Harbhajan Singh v. State of Punjab & Ors.

Mr. O.P. Gabba, Advocate, for the petitioner. . . . AJAI LAMBA, J (Oral)

1. This petition under Article 226 of the Constitution of India has been filed praying for issuance of a writ in the nature of certio- rari quashing the action of the respondents in effecting recovery on account of wrong payment made to the petitioner of Dearness Allowance, payable on family pension.

2. It has been contended that an em- ployee of the respondent-State died in harness, whereupon family pension was sanctioned. Dearness Allowance on Family Pension was being paid. Sub- sequently, however, a family member came to be CWP No.15788 of 2010 [2] given appointment on compassionate grounds. It seems that on account of giving of employment on compassionate grounds, under instructions issued by the State of Punjab, Dearness Allowance is not payable on family pension. It is contended that despite such instructions, the Dearness Allowance on pension, continued to be paid to the peti- tioner.

3. Learned counsel for the petitioner has contended that, at this juncture, the Dear- ness Allowance paid on family pension is sought to be recovered/withdrawn by the respondents, which would not be permissible in law, in view of law settled by a Division Bench of this Court, while dealing with CWP 891 of 2003 (Mukhtiar Singh v. State of Punjab and others) decided on 20.1.2004.

5. Notice of motion. On the asking of the Court, Mr. B.S. Chahal, Deputy Advocate General, Punjab, accepts notice on behalf of respondent Nos.1 to 3; and Mr. C.S. Pasricha, Advocate, accepts no- tice on behalf of respondent No.4 (Punjab Na- tional Bank). Requisite number of copies of the writ petition have been handed over to learned counsel for the respondents in Court.

6. On request of learned counsel for the parties, the matter is taken up at this stage CWP No.15788 of 2010 [3] itself for final adjudication in view of the pe- culiar facts and circumstances of the case.

7. Learned counsel for the respondent- State contends that, indeed, the issue is covered by the judgment in Mukhtiar Singh's case (supra). It has been stated that the petitioner would be entitled to a limited relief. For prospective purposes, Dearness Allowance on family pension would not be payable. The respondents, however, cannot effect any recovery.

8. Learned counsel for the respondent- Bank contends that recovery has been effected by the Bank on behalf of the respondent-State and the money has been transmitted to the State. In such circumstances, a direction be issued only to the respondent-State to refund the amount.

9. Learned counsel for the respondent- State contends that instructions were issued to the Bank that on appointment of a member of the family on compassionate grounds, Dearness Allow- ance on family pension be not released. The in- structions, however, have not been followed and, therefore, at this stage, no such direction can be issued.

11. I have considered the issue. In Mukhtiar Singh's case (supra), the fol- lowing has been held by this Court:- CWP No.15788 of 2010 [4] “In so far as the first issue is concerned, the contro- versy in hand stands adjudicated upon the Apex Court in H.S.E.B. and Ors. Versus Azad Kaur (Civil Appeal No.5835 of 1998, decided on 18.8.1999). In view of the determination of the Apex Court on the issue under reference, we are satisfied that the claim of the petitioners for dearness allowance on family pension is misconceived. The first contention of the petitioner is, therefore, not ac- cepted. The second issue relates to the recovery of dearness allowance wrongfully paid to the petitioners. It is not a matter of dispute between the parties that the payment of dearness allowance to the petitioners was not based on any misrepresentation at their hands. It is clear that dearness allowance was wrongfully paid to the petitioners by the re- spondents unilaterally. That being so, in view of the deci- sion rendered by the Apex Court in Sahib Ram Versus The State of Haryana and others, 1994(5) SLR 753, we are sat- isfied that the recovery should not be effected from the pe- titioners. In view of the above, the instant writ petitions are dismissed in so far as the claim of the petitioners for dear- ness allowance on family pension is concerned, however, the prayer of the petitioners is allowed in respect of the re- covery sought to be made from them. In case any recovery has been made from the petitioners in the interregnum, the same shall be refunded to the petitioners within a period of four months from today. Disposed of in the aforesaid terms.”

12. In regard to the dispute raised be- tween the respondent-State and the respondent- Bank, in my considered opinion, grant of relief to the petitioner cannot be delayed. It is for the respondents to resolve their inter-se dis- putes. The respondent-Bank would have a right to raise the issue with the respondent-State in re- gard to the liability while taking course of ac- tion, as permissible in law. The petitioner, be- ing entitled to the relief claimed, the same can- CWP No.15788 of 2010 [5] not be delayed in view of the dispute between the respondents, as noticed above.

13. Accordingly, the petition is allowed in the same terms as in CWP 891 of 2003 (Mukhtiar Singh v. State of Punjab and others) decided on

20.1.2004, relevant portion whereof has been extracted above. It is directed that the respondents would have no right to effect recovery from the petitioner of the amount already paid as Dearness Allowance on family pension. Consequently, the amount, if any, recovered from the petitioner by way of deduction, in the interregnum period, shall be refunded by the respondents to the petitioner within four months of receipt of certified copy of this order. September 06, 2010 JUDGE (AJAI LAMBA) To be referred to the Reporters or not?

1. 2. Whether the judgment should be reported in the Digest?