as under:

"(i) Whether any financial benefit
given to an employee by mistake without
any misrepresentation or fraud on his part
can be recovered from him later on after
his superannuation from service?

(ii) Whether before directing for
recovery of the amount paid in excess, the
employee concerned is required to be
given notice and opportunity of hearing?"

31. Having said so, the Court said:

"Having given my most anxious
consideration, neither on first principle
nor precedent, I am prepared to accept the
broad submission that excess amount paid
to an employee by mistake cannot be
recovered after his superannuation only
on the ground that while obtaining
monetary benefit, it has not made false
representation or played fraud."

32. Further, the Court referred to
Section 72 of Indian Contract Act and
thereafter said:

"From a plain reading of the aforesaid
provision it is evident that a person to whom
money has been paid by mistake is obliged
to return the same. In my opinion an
employee not entitled to receive monetary
benefit gets it, it becomes a case of unjust
enrichment and restitution in case of unjust
enrichment is an accepted principle for
ensuring justice in appropriate cases. In my
opinion in a case of mistake clear, plain and
simple, excess amount paid to and employee
can be recovered after retirement despite the
fact
that
he
had
not
made
any
misrepresentation or played fraud. There is
no legal impediment in ordering for recovery
from a retired employee such monetary
benefits, which he had received on account
of mistake and not entitled to such benefits.
However, I would hasten to add that a
mistake, pure and simple though justifies
recovery of excess amount paid but in a case
in which two interpretations are possible and
one was consciously approved and benefit
given to an employee by the competent
authority but such decision in the ultimate
analysis and long process of reasoning, later
on is found incorrect, it may be possible to
correct the same at a latter stage but the
amount already paid in the light of the earlier
decision is not fit to be recovered. In other
wards, excess payment is made upon
reasonably possible view taken by competent
authority without fraud or misrepresentation,
3 All] Yogesh Kumar Gupta Vs. Bharat Heavy Electronicals Ltd. & Ors.
1367
the excess payment cannot be recovered.
Excess payment is possible to be made by
the order of the employer. It is also possible
by interim or final order of the Court, which
ultimately is found to be erroneous. In case
of former, a recovery is permissible under the
condition enumerated above. However, in
latter case, it depends upon the facts and
circumstances of each case and it is primarily
within the discretion of the Court." (emphasis
added)

33. The Court also relied upon an
earlier Division Bench Judgement in Union
of India Vs. Rakesh Chandra Sharma and
others 2004 (1) ESC (Allahabad) 455,
observing that there is no law of universal
application, restraining the employer from
recovering the extra amount paid to an
employee beyond entitlement. The Court
also observed that rectification of mistake is
not only permissible but desirable otherwise
system/ requirement of auditing of accounts
would be rendered nugatory.

34. These authorities clearly show
that there is no right of petitioners in law
or
otherwise
that
admitted
excess
payment
wrongly
made
cannot
be
recovered. As a matter of right, petitioners
cannot contend that though they had been
paid certain amount wrongly in excess to
what was due to them, yet it cannot be
recovered by the administration.

35. In view of above and looking to
the findings in respect to questions no. 1
and 2, this Court has no doubt that this
writ petition deserved to be allowed.

36. In the result, the writ petition is
allowed. The impugned recovery is hereby
quashed. It is made clear that so long as the
G.O. dated 28.11.2007, prescribing "Incentive
Allowance" to police officers of subordinate
ranks working in Intelligence is not modified,
recalled or revoked, or the petitioners are not
transferred from Intelligence to other wing,
they shall be entitled for the benefit under
aforesaid G.O. It is also provided that if the
aforesaid benefit is withdrawn or modified,
the subsequent entitlement of petitioners shall
be governed accordingly.

37. It is, however, made clear that
looking to the findings recorded by this
Court with respect to question no. 1, it shall
be open to respondent-competent authority to
examine every individual case in the light of
the discussion made above, and if it is found
that any person has been paid "Incentive
Allowance", over and above what was
prescribed in aforesaid G.O., it shall be open
to
respondents
to
initiate
appropriate
proceedings for recovery of that much
amount but after giving due opportunity of
hearing to concerned persons.

38. No costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 40868 of 1996

Yogesh Kumar Gupta

 ...Petitioner
Versus
Bharat Heavy Electronics Ltd. & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri K.M. Asthana, Sri Indra Mani Tripathi

Counsel for the Respondents:
S.C., Sri K.N. Mishra, Sri Sandeep Saxena

Constitution of India, Art. 226-Right to
appointment-petitioner
completing