Rama Behl v. Barjinder Singh

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. S.S. Behl, Advocate;Ms. Nidhi Garg, Advocate **** Mr. S.K. Arora, Advocate; Mr. Arihant Jain, Advocate; Mr. Surinder Garg, Advocate; Mr. R.D. Bawa, Advocate; Mr. Mehar Singh, Advocate; Mr. Harinder Sharma, Advocate; Mr. P.K. Goklaney, Advocate; Mr. V.K. Shukla, Advocate; Mr. Surmukh Singh; Advocate; Mr. R.K. Arora, Advocate Mr. J.S. Maanipur for the petitioners Ms. Charu Tuli, Sr. DAG, Punjab ***** SURYA KANT J. (ORAL) (1). This order shall dispose of CWPs No.19003, 19381, 19149, 19339, 19154, 19158, 19145, 19146, 19157 of 2007; Nos.15408, 16241, 18078, 17155 of 2009; Nos.1442, 1963, 3019, CWP No.19003 of 2007.doc - 6 – 2874, 2029, 1229, 408, 394 & 798 of 2010 as the petitioners who served the Education Department, Government of Punjab as Teachers/ Masters/Head Masters/Lecturers etc. have raised common questions of law and facts in these cases. For brevity, the facts are being extracted from CWP No.19003 of 2007. (2). The petitioner joined the Education Department, Punjab, initially as a Teacher and was later on promoted as Lecturer. The petitioner who was possessing Post-graduation qualification, claimed and was granted 2/3 additional increments which were admissible to the Teachers possessing higher educational qualifications in terms of the Government instructions. These increments were claimed w.e.f. 01.01.1978. It appears that while the similarly-situated Lecturers were granted the benefit of additional increments, the petitioner was denied the same for no tangible reason(s). As a result thereto, the juniors of the petitioner started getting higher pay/emoluments. (3). The petitioner along with some of her colleagues approached this Court by way of CWP No.17942 of 1997 and pursuant to the directions issued therein, it is averred that her pay was Stepped-up CWP No.19003 of 2007.doc - 7 – and brought at par with her juniors. The petitioner continued to draw the said stepped-up pay till her retirement on attaining the age of superannuation on 30th April, 2005. (4). The respondents have now taken the impugned action, whereby, the above-referred benefit of Stepping-up of her pay has been withdrawn retrospectively w.e.f. 2nd January, 1978 and consequential recovery is sought to be effected from the petitioner after her retirement. (5). While restricting her challenge qua the ‘recovery’ only, the petitioner’s case is that she never misrepresented the facts nor played any fraud or used deceptive means to secure any monetary gain for herself, therefore, even if her pay was erroneously stepped-up contrary Rules/Instructions, no recovery of the resultant emoluments already drawn by her can be effected. (6). The respondents have not filed any counter- reply/affidavit and are unable to admit or deny as to whether or not the petitioner misled the authorities to Step-up her pay and bring it at par with her alleged juniors. (7). At the same time and in the absence of any material to the contrary, the petitioner appears to CWP No.19003 of 2007.doc - 8 – 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. (8). 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 CWP No.19003 of 2007.doc - 9 – 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 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.” CWP No.19003 of 2007.doc - 10 – (9). 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 her pay w.e.f. 01.01.1978 is hereby quashed. However, the impugned order to the extent of re-fixation of her pay and consequential re-determination of the retiral benefits, is upheld. The recovery, if any, already made from the petitioner shall be refunded to her within a period of four months from the date of receipt of certified copy of this order. (10). Since the respondents have not filed any counter- reply/affidavit, it is clarified that if, on verification of the records, it is found that the petitioner had actually misrepresented the facts and/or had obtained the monetary benefit through fraud or deception, the respondents shall be at liberty to seek review of this order within a period of six months from the date of receipt of a certified copy of this order. Ordered accordingly. Dasti . (11). (12).

22.02.2010 (SURYA KANT) JUDGE CWP No.19003 of 2007.doc - 11 – vishal shonkar