Waiver Of Recovery Of Overpayment In Case Of Inadmissible Advance Increments -Judgment 31.01.2000
OFFICE MEMORANDUM
Subject: Waiver Of Recovery Of Overpayment In Case Of Inadmissible Advance Increments
Learned counsel for petitioner after examining reply filed by respondents and the Prospectus of Government College of Technology. Road Campus, Lahore does not press the petition, provided in dance with dictum laid by this Court in case Engineer-in-Chief Branch (PLD 1992 SC 207) respondents are restrained from recovering the amount already received by petitioner. Learned Additional Advocate-General in view of said reported judgement does not object to the same Even otherwise it is quite apparent that if any payment has been made erroneously by respondents/employer and civil servants received it, under good faith with bona-fide impression of his being entitled the same cannot be recovered because principle of locus penitentiary would be applicable in such circumstances. However, for elucidation relevant observations from afore-quoted judgement are also reproduced below:
“It is, therefore, clear that the Tribunal has also not disputed the contention of the appellant that respondent was not entitled to be fixed in Grade-II of National Pay Scale. The principle of locus penitentiary was invoked by the learned Tribunal in aid of the respondent. Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present. Additionally, under section 21 of the General Clauses Act, the authority, which can pass an order, is entitled to vary, amend, add to or to rescind that order.
The order under which the payment was made to the respondent had no sanction of law. Locus Penitentiary is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is legal then perpetual rights cannot be gained on the basis of an illegal order. The appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade-II, they withdrew the said letter. The principle of locus. penitentiary would not apply in this case.
However, as the respondent had received the amount on the belief, the appellant is not entitled to recover the amount drawn by the respondent during the period when latter remained in the field. Learned counsel for the appellants had submitted that they appellants had drawn Rs.12,890.86 (Rupees twelve thousand, eight hundred, ninety and paisa eighty six only) during this period but the Engineer-in-Chief had directed the recovery of Rs.1,860.00 (Rupees one thousand, eight hundred, sixty and paisa nil only).
We consider that as far as the recovery of the amount in question is concerned, the principle of locus penitentiary would be applicable and the The appellants are not entitled to recover the amount. appellants have themselves taken a liberal view and the recovery of only 12 months is being made.
For the reasons stated above, we accept this appeal However, the and set aside the order of the Tribunal. appellants would not recover even Rs.1,860.00 (Rupees one thousand, eight hundred, sixty and paisa nil only) from the respondent. There would be no order as to costs.”
Accordingly, with consent the petition is converted into appeal and partly accepted. The claim pertaining to future payment demanded by the Whereas, respondents are restrained from petitioner is dismissed. affecting recovery in respect of the amount already paid to the petitioner on the basis of advance increments. Petition on conversion into appeal stands disposed of in above terms. Parties are left to bear their own costs.
The conclusion of the Judgment dated 31.01.2000 regarding the Waiver of Recovery of Overpayment in Case of Inadmissible Advance Increments is that recovery of overpaid amounts can be waived under specific conditions. These include:
- No fault of the employee: The overpayment occurred without any wrongdoing or dishonesty from the employee.
- Financial hardship: Recovering the money would cause significant financial difficulty for the employee.
- Good faith: The employee believed they were rightfully entitled to the extra payment.
- Public interest: It is sometimes in the best interest of the public to not pursue recovery, especially when it would impose a heavy burden on the employee.
In essence, if the overpayment wasn’t the employee’s fault and paying it back would create financial strain, the court may decide not to demand repayment.
