O&M) Dhand v. State of Punjab and others
Case Details
CWP-17822-200 2005 (O&M) and connected cases cases - 1- IN THE HIGH COURT OF PUNJ IN T AT CHANDIGAR PUNJAB & HARYANA IGARH 890 Date of decision: 03.05.2025 1. CWP-17822-20 Sohan Lal Dhand 2005 (O&M) Dhand vs. State of Punjab and others 2. CWP-17342-20 Vijay Mohan Kap 2005 (O&M) others an Kapil vs. State of Punjab and others 3. CWP-21338-20 Pawan Kumar vs. 2010 (O&M) ar vs. State of Punjab and others CORAM: HON
Legal Reasoning
onsideration is not about the legality o “7. T “7. The issue falling for our conside nd the financial benefit granted to th the r the retrospective promotion and the he issue for consideration is whethe appellants on 10.05.2017. The issu appe ed to the appellants while they were recov recovery of the amount extended to service is justified after their re eir retirement and that too withou servi earing.(cid:1) affording any opportunity of hearing affor tena of been settled by this Court in catena o The law in this regard has been s 8. Th again; Sahib Ram vs. State of Haryana aryana, judgm judgments rendered time and again; yam Babu Verma vs. Union of India f India, (1995) Supp (1) SCC 18, Shyam B (199 CC 416 ndia vs. M. Bhaskar, (1996) 4 SCC 41 (1994) 2 SCC 521, Union of India vs (199 and in l Jt. Director, (1997) 6 SCC 139 and i and V and V. Gangaram vs. Regional Jt. D Kerala a recent decision in the matter of Th r of Thomas Daniel vs. State of Keral a rec . & Ors., (2022) SCC online SC 536. & Or 9. T 9. This Court has consistently tak amou amount was not paid on account of a the part of the employee or if such e the p empl employer by applying a wrong pay/a pay/allowance or on the basis of rule/order, which is subsequently fo rule/ payments of emoluments or allowan paym that that such relief against the recovery employee but in equity, exercising ju empl to the employee from the hardship th to th is ordered.(cid:1) is ord 10. I 10. In Thomas Daniel (supra), this 11, 12 and 13: 11, 1 tly taken the view that if the exces nt of any misrepresentation or fraud o such excess payment was made by th rong principle for calculating th sis of a particular interpretation o tly found to be erroneous, such exces lowances are not recoverable. It is hel overy is not because of any right of th sing judicial discretion to provide relie ship that will be caused if the recover excess raud on by the ng the tion of excess is held t of the e relief ecovery aras 10, ), this Court has held thus in paras 10 “10. In Sahib Ram v. State o recovery of payment which w scale on account of wrong con tate of Haryana, this Court restraine hich was given under the upgraded pa ng construction of relevant order by th strained ded pay r by the ASHOK KUMAR 2025.05.05 09:59 I attest to the accuracy and integrity of this document CWP-17822-200 2005 (O&M) and connected cases cases - 3- 2 this part of ithout any misrepresentation on part o authority concerned, without eld thus:(cid:1) the employees. It was held thu equired pellant does not possess the require “5. Admittedly the appellant es the th the circumstances ons. Under educational qualifications. rincipal entitled to the relaxation. The Principa appellant would not be entitle date of the relaxation. Since the date o erred in granting him the revised had been paid his salary on the revise relaxation, the appellant had b entation t on account of any misrepresentatio scale. However, it is not on a y scale that the benefit of the higher pay scal made by the appellant that th by the by wrong construction made by th was given to him but by w at fault. appellant cannot be held to be at faul Principal for which the appell not be s the amount paid till date may not b Under the circumstances the a pay for ellant. The principle of equal pay fo recovered from the appellant. by the apply to the scales prescribed by th equal work would not apply partly mission. The appeal is allowed partl University Grants Commissio costs.”(cid:1) without any order as to costs.” (Retd.) v. Government of India2 thi 11. In Col. B.J. Akkara (Retd ntical question as under: Court considered an identical q should o be considered is whether relief shoul “27. The last question to be co ts made recovery of the excess payments mad be granted against the recove of the ng interpretation/understanding of th on account of the wrong int granted . This Court has consistently grante circular dated 7-6-1999. This nt of ry of excess wrong payment o relief against recovery of llowing from an employee, if the followin emoluments/allowances from aryana (vide Sahib Ram v. State of Haryan conditions are fulfilled (vide m Babu : 1995 SCC (L&S) 248], Shyam Bab [1995 Supp (1) SCC 18 : 1995 C (L&S) a [(1994) 2 SCC 521 : 1994 SCC (L& Verma v. Union of India [(199 haskar 121], Union of India v. M. Bhaska 683 : (1994) 27 ATC 121], ngaram 96 SCC (L&S) 967] and V. Gangaram [(1996) 4 SCC 416 : 1996 SC (L&S) [(1997) 6 SCC 139 : 1997 SCC (L&S v. Regional Jt. Director [(1997 1652]):(cid:1) (a) The excess payment was misrepresentation or fraud on (b) Such excess payment w applying a wrong principle for on the basis of a particular inte subsequently found to be erron 28. Such relief, restraining bac granted by courts not because but in equity, in exercise of employees from the hardship implemented. A government lower rungs of service would receives for the upkeep of his payment for a long period, believing that he is entitled to recover the excess payment w relief is granted in that beha knowledge that the payment was due or wrongly paid, or corrected within a short time o nt was not made on account of an ud on the part of the employee.(cid:1) ent was made by the employer b ple for calculating the pay/allowance o lar interpretation of rule/order, which i e erroneous.(cid:1) ment, is ing back recovery of excess payment, i ecause of any right in the employees loyees, eve the se of judicial discretion to relieve th very is dship that will be caused if recovery i in the ent servant, particularly one in th ents he would spend whatever emoluments h excess of his family. If he receives an exces nuinely eriod, he would spend it, genuinel ction to itled to it. As any subsequent action t ent will cause undue hardship to him to him, ee had t behalf. But where the employee ha of what ment received was in excess of wha ted or aid, or where the error is detected o will not time of wrong payment, courts will no yer by ance or hich is of any ASHOK KUMAR 2025.05.05 09:59 I attest to the accuracy and integrity of this document CWP-17822-200 2005 (O&M) and connected cases cases - 4- very. The matter being in the realm o ts may on the facts and circumstance refuse to grant such relief agains ealm of stances against grant relief against recovery. judicial discretion, courts may of any particular case refus recovery.(cid:1) 29. On the same principle, pen that wrong payments should are in a more disadvantageou service employees. Any atte payment would cause undue h are not guilty of any misrepres excess payment. NPA was purposes of stepping up, due implementing departments. W the respondents shall not reco towards pension in pursuance the issue of the clarificatory c as any excess payment made a obviously the Union of India excess as the validity of the s as pensioners have been put o calculations earlier made.”(cid:1) 12. In Syed Abdul Qadir v. was sought to be recovered w teachers on account of mista prevailing Bihar Nationalise Conditions) Rules, 1983. The even if it were to be held that t the benefit of additional incr amount should not be recovere without any misrepresentation held that the appellants canno situation and recovery of the ordered, especially when th retired. The court observed tha prohibited by courts where the fraud on the part of the employ by has b interpretation/understanding o thus:(cid:1) “59. Undoubtedly, the excess appellant teachers was not bec fraud on their part and the ap that the amount that was bei what they were entitled to. I mention here that the Finance affidavit, admitted that it was The excess payment mad interpretation of the Rule th which the appellants cannot whole confusion was becau carelessness of the officials c made been irection le, pensioners can also seek a directio sioners hould not be recovered, as pensioner d to in- tageous position when compared to in wrong y attempt to recover excess wron itioners ndue hardship to them. The petitioner d to the srepresentation or fraud in regard to th ay, for was added to minimum pay, fo by the , due to a wrong understanding by th ew that nts. We are therefore of the view tha s made ot recover any excess payments mad 999 till uance of the circular dated 7-6-1999 ti Insofar atory circular dated 11-9-2001. Insofa ade after the circular dated 11-9-2001 2001, ver the f India will be entitled to recover th eld and f the said circular has been upheld an wrong n put on notice in regard to the wron ayment dir v. State of Bihar3 excess paymen ellants- red which was made to the appellants tion of mistake and wrong interpretation o Service onalised Secondary School (Servic ded that . The appellants therein contended tha titled to d that the appellants were not entitled t excess l increment on promotion, the exces en paid covered from them, it having been pai e Court tation or fraud on their part. The Cour such a cannot be held responsible in such not be of the excess payment should not b quently hen the employee has subsequentl overy is ved that in general parlance, recovery i ation or ere there exists no misrepresentation o ayment employee and when the excess paymen wron wrong as held ding of a Rule or Order. It was hel applying a xcess amount that has been paid to th ot because of any misrepresentation o the appellants also had no knowledg as being paid to them was more tha d to. It would not be out of place t inance Department had, in its counter it was a bona fide mistake on their par made was the result of wron ule that was applicable to them, fo annot be held responsible. Rather, th because of inaction, negligence an cials concerned of the Government o d to the ation or wledge re than lace to ounter- eir part. wrong em, for her, the ce and ment of ASHOK KUMAR 2025.05.05 09:59 I attest to the accuracy and integrity of this document CWP-17822-200 2005 (O&M) and connected cases cases - 5- Bihar. Learned counsel appea teachers submitted that majori retired or are on the verge of facts and circumstances of th hardship to the appellant teac recovery of the amount that appellant teachers should be m 13. In State of Punjab v. R wherein this court examined t the State to recover the mone the beneficiary employees i without any fault or misrepr recipient. This Court consider to an employee, if recovery employer and disallowed the employees from such recovery “8. As between two parties, i favour of the party, which is any serious detriment to the State), the issue resolved wo concept of justice, which is even in the Preamble of the C recover being pursued by t compared, with the effect of concerned. If the effect of t concerned would be, more improper, and more unwarran of the employer to recover iniquitous and arbitrary, to situation, the employee's right eclipse, the right of the employ Xxxxxxxxx(cid:1) 18. It is not possible to pos which would govern employ where payments have mistake in excess of their entitlement. decisions referred to hereinabo summarise the following few the employers, would be impe (i) Recovery from the emplo Class IV service (or Group C a (ii) Recovery from the retire who are due to retire within on (iii) Recovery from the emplo has been made for a period in order of recovery is issued.(cid:1) (iv) Recovery in cases where a required to discharge duties of accordingly, even though h required to work against an inf ppellant e either peculiar oid any that no to the C 334 ssed by nded to lements of the caused rse the eficiary l appearing on behalf of the appellan majority of the beneficiaries have eithe rge of it. Keeping in view the peculia of the case at hand and to avoid an nt teachers, we are of the view that n t that has been paid in excess to th d be made.”(cid:1) v. Rafiq Masih, (2015) 4 SCC 33 ined the validity of an order passed b e monetary gains wrongly extended t yees in excess of their entitlement isrepresentation at the behest of th nsidered situations of hardship cause covery is directed to reimburse th d the same, exempting the beneficiar covery. It was held thus: rties, if a determination is rendered i ered in ich is the weaker of the two, withou without welfare to the other (which is truly a welfar ith the ed would be in consonance with th ch is assured to the citizens of India f India, right to f the Constitution of India. The right t to be by the employer, will have to b ployee fect of the recovery on the employe ployee t of the recovery from the employe , more more unfair, more wrongful, mor ng right arranted, than the corresponding righ uld be cover the amount, then it would b such a y, to effect the recovery. In such erefore 's right would outbalance, and therefor employer to recover.(cid:1) ardship to postulate all situations of hardshi employees on the issue of recovery covery, ployer, istakenly been made by the employ on the ement. Be that as it may, based on th ference, einabove, we may, as a ready referenc eries by g few situations, wherein recoveries b impermissible in law:(cid:1) employees belonging to Class III an up C and Group D service).(cid:1) ployees retired employees, or the employee overy.(cid:1) thin one year, of the order of recovery. ayment employees, when the excess paymen fore the riod in excess of five years, before th III and here an employee has wrongfully bee ties of a higher post, and has been pai ugh he should have rightfully bee t an inferior post.(cid:1) lly been en paid y been ASHOK KUMAR 2025.05.05 09:59 I attest to the accuracy and integrity of this document CWP-17822-200 2005 (O&M) and connected cases cases - 6- (v) In any other case, where th that recovery if made from th or harsh or arbitrary to such a the equitable balance of the em (cid:1) here the court arrives at the conclusion clusion, iquitous rom the employee, would be iniquitou utweigh such an extent, as would far outweig the employer's right to recover.”(cid:1) 5. In the case at hand, there is nothing i In th at the thing in the written statement that the petitioner receive eceived the amount by making any mis ment ny misrepresentation or concealment of facts. 6. Despite best efforts the learned Sta Desp ed State counsel has not been able to dispute the fact e factual position and draw out out any distinctive aspects in th in the aforementioned ju oned judgment or cite any contrary law ry law. 7. In view of the afore, the present petit In vi nt petitions are partly allowed insofar ar as recovery ordered dered is concerned. 8. Photocopy of this order be placed on Phot ced on the connected files. (AM (AMAN CHAUDHARY) JUDGE 03.05.2025 ashok Whether sp Whether re ther speaking/reasoned ther reportable : : Yes / No Yes / No ASHOK KUMAR 2025.05.05 09:59 I attest to the accuracy and integrity of this document
Arguments
HON'BLE MR. JUSTICE AMAN MAN CHAUDHARY ***** Mr. Sonu Bhatia, Advocate for Present : Mr. S Mr. Surmukh Singh, Advocate Mr. S for the petitioner in CWP-21338-201 for th 2010. None for the petitioner in CWP-1782 None 17822-2005. Ms. A Ms. Aruna Sachdeva, Advocate for the petitioner in CWP-17342-200 for th 2005. Ms. Shruti, AAG, Punjab. Ms. S **** AMAN CHAUD AUDHARY, J. (ORAL) 1. These cases involve similar issues a Thes sues and therefore, are being dispose isposed of together and fo for the sake of brevity, the facts ar 17342- facts are being taken from CWP-17342 2005. 2. Prayer made in the present petition Pray etitions is for quashing the letter date r dated 03.10.2005 by wh by which pay of the petitioner was red as reduced and recovery ordered. 3. The Division Bench while issuing The suing notice of motion on 07.11.200 .2005 had stayed the rec the recovery. 4. Learned counsel submits that the pet Lear the petitioner has been given placemen cement in C&V Cadre adre and thereafter benefit of two of two increments on acquiring th ing the Postgraduate qua te qualification as per Punjab Civil S ivil Services (Revised Scales of Pay of Pay) Rules, 1979, whic 9, which was withdrawn and pay was y was refixed and thereafter stepped u ped up ASHOK KUMAR 2025.05.05 09:59 I attest to the accuracy and integrity of this document CWP-17822-200 2005 (O&M) and connected cases cases - 2- equivalent to Am to Amir Chand, JST Teacher, howev however, later on finding it not to to be fixed correctly ac ctly according to Rules/Instructions da ons dated 28.10.1998, was re-fixed an xed and recovery ordered rdered. She, on instructions from the m the petitioner, restricts his prayer t rayer to only recovery ord ery ordered by relying on the Policy/ olicy/Instructions dated 20.01.2017 an and judgment passed assed by the Hon’ble Supreme Court Court in Jogeshwar Sahoo and other others vs. The District J strict Judge, Cuttack and others, SL , SLP (C) No(s). 5918-2024, decide decided on 04.04.2025, w wherein it has been held that the r t the recovery of excess emoluments o ents or allowances, disbu , disbursed as a consequence of an err e same, an erroneous computation of the same ought not to be to be affected, such indulgence being e being granted as an equitable relie relief, extended solely t olely to alleviate the hardship that mi hat might otherwise be caused by suc by such recovery, especia specially to those retired, the relevant p evant paras whereof read thus:- ality of to the whether were in without