Excess pay given due to dept mistake cannot be recovered from

Madras High Court today said that if excess pay was granted to an employee due to the mistake of the department and not due to any misrepresentation by him, that amount shall not be recovered from the worker from the retiral benefits, that too after retirement.
Allowing a petition from K Syed Razack, a retired Police Inspector, Justice D Hariparanthaman set aside the order of the Commissioner of Police, Chennai, to recover Rs 36,312 from the DCRG (Death-Cum-Retirement Gratuity) of the petitioner.
He directed the authorities not to make any recovery on the ground of any wrong fixation done during the service, as it was not the petitioner's mistake.

The judge also directed that the amount be refunded if any already recovered from the petitioner within six weeks.
Razack submitted he was appointed Grade-II constable on June 1, 1971. After two promotions, he was listed in 'C' list of head constables fit for promotion to Sub-Inspector's post on Sep 22, 1985. As there was no vacancy, he was not promoted at that time.
Later, he was promoted temporarily as SI on September 15, 1987 and also paid salary by fixing his pay to the post. He was regularised in the post with effect from August 17 1992, promoted as Inspector on October 15,2003 and retired from service on January 31, 2009.

When the pension proposals were sent, the Accountant General opined that the benefit of fixation was given from September 15, 1987 and should be given only from the date of regularisation of service (August 7, 1992).

The CoP then passed an order to recover Rs 36,312 from the DCRG of Razack towards alleged excess payment due to the fixation.
Citing a judgment of a division bench, which held such recovery was bad, the judge said he was also of the view that the judgement applies to the facts of this particular case.
"Any wrong fixation that was said to have been made in 1987 shall not be sought to be recovered, after retirement in 2009, more particularly, when it is not the case of the authorities that the wrong fixation was done at the instance of the petitioner by way of misrepresentation."

"Even, if there was any error, the petitioner cannot be made to suffer after retirement, by way of recovery," the judge said.