STATE OF MADHYA PRADESH Vs. R.C. VARMA

JUDGEMENT

(1.) THE 1st respondent having served in the Water Resources Department as Sub-Engineer, retired from service on attaining age of superanuation with effect from 30-4-1998. After his retirement, the Department, on the ground that the first respondent's pay was wrongly fixed by administrative clerk in the year 1980 while extending Selection Grade to the 1st respondent, by its order dated 4-9-1998, sought to recover sum of Rs. 1,07,267/-, being excessive payment made to him due to wrong fixation of his salary in the year 1980. When that action of the Department was assailed before the Madhya Pradesh Administrative Tribunal, Raipur Bench (for short 'the Tribunal'), in Original Application No. 896/199, the Tribunal had come to the conclusion that the pay of the 1st respondent was wrongly fixed in the year 1980. Nevertheless, the Tribunal took exception to the action of the Department to recover the excess amount from the pensionery benefits payable to the petitioner on his retirement on the ground that the Department has failed to prove that the 1st respondent in any way misrepresented or contributed in wrong fixation of his salary in the year 1980. THE Tribunal in he premise of the above finding and also placing reliance on the judgment of the Apex Court in Nand Kishore v. Union of India 1995 (31) ATC 786, quashed the order of recovery and directed that whatever money already recovered should be returned to the 1st respondent. Hence, this writ petition by the aggrieved State and its authorities.

(2.) WE have heard learned Counsel for the parties. It was contended by the learned Dy. Advocate General for the State that since, admittedly the 1st respondent received excess money from the State, he should not be allowed to make unlawful gain at the peril of the State interest. It was highlighted that an Officer like the 1st respondent who held responsible post in the Irrigation Department, must have known that his salary was wrongly fixed and therefore, there was a duty cast on him to inform the Department to fix his salary correctly and having failed to do so, he is not entitled to contest the action of the Department to recover the excess money paid to him. Per contra, learned Counsel appearing for the 1st respondent would submit that in view of the clear finding recorded by the Tribunal that there is no evidence to show that the 1st respondent had received excess sum of money by any malafide act on his part, in view of the settled law, the Department particularly at this distance of time, should not be allowed to recover the excess money paid to the petitioner. In support of the submission, learned Counsel for the 1st respondent would place reliance on the judgment of the Supreme Court in the case of Sahibram v. State of Haryana and Ors. 1995 (1) SCC 18.