Punjab-Haryana High Court
Harmesh Chand vs State Of Punjab & Others on 31 July, 2009
Author: Ajai Lamba
Bench: Ajai Lamba
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Date of Decision: July 31, 2009
1. Civil Writ Petition No.10240 of 2009
Harmesh Chand
.....PETITIONER(S)
VERSUS
State of Punjab & Others
.....RESPONDENT(S)
. . .
2. Civil Writ Petition No.9509 of 2009
Rameshwar
.....PETITIONER(S)
VERSUS
State of Punjab & Others
.....RESPONDENT(S)
. . .
3. Civil Writ Petition No.9973 of 2009
Gurdial Singh
.....PETITIONER(S)
VERSUS
State of Punjab & Others
.....RESPONDENT(S)
. . .
4. Civil Writ Petition No.9978 of 2009
Dharam Pal
.....PETITIONER(S)
VERSUS
State of Punjab & Others
.....RESPONDENT(S)
. . .
CWP No.10240 of 2009 [2]
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: - Mr. M.K. Dogra, Mr. Sanjeev
Pandit, Advocates, for the
petitioner(s).
Mr. B.S. Chahal, Deputy Advocate
General, Punjab, for the
respondents.
. . .
AJAI LAMBA, J (Oral)
These four petitions viz. Civil Writ Petition Nos.10240, 9509, 9973 and 9978 of 2009 have been filed in common factual background. Common questions of law are involved and therefore, these petitions are being disposed of vide a common order.
Facts have been taken from Civil Writ Petition No.10240 of 2009 titled `Harmesh Chand vs. State of Punjab & Others'.
The petition has been filed under Article 226/227 of the Constitution of India praying for issuance of a writ in the nature of certiorari, quashing Order dated 7.1.2008 (Annexure P-5) passed by respondent No.1 i.e. State of Punjab through the Secretary Irrigation, Punjab Civil Secretariat, Chandigarh and Order dated 18.1.2008 (Annexure P-6) passed by respondent No.5 i.e. Accountant General, Punjab (A & E), Sector 17-E, Chandigarh. Prayer has CWP No.10240 of 2009 [3] further been made for quashing order of refixation and reduction in basic pay with recovery.
Under Order dated 7.1.2008 (Annexure P-5), Government of Punjab, has directed Chief Engineer, Ranjit Sagar Dam, Shahpurkandi Township, Irrigation Department,
Punjab to take immediate action in those cases where pay of the employees is to be refixed.
Order dated 18.1.2008 (Annexure P-6) i.e. the other impugned order, issued by the Office of Financial Adviser & Chief Accounts Officer, Ranjit Sagar Dam & Shahpurkandi Dam projects, Shahpurkandi Township addressed to all the Executive Engineers, in consequence of Order dated 7.1.2008, Annexure P-5, directs taking immediate action to refix the pay of the concerned employees.
In the petition, it has been pleaded that the petitioner had been working as Work Mistri at Ranjit Sagar Dam, Shahpurkandi Township, Pathankot and retired on 31.12.2008 on attaining the age of superannuation. Initial appointment of the petitioner was on work charge basis in accordance with Departmental Financial Rules.
It has been pleaded in Para 3 of CWP No.10240 of 2009 [4] the petition that while working at Ranjit Sagar Dam project, the petitioner had to work under hazardous conditions. 300 employees working under the Project had lost their lives at the site. Considering the tough working conditions, the petitioner was granted five special increments and five retrenchee increments for his dedicated service and extra efforts that had to be put for early completion of the Project. Increments were granted in accordance with Rule 10.8 of Departmental Financial Rules, reproduced in the same para.
It has been pleaded that subsequently, as per policy of the Government, service of the petitioner was regularised vide Order dated 13.3.1996. The pay of the petitioner was fixed after protecting the last pay drawn as work charge employee. In this regard, reference has been made to Annexure P-1.
For the purposes of fixation of pay of the petitioner and other similarly situated persons in the regular cadre, a Committee was constituted. Final report was submitted by the Committee recommending that while fixing the pay, special increments, referred to above, may not be withdrawn, and be merged in the pay. The report was accepted by respondent No.2 i.e. Chief CWP No.10240 of 2009 [5] Engineer, Irrigation Works, Punjab, Ranjit Sagar Dam, Shahpurkandi Township, Pathankot, vide Order dated 22.11.1996 (Annexure P-3).
It has been argued on behalf of the petitioner that pay of the petitioner was protected as drawn at the time of regularisation and the basic pay was fixed including special increments as granted. It has further been highlighted that special increments were granted at the level of the employer and not on the request or intervention of the employees. The petitioner kept on getting the pay without any interruption till the date of superannuation i.e. 31.12.2008.
Respondent No.5 i.e. Accountant General, Punjab (A & E), Sector 17-E, Chandigarh, however, raised objection vide letter dated 5.8.2005 that special increments cannot be granted as the same are not permissible under the Civil Services Rules. Objection was taken that sanction of the Government was not taken. Respondent No.2 responded to the objections thereby clarifying that increments had been awarded under Rule 10.8 of the Departmental Financial Rules which were applicable to the petitioner who was then working on work charge basis. It was further clarified that notices were CWP No.10240 of 2009 [6] given only to the persons who were discharging duties involving hazard and had been working in tough conditions.
It has been pointed out that the explanation was not accepted. The matter was finally referred to the Council of Ministers. A decision was taken at that level that since special increments were granted to the deserving work charge employees, the same be allowed to continue to be drawn.
It has been contended that respondent No.1, dehors the above facts, passed impugned orders Annexure P-5 and P-6 that have been explained in earlier part of the order. It has been pleaded that the petitioner has not been given full retiral benefits till date from the date of retirement.
It has been pleaded that cases of similarly placed persons have been considered by this Court while dealing with Civil Writ Petition No.5568 of 2008 titled `Charan Dass & Others vs. State of Punjab & Others' decided on 27.5.2009.
Learned counsel for the respondents has not disputed that facts of the present case are similar to the ones involved in Charan Dass's case (supra). Learned counsel has further not been CWP No.10240 of 2009 [7] able to distinguish the said judgment.
I have considered the issue.
In Charan Dass's case (supra), after considering the arguments, the following has been held:-
"It is admitted case of the parties that the work charge period is to be counted as qualifying period for the grant of pensionary benefits and thus the emoluments drawn by the employee as work charge employee had to be considered as also the period when the employee served in work charge capacity. It is admitted case of the parties that the benefit of retrenchment increments and special increments was granted to the employees during the period they were serving in work charge capacity without any misrepresentation or fraud on their part. The benefit allowed to the petitioners is, however, sought to be withdrawn after take over and regularisation by the State Government with effect from 13.3.1996. The retrenchment increments were allowed to bring their salary and emoluments at par with other employees in the revised pay scale, keeping in view their last drawn salary as retrenchees. No reasons have been given in the reply as to how such benefit is impermissible or illegal. The State, however, has attempted to justify its action regarding withdrawal of special and retrenchment increments. Admittedly, special increments were granted from time to time to some of the employees/petitioners for their alleged good work. There was no uniform policy and benefit of special increments was given on selective basis. In so far as the retrenchment increments are concerned, there cannot be any second opinion that the benefit was granted to bring their wages at par under the revised pay scale and that too before their take over by the State Government.
As regards the grant of special increments is concerned, it was selectively granted from person to person and is not justified. However, one fact remains common in regard to grant of both the benefits i.e. retrenchment increments and special increments that the said benefits were conferred upon the petitioners without any misrepresentation or fraud on their part. The issue is squarely covered by the Full Bench judgment of this Court passed in CWP No.2799 of 2008 alongwith other connected matters (Budh Ram and others vs. State of Haryana and others) decided on 22.5.2009. The case of the petitioners falls in category ii) wherein following observations have been made:-
"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 CWP No.10240 of 2009 [8] 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......
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...."
In view of the above, the respondents are not entitled to effect any recovery from the petitioners either on account of retrenchment increments or special increments allegedly erroneously given. However, the respondents are entitled to re-fix the emoluments by reducing the special increment only. Consequently the pay of the petitioners will be re- fixed and in case of those employees who have already retired from service, the retiral benefits shall be released within a period of two months. The petitioners shall also be entitled to interest on the delayed payment of pension/retiral benefits at the statutory rate wherever admissible and at the rate of 6% on pension and other retiral benefits where statutory interest is not provided for. Any amount deducted from the retiral benefits or the salary of the petitioners shall be refunded within the aforesaid period.
Ordered accordingly. Disposed of. A copy of this judgment be placed on record on each concerned file."
CWP No.10240 of 2009 [9]Since the issue is covered by the judgment rendered in Charan Dass's case (supra), these petitions are decided in the same terms.
(AJAI LAMBA)
July 31, 2009 JUDGE
avin
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?