# Shiv Swaroop Trivedi S/O Late Deen Dayal Trivedi v. State of U.P.& Ors

- **Citation:** (2013) 1 ILRA 153
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-20
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-swaroop-trivedi-s-o-late-deen-dayal-trivedi-v-state-of-u-p-ors-42476
- **Pages:** 11

## Headnote

Constitution
of
India,
Article
226recovery of excess amount -paid in
particular pay scale after completing 40
years of service-after retirement-it was
noticed that petitioner can not be given
the salary in that pay scale-no allegation
of fraud or misrepresentation-or being
instrumental in getting that pay scaleheld-can
not
be
recovered
without
affording opportunity of hearing.

Held: Para-38

 In the present case, promotional scale
has been given to the petitioner in
pursuance to the Government Order
dated
11.8.1983
by
his
employer
voluntary in bona fide manner without
there being any element of fraud on his
part subsequently cannot be recovered
from him when he is retired from service
after
attaining
the
age
of
superannuation on the ground that same
has wrongly been given to him by the
employer because his case comes within
the ambit and scope of the category of
those employee from whom if the excess
amount paid cannot be recovered as
mentioned in the case of Chandi Prasad
Uniyal (supra).
Case Law discussed:
2012 (3) LBESR 692 (SC); (1994) 2 SCC 521;
1995 (1) LBESR 206 (SC) ; (2006) 11 SCC
154 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
709; (2009) 3 SCC 475; AIR 1974 SC 602; AIR
1990 SC 313; (1976) 1 WLR 1255; (1970) 2
QB 417; (1971) 2 QB 175; (1969) 2 SCC 262;
(1978) 1 SCC 148; (1987) 4 SCC 431; AIR
1978 SC 851; (1970) 1 SCC 121; (2008) 3
UPLBEC 2517; (1996) 3 UPLBEC 1340; 2005
(23) LCD 177; (2002) 10 SCC 99; 1979 ALJ
184; AIR 1994 Supreme Court 2480

## Text

1 All] Shiv Swaroop Trivedi S/O Late Deen Dayal Trivedi Vs. State of U.P.& Ors.
153

12. So far as conviction of Irfan is
concerned the Appellate Court was ample
power to set aside that portion of the
judgment by which the conviction of Irfan
was recorded without trial.

13. Consequentially, the revision is
allowed. Impugned order dated 23.3.2012
passed by Special Judge, EC Act, Gonda
in Criminal Appeal No. 24 of 2011 (by
which judgment of Trial Court dated
10.03.2011 passed by Addl Chief Judicial
Magistrate, Ist, Gonda in Crl. Case No.
2924 of 2009 was set aside) is set aside.
The matter is remanded back to the
Appellate Court with direction to restore
the Appeal on its own number. After reregistering the appeal on its own number
the appellate court shall send back the
record to the Trial Court to record the
finding in respect of charge framed
against accused persons under section 323
I.P.C. The Trial Court shall send back the
record with finding recorded in respect of
charge u/s 323 I.P.C. to the Appellate
Court. After receipt of the finding
recorded by the Trial Court, the Appellate
Court shall decide the Appeal on merit
after giving opportunity of being heard to
accused persons and prosecution.

14. The appellants shall remain on
bail during pendency of appeal in terms of
the order earlier passed. If bonds are
cancelled the appellants may file the
bonds as per order of the appellate court.

15. The appellants / accused shall
appear in person before appellate court on
6th of March, 2013.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.02.2013

BEFORE
THE HON'BLE ANIL KUMAR, J.

SERVICE SINGLE No. - 124 of 2010

Shiv Swaroop Trivedi S/O Late Deen
Dayal Trivedi

 ...Petitioner
Versus
State Of U.P. Thru Secy. Gramya Vikas &
Ors.

 ...Respondents

Counsel for the Petitioner:
Sri A.P. Singh Vatsa
Sri Vashu Deo Mishra
Sri Vinod Kumar Verma

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226recovery of excess amount -paid in
particular pay scale after completing 40
years of service-after retirement-it was
noticed that petitioner can not be given
the salary in that pay scale-no allegation
of fraud or misrepresentation-or being
instrumental in getting that pay scaleheld-can
not
be
recovered
without
affording opportunity of hearing.

Held: Para-38

 In the present case, promotional scale
has been given to the petitioner in
pursuance to the Government Order
dated
11.8.1983
by
his
employer
voluntary in bona fide manner without
there being any element of fraud on his
part subsequently cannot be recovered
from him when he is retired from service
after
attaining
the
age
of
superannuation on the ground that same
has wrongly been given to him by the
employer because his case comes within
the ambit and scope of the category of
those employee from whom if the excess
amount paid cannot be recovered as
mentioned in the case of Chandi Prasad
Uniyal (supra).
Case Law discussed:
2012 (3) LBESR 692 (SC); (1994) 2 SCC 521;
1995 (1) LBESR 206 (SC) ; (2006) 11 SCC
154 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
709; (2009) 3 SCC 475; AIR 1974 SC 602; AIR
1990 SC 313; (1976) 1 WLR 1255; (1970) 2
QB 417; (1971) 2 QB 175; (1969) 2 SCC 262;
(1978) 1 SCC 148; (1987) 4 SCC 431; AIR
1978 SC 851; (1970) 1 SCC 121; (2008) 3
UPLBEC 2517; (1996) 3 UPLBEC 1340; 2005
(23) LCD 177; (2002) 10 SCC 99; 1979 ALJ
184; AIR 1994 Supreme Court 2480

(Delivered by Hon'ble Anil Kumar,J.)

1. Heard Shri Vashu Deo Mishra,
learned counsel for the petitioner, Shri
Abhinav Narain Trivedi, learned Addl.
Chief Standing Counsel and perused the
record.

2. Shiv Swaroop Trivedi/petitioner
was appointed on 12.11.1968 on the post
of Junior Clerk in the department of
Gramya Vikas, State of U.P. and was
posted at Unnao. While he was working
in the department a new pay scale was
given to him as per the Government Order
dated 11.8.1983 vide G.O. No.Ve.Aa.-11802-Dus-34-(M)-83. After completing
40
years
of
successfully
services,
petitioner retired on 28.2.2009 from
service
after
attaining
the
age
of
superannuation from the post of Assistant
Accountant.

3. While he was enjoining retiral
life, the impugned order dated 28.8.2009
(Annexure No.1) was passed by the
opposite party no.4/District Development
Officer, Hardoi thereby directing to
recover the amount along with interest as
mentioned therein as the same had been
paid to him in excess as he was not
entitled for promotional scale given to
him in view of the Government Order
dated 11.8.1983.

4. Aggrieved by the same, petitioner
made a representation dated 2.11.2009
before the opposite part no.3/Chief
Development Officer, Hardoi, but no heed
was paid. Hence, he filed Writ Petition
No.124 (SS) of 2010 before this Court.

5. During the pendency of the
present writ petition, vide order dated
28.1.2010
the
District
Development
Officer, Hardoi rejected the representation
of the petitioner, as a result of which the
post retiral dues of the petitioner
including his General provident fund etc.
have been declined to be paid to him. So,
petitioner filed Writ Petition No.1686
(SS) of 2010.

6. Thereafter, Writ Petition No.1686
(SS) of 2010 and Writ Petition No.124
(SS) of 2010 were connected together and
were
disposed
of
by
order
dated
27.4.2010, relevant portion quoted herein
below:-

"From the record, it alleges that
some excess payment was made to the
petitioner by fixing wrong pay, as appears
from
the
impugned
order
dated
28.01.2010. The excess payment will have
to be recovered by the opposite parties.
But how much this is a question of
accounting. At this stage, learned counsel
for the petitioner is not ready with the
computation of arrears of excess payment.
So, the same cannot be verified.

In the circumstances, I direct the
petitioner to approach the respondent
no.3 i.e. Chief Development Officer,
Hardoi who with the help of opposite
parties no. 4 & 5 verified the excess
payment
and
computation
etc.
by
providing
the
opportunity
to
the
petitioner. The excess payment, if any,
will have to be recovered by way of
adjustment from the retiral dues of the
1 All] Shiv Swaroop Trivedi S/O Late Deen Dayal Trivedi Vs. State of U.P.& Ors.
155
petitioner. Thereafter, the entire retiral
dues will have to be released in favour of
the petitioner. This exercise will have to
be completed within four weeks after
receiving the certified copy of this order.

With the aforesaid direction, both the
writ petitions are disposed of."

7. Aggrieved by the said order,
petitioner filed a Special Appeal No.787
of 2010, disposed of by order dated
4.1.2012,
the
relevant
portion
is
reproduced herein below:-

"Counsel for the appellant has
submitted that in view of catena of
judgments of this Court as well as the
Apex
Court.
Since
there
was
no
misrepresentation by the appellant in the
matter of fixation of his pay, even if
wrong pay was fixed by the department on
its own and the salary was paid
accordingly, the excess amount so paid
could not be ordered to be recovered,
though the correct fixation could have
been
done
and
the
consequential
retirement benefits could have been
awarded as per the correct fixation.

We have gone through the record
and we find that the learned Single Judge
has not touched the merits of the claim of
the appellant at all and rather has
presumed that since some excess amount
has been paid, therefore, it has to be
refunded.
He
has
only
directed
calculation of the aforesaid amount and
refund thereof.

We are of considered view that since
the order does not bear any reason or
finding as to whether the appellant was
responsible for refund of the excess
amount or not, the order cannot be
sustained. It is hereby set aside and the
matter is directed to be listed before the
learned Single Judge having jurisdiction
to decide the claim of the appellant on
merit afresh.

Counter affidavit may be filed by the
State within three weeks.

List
the
writ
petition
for
orders/hearing in the month of February,
2012.

In the meantime, if any adjustment is
made that shall be subject to the final
orders passed in the writ petition.

The special appeal stands disposed
of."

8. In view of the abovesaid facts,
Writ Petition Nos.124 (SS) of 2010 and
1686 (SS) of 2010 again came up for
hearing before this Court.

9. After hearing learned counsel for
the parties and going through the records,
the position which emerges out is that
while petitioner was in service, new pay
scale/promotional scale was given to him
as per the Government Order dated
11.8.1983 which he received till he attain
the age of superannuation.

10.

Further,
the
said
pay
scale/promotional scale given to him
voluntarily by the employer without there
being any fraud or misrepresentation on
his part sought to be recovered, so
question arises in the present case that if
the said benefit is being given to him by
an employer voluntary in bona fide
manner in view of the Government Order
dated 11.8.1983 can be recovered from
the petitioner subsequently merely on the
156 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
ground
that
some
mistake
of
interpretation
of
rules
have
been
committed by the employer in regard to
payment of the same, for which the
petitioner could not be held responsible.

11. Answer to the said question find
place in the judgment of the Hon'ble
Supreme Court in the case of Chandi
Prasad Uniyal & Ors. vs. State of
Uttarakhand & Ors. 2012 (3) LBESR
692 (SC) wherein after considering the
earlier judgment passed on the point in
issue in the case of Shyam Babu Verma v
Union of India (1994) 2 SCC 521, Sahib
Ram v. State of Haryana 1995 (1)
LBESR 206 (SC), Col. B. J. Akkara
(Retd.) v. Government of India & Ors.
(2006) 11 SCC 709 and Syed Abdul
Qadir & Ors. v. State of Bihar & Ors.
(2009) 3 SCC 475 in paragraph nos.7 to
18 it has been held as under:-

" Para 7 - Appellants herein are
some of the teachers named in that letter;
similar communications had gone to few
other institutions, where appellants work.

Para 8 - We may point out
indisputedly, the appellants 1 and 2
herein were not in the pay scale of
Rs.4,250-6,400 as such they could not
have got the revised pay scale of
Rs.10,000-15,200/-
w.e.f.
01.07.2001.
Only if they were getting pay scale of
Rs.8000-13,500/- on 01.01.1996, they
would have been entitled to be placed in
the pay scale of 10,000-15,200 as on
01.07.2001. Further, appellants 3 to 5
were working as Assistant Teachers and
drawing in pay scale of Rs.3,600-5,350/-
as on 01.01.1996 and were placed in the
pay scale of Rs.5,500-9,000 as on
01.07.2001. Further, it was noticed that
none of the appellants were working as
principals and were never placed in the
pay
scale
of
8,000-15,500
as
on
01.01.1996 to get the benefit of the pay
scale of 10,000-15,200 as on 01.07.2001.
We also find only few persons like the
appellants have been getting higher pay
scale in the district of Haridwar w.e.f.
01.07.2001 and similarly situated persons
in the rest of Uttarakhand are getting the
same pay scale of Rs.10,000- 15,200 only
from 11.12.2007 and it was to rectify this
anomaly, the District Education Officer,
Haridwar
passed
the
order
dated
24.10.2009.

Para 9 - We may also indicate that
when the revised pay scale/pay fixation
was fixed on the basis of the 5th Central
Pay Scale, a condition was superimposed
which reads as follows:

"In the condition of irregular/wrong
pay fixation, the institution shall be
responsible for recovery of the amount
received
in
excess
from
the
salary/pension."

Para 10 - The appellants are further
bound by that condition as well. The facts,
mentioned hereinabove, would clearly
demonstrate that the excess salary was
paid due to irregular/wrong pay fixation
by the concerned District Education
Officer. The question is whether the
appellants can retain the amount received
on the basis of irregular/wrong pay
fixation
in
the
absence
of
any
misrepresentation or fraud on their part,
as contended.

Para 11 - We are of the considered
view,
after
going
through
various
judgments
1 All] Shiv Swaroop Trivedi S/O Late Deen Dayal Trivedi Vs. State of U.P.& Ors.
157

cited at the bar, that 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.

Para 12 - Shyam Babu Verma case
(supra)
was
a
three-Judge
Bench
judgment, in that case the higher pay
scale was erroneously paid in the year
1973, the same was sought to be
recovered in the year 1984 after a period
of eleven years. The court felt that the
sudden deduction of the pay scale from
Rs.330-560 to Rs.330-480 after several
years of implementation of said pay scale
had not only affected financially but even
the seniority of the petitioners. Under
such circumstance, this Court had taken
the view that it would not be just and
proper to recover any excess amount
paid.

Para 13 - In Sahib Ram case (supra),
a two-Judge Bench of this Court noticed
that the appellants therein did not possess
the required educational qualification and
consequently would not be entitled to the
relaxation
but
having
granted
the
relaxation and having paid the salary on
the revised scales, it was ordered that the
excess payment should not be recovered
applying the principle of equal pay for
equal work. In our view, this judgment is
inapplicable to the facts of this case. In
Yogeshwar Prasad case (supra), a twoJudge Bench of this Court after referring
to the above mentioned judgments took
the view that the grant of higher pay
could not be recovered unless it was a
case of misrepresentation or fraud. On
facts, neither misrepresentation nor fraud
could be attributed to appellants therein
and hence, restrained the recovery of
excess amount paid.

Para 14 - We may in this respect
refer to the judgment of two-Judge Bench
of this Court in Col. B.J. Akkara (retd.)
case (supra) where this Court after
referring to Shyam Babu Verma case,
Sahib Ram case (supra) and few other
decisions held as follows:

"Such relief, restraining recovery
back of excess payment, is granted by
courts not because of any right in the
employees, but in equity, in exercise of
judicial
discretion,
to
relieve
the
employees, from the hardship that will be
caused if recovery is implemented. A
Government servant, particularly one in
the lower rungs of service would spend
whatever emoluments he receives for the
upkeep of his family. If he receives an
excess payment for a long period, he
would spend it genuinely believing that he
is entitled to it. As any subsequent action
to recover the excess payment will cause
undue hardship to him, relief is granted in
that behalf. But where the employee had
knowledge that the payment received was
in excess of what was due or wrongly
paid, or where the error is detected or
corrected within a short time of wrong
payment, Courts will not grant relief
against recovery. The matter being in the
realm of judicial discretion, courts may
on the facts and circumstances of any
particular case refuse to grant such relief
against recovery."

Para 15 - Later, a three-Judge Bench
in Syed Abdul Qadir case (supra) after
referring to Shyam Babu Verma, Col. B.J.
Akkara
(retd.)
etc.
restrained
the
department from recovery of excess
amount paid, but held as follows:
158 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

"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 appellantsteachers, we are of the view that no
recovery of the amount that has been paid
in excess to the appellants-teachers
should be made.

Para 16 - We may point out that in
Syed Abdul Qadir case such a direction
was given keeping in view of the peculiar
facts and circumstances of that case since
the beneficiaries had either retired or
were on the verge of retirement and so as
to avoid any hardship to them.

Para 17 - 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.

Para 18 - 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 situations. 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 or
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."

12. Accordingly, in view of the said
judgment passed by Hon'ble the Supreme
1 All] Shiv Swaroop Trivedi S/O Late Deen Dayal Trivedi Vs. State of U.P.& Ors.
159
Court in the case of Chandi Prasad Uniyal
(supra), the law on the point can be
summarized that if salary or wages hav
been paid to an employee by an employer
voluntary in bona fide manner without
there being any element of fraud or
misrepresentation on his part can be
recovered from the employee but the
same cannot be recovered in two
circumstances (a) if an employee has
retired (b) on the verge of retirement .

13. Besides above, the next question
which is to be considered by the Court in
the the present case is that if an employee
does not fall in the two exceptional
categories (as mentioned above) can
excess amount paid be recovered from the
employee merely on the ground that some
mistake in regard to the interpretation of
the rules might have been committed by
the employer and that too without
affording any opportunity of being heard.

14. In order to decide the said
controversy on one hand it should be kept
in mind that an average employee is
considered to have no saving capacity
except through forced savings, such as,
contribution
to
Provident
Fund
or
premium towards Life Insurance etc. He
is expected to consume his pay packet in
meeting the daily needs for himself and
his family. If by mistake the employer
makes over payments and such mistake is
not induced by any representation from
the employee can he be held guilty, thus
liable to pay back the amount.

15. However, on the other hand,
there is a theory of "Unjust Enrichment"
as per the said theory where the employee
has received payments which is not his
entitlement,
such
receipt
of
excess
payments implies a corresponding duty in
the recipient to refund. In case a demand
is made for refund/recovery by the
authority which made the payment under
influence
of
any
mistake
or
misrepresentation or undue influence, the
employee is by law bound to make the
refund.

16. In Thomas Abraham v.
National Tyre & Rubber Co. (AIR 1974
SC 602), Hon'ble the Supreme Court held
that it is an established principle in
common law that an action for recovery
of money unduly received is a practical
and useful instrument to prevent unjust
enrichment. The law implies an obligation
to repay the money which is an unjust
benefit. So, it may be pleaded on behalf of
the authorities that the employee cannot
retain any monies paid to him by mistake
or erroneous considerations.

17. Unjust Enrichment is provided
under Section 72 of the Indian Contract
Act 1872. The Section runs:-

"72 Liability of person to whom
money is paid, or thing delivered, by
mistake or under coercion - A person to
whom money has been paid, or anything
delivered, by mistake or under coercion,
must repay or return it.

Illustrations

(a) A and B jointly owe 100 rupees to C.
A alone pays the amount to C, and B, not
knowing this fact, pays 100 rupees over
again to C. C. is bound to repay the
amount to B.

(b) A railway company refuses to deliver
up certain goods to the consignee except
upon the payment of an illegal charge for
carriage. The consignee pays the sum
160 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
charged in order to obtain the goods. He
is entitled to recover so much of the
charges as was illegally excessive."

18. The ingredients of the principle
of unjust enrichment has been enumerated
while interpreting the theory of Unjust
Enrichment by Hon'ble the Apex Court in
Mahavir Kishore v. State of M.P. (AIR
1990 SC 313) held as under:

First, that the defendant has been
'enriched' by the receipt of a 'benefit';

secondly, that this enrichment is 'at
the expense of the plaintiff' ; and

Thirdly, that the retention of the
enrichment is unjust.

19. Enrichment may take the form of
direct advantage to the recipient' s wealth
such as by the receipt of money or
indirect benefit, for instance, where
inevitable expense has been saved.

20. Further an order passed for
recovery of an amount is purely an
administrative order. But even so, justice
requires that notice to the employee can
not be dispensed with prior to the
recovery of the same. As no one can be
deny that an order passed would vitally
affects the employee from whom the
recovery is made on the ground that he is
not entitled for the same on the arounds of
misinterpretation of the rules etc. due to
mistake on the part of the employer for
which employee could not be responsible.
This aspect, by itself without more,
should convince us all that it would be not
only just but also necessary that such
employee should be given opportunity of
hearing before order of recovery of the
excess
amount
which
initially
was
wrongly paid to him without fraud or
misrepresentation on his part by the
employer. Because it is a basic principle
of our jurisprudence, which requires prior
notice to a person wherever decisions are
taken tending to affect vitally. This
principle has been held to govern the
action not only for courts of law, but also
tribunals and administrative authorities
etc., even in the absence of express
provision in the enacted law concerning
notice to the affected party. As by all
standards, rules of natural justice are great
assurances of justice and fairness. There
are certain basic values which a man has
cherished throughout the ages, they can
be described as natural law or divine law.
A man, as a reasonable being, must apply
this part of law to human affairs.

21. Apart from philosphical aspect,
the concept of natural justice has made
invaluable
contribution
to
the
development of positive law. It helped to
transform the rigidity of jus civile of the
Romans into more equitable system based
on the theory of jus gentinum. It inspired
the movement for codification of law in
order to formulate ideas derived from the
concept of natural law into detailed rules.

22. The object underlying the rules
of natural justice is to protect fundamental
liberties and civil and political rights.
They, therefore, should be interpreted
liberally so that they may conform, grow
and tailor to serve public interest and
respond to the demands of an evolving
society. The principles of natural justice
are essential to the framework of Indian
legal system.

23. Generally, no provision is found
in any statute requiring observance of the
principles
of
natural
justice
by
1 All] Shiv Swaroop Trivedi S/O Late Deen Dayal Trivedi Vs. State of U.P.& Ors.
161
adjudicating authorities. The question
then arises whether the adjudicating
authority is bound to follow the principles
of natural justice.

24. Lord Russell in the case of
Fairmount Investment Ltd. v. Secy. To
State for Environment (1976) I WLR
1255 held that it is to be implied unless
the contrary appears, that Parliament does
not authorize by the Act the exercise of
powers in breach of the principles of
natural justice, and that Parliament does
by the Act require, in the particular
procedures,
compliance
with
those
principles.

25. Lord Denning in the case of R. v.
Gaming Board for Great Britain, (1970)
2 QB 417 observed that at one time it was
said that the principles of natural justice
applied only to judicial proceedings and
not to administrative proceedings, but
"that heresy was scotched". So the
principles of natural justice are applicable
to
almost
the
whole
range
of
administrative powers. The presumption
is that it will always apply, however silent
about it the statute may be.

26. Further in the case of Breen v.
Amalgamated Engg. Union (I971) 2 QB
I75 Lord Denning observed that a
statutory body, which is entrusted by
statute with a discretion, must act fairly. It
does not matter whether its functions are
described as judicial or quasi- judicial on
the one hand, or as administrative on the
other hand.

27. In the historic case of A.K.
Kraipak v. Union of India (1969) 2 SCC
262 Hon'ble the Supreme Court held that
the aim of the rules of natural justice is to
secure justice or to put it negatively to
prevent miscarriage of justice. These rules
can operate only in areas not covered by
any law validly made. In other words they
do not supplant the law of the land but
supplement it.

28. In Maneka Gandhi v. Union of
India (1978) I SCC 248 it has been held
that it is well established that even where
there is no specific provision in a statute
or rules made thereunder for showing
cause against action proposed to be taken
against an individual, which affects the
rights of that individual the duty to give
reasonable opportunity to be heard will be
implied from the nature of the functions
to be performed by the authority which
has the power to take punitive or
damaging actions.

29. In K.I. Shephard v. Union of
India (1987) 4 SCC 431 Hon'ble the
Apex Court held that formerly the
presumption had been that there was no
obligation to give a hearing unless the
statute itself indicated such an obligation;
now the presumption is that there is such
an obligation unless the statute clearly
excludes it, notwithstanding the vesting of
a power, in subjective terms.

30. In the words of Hon'ble Mr.
Justice Krishna Iyer, in the case of
Mohinder Singh Gill v. Chief Election
Commr. AIR 1978 SC 851 held that
"what is a civil consequence, let us ask
ourselves, by passing verbal boobytraps?
'Civil consequences' undoubtedly cover
infraction of not merely property or
personal rights but of civil liberties,
material deprivations and non-pecuniary
damages."

31. Thus, principles of natural
justice are applicable to almost the whole
162 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
range of administrative powers. The
presumption is that it will always apply,
however silent about it the statute may be
because if we desire a society governed
by the rule of law. (See Board of High
School and Intermediate Education v.
Chitra Srivastava (I970) I SCC I2I).

32. Applying this fundamental
principles of natural justice to a wide
variety of proceedings in cases classified
by academic writers under the head
"Administrative law". And the learned
Judges have had no hesitation in setting
aside orders passed in the exercise of
quasi-judicial power, wherever there was
want of notice to the party affected.
Recent trends in court-decisions show that
this principle of natural justice must be
applied even to purely administrative
decision-making if that should affect an
individual employee.

33. In the case of Shiv Prakash
Richaria vs. State of U.P. and Ors.
(2008) 3 UPLBEC 2517 this court while
quashing an order of recovery against an
employee who has been paid excess
amount voluntarily by the employer
without there being any element of fraud
or misrepresentation on his part held as
under:-

"Another ground on which the
impugned order is liable to be set aside is
that no opportunity of hearing was
afforded by the respondents to the
petitioner prior to passing of the
impugned order."

34. A Division Bench of this Court
in the case of Harish Chandra Srivastava
vs. State of Uttar Pradesh and Ors. (1996)
3 UPLBEC 1340 while quashing an order
of recovery of an excess amount paid to
an employee without any fault on his part
in paragraph no.19, (the relevant portion
quoted) has held as under:-

"Para 19- The order impugned to
this writ petition is, therefore, liable to be
quashed not only on the ground of want of
affording reasonable opportunity of being
heard to the petitioner but also on the
ground that the petitioner cannot be held
responsible for securing promotion on the
higher scale of pay by misleading the
Department and therefore the payment of
salary cannot be recoverd."

35. In the case of Awadh Nath
Tripathi vs. Chief Development Officer,
Sant Kabir Nagar and Ors. 2005 (23)
LCD 177 after taking into consideration
the law as laid down by Hon'ble Supreme
Court in the case of Bihar State
Electricity Board and another v. Vijay
Bahadur and another (2002) 10 SCC 99,
and by this Court in the case of
Bindeshwari Sahai Srivastava v. Chief
Engineer,
Irrigation
Department,
Lucknow and others 1996 AWC 947 and
B.N.Singh v. State of U.P. 1979 ALJ 184
it has been held that if wages have been
paid to an employee by an employer
voluntarily in a bona fide manner without
there being any element of fault or misrepresentation
on
the
part
of
the
employee, subsequently the same cannot
be recovered by the employer on the
ground that the same has been wrongly
paid to the employee, without affording
any opportunity of hearing to him.

36. In the case of Bhagwan Shukla,
v. Union of India and others AIR 1994
Supreme Court 2480 wherein paragraph
no.3
held
as
under:-
1 All] Shailendra Pandey Vs. State of U.P.Thr. Prin. Secy. Nagar Vikas Vibhag, lko & Ors.
163

"We have heard learned counsel for
the parties. That the petitioner's basic
payhad been fixed since 1970 at Rs.190/-
p.m. is not disputed. There is also no
dispute that the basic pay of the appellant
was reduced to Rs.181/- p.m. from
Rs.190/- p.m. in 1991 retrospectively
w.e.f. 18-12-1970. the appellant has
obviously
been
visited
with
civil
consequence but he had been granted no
opportunity to show cause against the
reduction of his basic pay. He was not
even put on notice before his pay was
reduced by the department and the order
came to be made behind his back without
following any procedure known to law.
There, has, thus been a flagrant violation
of the principles of natural justice and the
appellant has been made to suffer huge
financial loss without being hears. Fair
play in action warrants that no such order
which has the effect of an employee
suffering civil consequence should be
passed without putting the concerned to
notice and giving him a hearing in the
matter."

37. Thus, in the light of the
abovesaid facts, if an employee has been
paid excess amount voluntarily by the
employer without there being any fault or
misrepresentation on his part and he does
not fall in the categories of employee as
given in the case of Chandi Prasad Uniyal
(supra) from whom the said amount can
not
be
recovered
then
from
such
employee the same can be recovered but
before doing so he may be given an
opportunity of hearing to put forward his
case/defence.

38. In the present case, promotional
scale has been given to the petitioner in
pursuance to the Government Order dated
11.8.1983 by his employer voluntary in
bona fide manner without there being any
element of fraud on his part subsequently
cannot be recovered from him when he is
retired from service after attaining the age
of superannuation on the ground that
same has wrongly been given to him by
the employer because his case comes
within the ambit and scope of the
category of those employee from whom if
the excess amount paid cannot be
recovered as mentioned in the case of
Chandi Prasad Uniyal (supra).

39. For the foregoing reasons, the
impugned
order
dated
28.8.2009
(Annexure No.1) passed by the opposite
party no.4/District Development Officer,
Hardoi in Writ Petition No.124 (SS) of
2010 as well as order dated 28.1.2010
passed by District Development Officer,
Hardoi in Writ Petition No.1686 (SS) of
2010 are set aside. Furhter, if any amount
has been recovered from the petitioner in
pursuance to the impugned orders under
challenge in the present writ petition, the
same shall be refund to him by the official
respondent and they are also directed to
release all the post retiral dues to the
petitioner for which he is entitled but
withheld by themt in pursuance to the
impugned orders, the said exercise shall
be done within a period of four weeks
from the date of receiving a certified copy
of this order .

40. With the above observations,
both writ petitions are allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.02.2013

BEFORE
THE HON'BLE UMA NATH SINGH, J.
THE HON'BLE VIRENDRA KUMAR DIXIT, J.