Darshana Devi v. Hari 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. Ashish Gupt a; Mr. Anupam Bhardwaj, **** Mr. Vijay Sharma; Mr. J.S. Bhandohla; Mr. N.S. Dadwal; Mr. P.K. Garg; Mr. Tribhawan Singla; Mr. Naveen Sharma; Mr. Vivek Thakur; Mr. S.K. Kamboj, Advocates for the petitioners Mr. B.S. Chahal, DAG Punjab ***** SURYA KANT J. (ORAL) (1). This order shall dispose of CWPs No.18184, 19116, 20007 of 2009; 100, 300, 468, 789, 1137, 2422, 2908 & 3069 of 2010 as common questions of law and facts are involved in these cases. All the petitioners are the serving/retired employees from the Department of Health and Family Welfare, Government of Punjab. In all these cases, recovery orders have been passed as a result of withdrawal of the benefit of ACP earlier CWP No.3069 of 2010.doc - 4 – granted to the petitioner(s). For brevity, the facts are being extracted from CWP No.3069 of 2010. (2). Notice of motion. Mr. B.S. Chahal, ld. DAG Punjab, who is present in Court, accepts notice on behalf of the respondents. (3). The petitioner joined the Health Department initially as a Staff Nurse and retired as Nursing Sister on attaining the age of superannuation on

30.04.2009. She seeks a mandamus directing the respondents to refund the amount of Rs.1,78,055/- recovered from her on account of erroneous grant of proficiency step-up. (4). The respondents have now taken the impugned action against the petitioner after 15 years of her retirement, whereby, the above-referred benefit of Stepping-up of her pay has been withdrawn retrospectively and consequential recovery has already been effected from her Gratuity. (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 the action of Stepping-up of her pay was erroneous or contrary to Rules/Instructions, no recovery of the resultant CWP No.3069 of 2010.doc - 5 – emoluments already paid to her can be effected retrospectively. (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 seek Step-up of her pay and bring at par with her alleged juniors. (7). At the same time and in the absence of any material to the contrary, the petitioner appear 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. (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 CWP No.3069 of 2010.doc - 6 – 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 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 CWP No.3069 of 2010.doc - 7 – 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.” (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 payments received by the petitioner(s) as a result of Stepping-up of her/their pay is hereby quashed. However, the impugned order(s) to the extent of re-fixation of her/their pay and/or consequential re-determination of the retiral benefits is upheld. The recovery, if any, already made from the petitioner(s) shall be refunded to her/them 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(s) had actually misrepresented the facts and/or had obtained the monetary benefits through fraud or CWP No.3069 of 2010.doc - 8 – 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 vishal shonkar (SURYA KANT) JUDGE