Gujarat High Court
Nathabhai Chaturbhai Patel vs State Of Gujarat & 2 on 13 February, 2015
Author: C.L. Soni
Bench: C.L. Soni
C/SCA/5358/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5358 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment No
?
4 Whether this case involves a substantial question of law as to the No
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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NATHABHAI CHATURBHAI PATEL
Versus
STATE OF GUJARAT & 2
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Appearance:
MR RUTUL P DESAI, ADVOCATE for the Petitioner
MR ROHAN YAGNIK, ASSTT GOVT PLEADER for Respondent(s) No. 1 , 3
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 13/02/2015
ORAL JUDGMENT
1. The petitioner who is a retired Class-III employee has filed this petition under Article 226 of the Constitution of India for following prayers:-
(A) Directing the respondents to refund the amount of Rs.44000/- with 9% interest from 1.6.2001 till payment.Page 1 of 14
C/SCA/5358/2004 JUDGMENT
(B) Directing the respondents to fix and pay salary and
pensionery benefits to the petitioner on the basis that he was in the pay scale of Rs.5000-8000 from 1.1.96 and not in the pay scale of Rs.4500-7000, and to pay the resultant arrears with 9% interest.
(C) During the pendency and final disposal of this petition, Respondents may be directed to pay the amount of Rs.50000/- to the petitioner.
(D) to grant such other and further relief as may be deemed fit.
2. The case of the petitioner is that he was appointed as Vaccinator on 9.10.1962 and promoted to the post of Sanitary Sub Inspector from 6.1.1964 and lastly promoted to the post of Sanitary Inspector from 19.6.1965. He was granted selection grade from 18.6.1985. The State of Gujarat introduced a scheme of higher grade scale by resolution dated 5.7.1991 which was later on modified by resolution dated 16.8.1994. As stated in the petition, the petitioner was also granted benefit of higher grade scale. The petitioner retired after enjoying such benefits on 31.3.2001. However, immediately before the petitioner retired, the respondents recovered amounts of Rs.945/-, Rs.21,384/- and further recovered Rs.21,739/- after his retirement by deducting from his gratuity amount on the ground that the petitioner was not entitled to such amounts and since payment was made in excess of entitlement of the petitioner, the petitioner was required to refund such amounts.
3. The petitioner has stated that the petitioner refunded such amount under compulsion as the petitioner wanted his pension benefit released.
4. The petition is opposed by affidavit-in-reply mainly stating that the since the petitioner got two promotions, he was neither entitled to selection grade benefit nor even higher grade benefit and since Page 2 of 14 C/SCA/5358/2004 JUDGMENT the petitioner wrongly enjoyed the said benefits and had given undertaking to refund the amount if found that it was wrongly paid to him, he would repay the amounts. Therefore, no illegality is committed by the concerned authorities in recovering the above amounts. As regards higher pay scale, it is stated in the reply that at the time of revision of pay scale, pay scale of Rs.5000-8000/- was wrongly fixed instead of Rs,.4500-7000 and therefore, the pay scale of the petitioner was reduced.
5. I have heard learned advocates for the parties.
6. Learned advocate Mr. Desai appearing for the petitioner submitted that it was an illegal action of recovery on the part of the respondents, and the petitioner had no other option but to agree for repay the amount to get his pension benefits. Mr. Desai submitted that since the petitioner was Class-III employee, after having got the benefits of selection grade in the year 1985 and further benefit of higher grade, it was harsh action on the part of the respondent authorities to recover the amounts at the time when the petitioner was retiring. Mr. Desai submitted that in any case, before recovery of the above-said amount or before reducing the pay scale of the petitioner, no hearing was accorded to the petitioner and therefore also, the action taken by the respondent authorities of recovery of the amount and of reducing the pay scale would not stand scrutiny of law as the same is against the principles of natural justice.
7. Learned advocate Mr. Munshaw appearing for respondent No.2 submitted that when the petitioner got benefit of selection grade, he had given undertaking to refund the amount if found that he was not entitled to such benefit. Mr. Munshaw submitted that even at the time of retirement, after being fully conscious about signing the undertaking, the petitioner voluntarily repaid the amount and Page 3 of 14 C/SCA/5358/2004 JUDGMENT therefore, now it is not permissible for the petitioner to ask for refund of such amount from the respondents. Mr. Munshaw submitted that if the petitioner was otherwise not entitled to get benefits of selection grade and higher pay scale, then there is no question of affording any hearing to the petitioner as even if hearing is granted, illegality is not to be cured and mere following the procedure of affording hearing should not be asked to be undertaken as illegality would be perpetuated.
8. Learned Assistant Government Pleader Mr. Yagnik appearing for respondent Nos.1 and 3 while adopting the arguments of learned advocate Mr. Munshaw submitted when the petitioner had got benefits of selection grade and higher grade scale, he had understood importance of giving of undertaking and if as per his undertaking, amount is required to be recovered from him, it cannot be said that the respondents have committed any illegality.
9. Having heard learned advocates for the parties, it appears that the petitioner got benefit of selection grade in the year 1985 and thereafter on introduction of the policy for grant of higher pay scale in the year 1994, the petitioner got benefit of higher pay scale. It is true that at the relevant time, when the petitioner got benefit of selection grade, the petitioner had given undertaking to repay the amount if it was found that above-said benefits were not payable to the petitioner. However, it is required to be noted that after getting the above benefits, the petitioner continued in his service for long time and during that period, the respondents did not think it fit to take any action for the purpose of recovery of the amounts alleged to have been wrongly paid to the petitioner. It is not in dispute that the respondents have not passed any specific order for recovery of the amount which was long before paid to the petitioner. In such view of the matter, question is that could the petitioner be made liable to Page 4 of 14 C/SCA/5358/2004 JUDGMENT repay the amount on the basis of his undertaking at the time when he retired? The petitioner in his petition has stated that he was asked to give undertaking that amount of Rs.21,739/ - be deducted from his gratuity amount and if such undertaking was not given, he would not be getting pension benefits.
10. Learned advocate Mr. Munshaw, however, submitted that it was when audit objection was taken at later stage, recovery of the above amounts was required to be made. However, what is not in dispute is that long before the retirement of the petitioner, the petitioner enjoyed above-said amounts and on his retirement, he was asked to repay such amounts. The petitioner is a Class-III employee and repayment or deduction of any amount at the time of retirement of such Class-III employee would definitely work harsh upon him.
11. In the case of Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others reported in (2012)8 SCC 417, relied on by Mr. Munshaw, paragraph 7, 13 and 14 read as under:-
7. 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."
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.
11. We may in this respect refer to the judgment of two-Judge Bench of this Court in Col. B.J. Akkara (Retd.) case (2006 AIR SCW 5252) (supra) where this Court after referring to Shyam Babu Verma case, Sahib Ram case (supra) and few other decisions held as follows:
Page 5 of 14C/SCA/5358/2004 JUDGMENT "28. 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."
12. Later, a three-Judge Bench in Syed Abdul Qadir case (2009 AIR SCW 1871) (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:
"59. 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 appellants- teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.
(Emphasis added)"
We may point out that in Syed Abdul Qadir case (2009 AIR SCW 1891) 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.
12. In the recent decision of Hon'ble Supreme Court in the case of State of Punjab and others etc. Vs. Rafiq Masih (White Washer) etc. in Page 6 of 14 C/SCA/5358/2004 JUDGMENT Civil Appeal No.11527 of 2014, Hon'ble Supreme Court has considered the decision in the case of Chandi Prasad Uniyal (supra) and has held and observed in para 11 and 12 as under:-
11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters.
(i). Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, wherein this Court recorded the following observation in paragraph 58:
"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Union of India v. M. Bhaskar, (1996) 4 SCC 416, V. Ganga Ram v. Director, (1997) 6 SCC 139, Col. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492, Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99." (emphasis is ours) First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her Page 7 of 14 C/SCA/5358/2004 JUDGMENT wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521, wherein this Court observed as under:
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330- 560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."
(emphasis is ours) It is apparent, that in Shyam Babu Verma's case (supra), the higher pay scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay- scale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.
(ii). Examining a similar proposition, this Court in Col. B.J. Akkara v. Government of India, (2006) 11 SCC 709, observed as under:
"28. Such relief, restraining back recovery 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 Page 8 of 14 C/SCA/5358/2004 JUDGMENT 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."
(emphasis is ours) A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case (supra) reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e., Class-III and Class-IV - sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.
(iii). This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows:
"59. Undoubtedly, the excess amount that has been paid to the appellant 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 appellant 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."Page 9 of 14
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(emphasis is ours)
Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation.
(iv). Last of all, reference may be made to the decision in Sahib Ram Verma v. Union of India, (1995) Supp. 1 SCC 18, wherein it was concluded as under:
"4. Mr. Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs 220-550 to which the appellant was entitled became Rs 700-1600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs 700-1600 but they insisted upon the minimum educational qualification of first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself.
5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any Page 10 of 14 C/SCA/5358/2004 JUDGMENT misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."
(emphasis is ours) It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs.700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science, the degree of M.Lib. Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verma's case (supra), a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were ineligible for the same. The concerned appellants were held not eligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post.
12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been Page 11 of 14 C/SCA/5358/2004 JUDGMENT paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
13. In the case on hand, the petitioner, a Class-III employee who got benefits of selection grade and higher grade long before his retirement, was asked to repay such benefits at the time when he was retiring. Therefore, recovery from the petitioner of the amounts which were enjoyed by him long before his retirement would not stand test of reasonableness on the part of the respondents in light of above recent decision of Hon'ble Supreme Court. The respondents are, therefore, required to refund such amounts to the petitioner.
14. As regards fixing the pay of the petitioner in the pay scale of Rs.4500-7000/- by reducing the pay scale from Rs.5000-8000/-, undisputably, no hearing was accorded to the petitioner. In the pay revision of 1998, the pay scale of the petitioner was revised to Rs.5000-8000/-. However, later on the said pay scale was reduced on the ground that the petitioner was not entitled to be placed in the pay scale of Rs.5000-8000/- but before reducing such pay scale, undisputably, the petitioner was not given any opportunity of hearing and thus, there was breach of the principles of natural justice before taking action of reducing the pay scale of the petitioner. Learned advocate Mr. Desai has relied upon different judgments and orders of this Court passed in other petitions so as to urge that before reducing the pay scale of an employee, principles of natural justices are required to be followed, however it is not a matter of much debate that any action which entails civil consequences could be taken only after following the principles of natural justice. In such view of the matter, the respondents are required to be directed to accord Page 12 of 14 C/SCA/5358/2004 JUDGMENT hearing to the petitioner on the aspect of reduction of pay scale of the petitioner from Rs.5000-8000/- to Rs.4500-7000/- and to pass fresh order.
15. For the reasons stated above, the petition is partly allowed. The respondents are directed to refund amount of Rs.44,000/- to the petitioner which was recovered from him within a period of ONE MONTH from the date of receipt of this order. The respondents are also directed to grant opportunity of hearing to the petitioner as regards action of reducing the pay scale of the petitioner from Rs.5000-8000/- to Rs.4500-7000/- and then to pass fresh order on the aspect of reducing the pay scale of the petitioner. It will be open to the petitioner to raise all contentions available under law before the concerned authority as and when hearing is accorded to the petitioner for the purpose of taking action of reduction of pay scale of the petitioner.
16. Learned advocate Mr. Desai however urged that since the petitioner was made to repay the amount which was otherwise not permissible to the respondents, and now since this Court is finding that the action of the respondents in recovering the amounts from the petitioner is illegal, this Court may award interest at the rate of 9% on the amounts to be refunded to the petitioner. Such contention cannot be accepted as the issue of entitlement of the petitioner was highly debated. Not only this but undisputably the petitioner had given undertaking at the time when he got the benefits to repay the amount and even at the time of his retirement. The respondents are directed to refund the amount recovered from the petitioner only on the ground that the petitioner when enjoyed the benefits long before his retirement age, asking the petitioner to repay the amount at the time of his retirement would work harsh on the petitioner and relying upon the observations of the Hon'ble supreme Court, benefit of Page 13 of 14 C/SCA/5358/2004 JUDGMENT refund is given to the petitioner by this order as the petitioner is Class-III employee. In such view of the matter, prayer to grant interest on the amount to be refunded to the petitioner cannot be accepted and hence rejected.
Rule is made absolute to the aforesaid extent.
Sd/-
(C.L. SONI, J.) omkar Page 14 of 14