Balbir Chand v. Hem Raj

HON’BLE MR.JUSTICE SURYA KANT ****

1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. R.K. Arora; Mr. D.K. Singhal; Advocates for the petitioner(s) **** Ms. Charu Tuli, Sr. DAG, Punjab ***** SURYA KANT J. (ORAL) (1). This order shall dispose of CWPs No.10104, 14752 & 14756 of 2009 as common questions of law and facts CWP No.10104 of 2009.doc - 2 – are involved in both cases. For brevity, the facts are being extracted from CWP No.10104 of 2009. (2). The petitioner joined as Clerk in the Department of Health and Family Welfare, Government of Punjab on

14.02.1977. He retired on 31.03.2009 on attaining the age of superannuation from the respondent- Department. He is aggrieved at the impugned action of the respondents, whereby, the benefit of Proficiency Step-up granted on completion of 18/24 years of service, has been withdrawn vide memo dated

26.03.2009 and 22.05.2009 (Annexure P3 & P4, respectively) and seek quashing thereof. He further seeks quashing of the order dated 08.06.2009 (Annexure P5), whereby, a sum of Rs.74429/- has been ordered to be recovered from him. (3). While restricting his challenge qua the ‘recovery’ only, the petitioner’s case is that he never misrepresented the facts nor played any fraud or used deceptive means to secure any monetary gain for himself, therefore, even if the action of pay fixation was erroneous or contrary to Rules/Instructions, no recovery of the resultant emoluments already paid to him can be effected retrospectively. (4). Notice of motion was issued and pursuant thereto, the respondents have filed their counter-reply/affidavit in CWP No.10104 of 2009.doc - 3 – which nowhere it is alleged that the petitioner misled the authorities or played any fraud or deception to secure the undeserving monetary benefit(s). (5). The petitioner appears to be justified in relying upon a Full Bench decision of this Court in Budh Ram & Others vs. State of Haryana & Others (CWP No.2799 of 2008 decided on 22.05.2009) wherein it is ruled that the employee who was not guilty of misrepresentation, fraud or deception while receiving any monetary gain under the mistake of the functionary of the State Government, deserves to be dealt with independently and cannot be called upon to refund to the Government the undeserved payment that he/she has already received. (6). In such like cases, the Full Bench concluded that :- “It is in the light of the above pronouncement, no longer open to the authorities granting the benefits, no matter erroneously, to contend that even when the employee concerned was not at fault and was not in any way responsible for the mistake committed by the authorities, they are entitled to recover the benefit that has been received by the employee on the basis of any such erroneous grant. We say so primarily because if the employee is not responsible for the erroneous grant of benefit to him/her, it would induce in him the belief that the same was indeed due and payable. Acting on that belief the employee would, as any other person placed in his position arrange his affairs accordingly which he may not have done if he had known that the benefit being granted to him is likely to be withdrawn at any subsequent point of time on what may be then said to be the correct interpretation and application of rules. Having induced that belief in the employee CWP No.10104 of 2009.doc - 4 – and made him change his position and arrange his affairs in a manner that he would not otherwise have done, it would be unfair, inequitable and harsh for the Government to direct recovery of the excess amount simply because on a true and correct interpretation of the rules, such a benefit was not due. It does not require much imagination to say that additional monetary benefits going to an employee may not always result in accumulation of his resources and savings. Such a benefit may often be utilized on smaller luxuries of life which the employee and his family may not have been able to afford had the benefit not been extended to him. The employees can well argue that if it was known to them that the additional benefit is only temporary and would be recovered back from them, they would not have committed themselves to any additional expenditure in their daily affairs and would have cut their coat according to their cloth. We have, therefore, no hesitation in holding that in case the employees who are recipient of the benefits extended to them on an erroneous interpretation or application of any rule, regulation, circular and instructions have not in any way contributed to such erroneous interpretation nor have they committed any fraud, misrepresentation, deception to obtain the grant of such benefit, the benefit so extended may be stopped for the future, but the amount already paid to the employees cannot be recovered from them.” (7). For the reasons assigned in Budh Ram’s case (supra), the writ petition is allowed in part; the action of the respondents in ordering recovery of the excess payment received by the petitioner as a result of stepping-up of his pay is hereby quashed. However, the impugned order(s) to the extent of re-fixation of pay is upheld. The recovery, if any, already made from the petitioner(s) shall be refunded to him within CWP No.10104 of 2009.doc - 5 – a period of four months from the date of receipt of certified copy of this order. Ordered accordingly. Dasti . (8). (9).

04.03.2010 vishal shonkar (SURYA KANT) JUDGE