Punjab-Haryana High Court
Het Ram vs Pepsu Road Transport Corpn. And Ors. on 6 September, 2007
Equivalent citations: (2008)2PLR349, 2008 LAB. I. C. (NOC) 833 (P. & H.), 2008 (3) AJHAR (NOC) 990 (P. & H.)
JUDGMENT Permod Kohli, J.
1. The petitioner is aggrieved against the action of the respondents in effecting recovery from his gratuity and re-fixation of his salary after retirement.
2. The petitioner joined the service with the respondents on 23.3.1962 and retired on 31.3.1999 as Chief Inspector from Pepsu Road Transport Corporation Bathinda-I, on attaining the age of superannuation. He was informed vide letter dated 27.8.1999 by respondent No. 2 that a sum of Rs. 1,45,332/- is payable on account of death-cum-retirement gratuity. It is alleged that though this amount was found to be payable, he has actually been paid a sum of Rs. 1,20,583/- vide cheque dated 13.9.1999 and an amount of Rs. 24,749/- has been erroneously deducted from his gratuity. It is further alleged that the basic pay of the petitioner at the time of retirement was Rs. 7,440/- whereas his pension has been illegally commuted by reducing his basic pay from Rs. 7,440/- to Rs. 7,220/-. A representation dated 17.11.1999 (Annexure P-2) was preferred by the petitioner against the alleged illegal deduction and re-fixation of his basic pay. However, the same has not been responded to. He has accordingly approached this Court through the medium of this writ petition, seeking relief of payment of the deducted amount of gratuity with interest and re-fixation of his pension by taking into consideration the last drawn salary.
3. Respondent No. 1, the main contesting respondent, who was the employer of the petitioner has filed a written statement pleading therein that the basic salary of the petitioner was fixed at Rs. 186 as on 1.1.1978. A special increment of Rs. 24/- was given to the employees, including the petitioner by the Punjab Government who did not participate in the strike w.e.f. 8.2.1978. Later a clarification was made by the Government vide letter dated 5.7.1989 that the aforesaid special increment released in favour of such employees who did not participate in the strike, cannot be treated as normal increment for the purpose of Rule 4 of the Punjab Civil Services (Revised Pay) Rules, 1979 which, inter alia, deals with the grant of normal annual increment to the Government servant. It is accordingly stated that erroneously the special increment was added into the basic pay of the petitioner as on 8.2.1978 and his basic pay was fixed at Rs. 210/- instead of Rs. 186/-. Consequently the benefit of special increment continued to be received by the petitioner till the date of his retirement where upon his basic salary came to be made at Rs. 7,440/- which he was receiving at the time of his retirement whereas his basic pay at the time of his superannuation should have been Rs. 7,220/-. According to the respondents, this fact came to the notice of the respondents only after his retirement when his post retiral benefits were being fixed. It is accordingly mentioned that the petitioner has withdrawn an excess amount of Rs. 24,779/- which has been deducted from his gratuity and after deduction, he was paid balance amount of Rs. 1,20,583/-. It has been further mentioned by the respondents that the petitioner has been paid other retiral benefits like leave encashment and provident fund. His pension has also been fixed with basic salary at the time of retirement at Rs. 7,220/-, keeping in view his basic salary as Rs. 186/- as on 1.1.1978 and not as Rs. 210/- as on 8.2.1978.
4. I have heard the learned Counsel for the parties at length and perused the paper book.
5. The petitioner has challenged the action of the respondents, primarily on the ground that the deduction from the salary and re-fixation has been done at the back of the petitioner, after his superannuation, Without affording any opportunity of hearing. According to the petitioner, there has been violation of principles of natural justice and otherwise also, the action of the respondents is arbitrary and illegal.
6. In so far as the question of recovery from the emoluments of the petitioner after retirement is concerned, the issue is no more res integra, having been settled by the Supreme Court in the case of Sahib Ram v. State of Haryana 1995(1) S.C.T. 668 wherein it has been observed as under:
5. Admittedly, the appellant does not possess the required educational qualifications. Under the circumstances, the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of higher pay-scale was given to him, but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances, the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.
7. The aforesaid judgment has been followed by two Hon'ble Division Benches of this Court in the cases of Union Territory, Chandigarh Administration and Ors. v. Sudesh Rathore and Ors. 2004(1) R.S.J. 523 and Sudarshan Kumar Sood and Ors. v. Bhakra Beas Management Board, Chandigarh and Ors. 2006(1) R.S.J. 308. In the present case, the admitted case of the respondents is that special increment was given to those employees who did not participate in the strike. Thus it was the action of the respondents which benefited the petitioner and he never extracted, this benefit by any misrepresentation or fraudulent means. According to the respondents' own case, the benefit was given in the year 1978 whereas clarificatory instructions were issued on 5.7.1989. In view of this stand of the respondents, wrong fixation of basic pay of the petitioner cannot be attributed to him. Therefore, recovery made from the gratuity of the petitioner is not permissible and the petitioner is entitled to the refund pf Rs. 24,779/- wrongly deducted from his gratuity.
8. Insofar as the second grievance of the petitioner regarding re-fixation of the basic pay is concerned, the respondents found that the addition of special increment resulted in wrong fixation of the basic pay of the petitioner and they accordingly rectified the error and consequently re-fixed the basic pay at Rs. 7,220/- and resultantly commuted the pension. Admittedly, the petitioner was never put to notice at the time of re-fixation or making recovery. But the fact remains that the re-fixation is on account of rectification of the error. Even at this stage, the petitioner has not been able to show how rectification of error is contrary to rules, law or otherwise illegal in any manner. Therefore, the respondents are entitled to re-fix the basic pay and rectify the error. The issue is squarely covered by a judgment of the Apex Court in the case of P.H. Reddy v. N.T.R.D. 2002(2) S.C.T. 987 wherein it was held in paragraph 2 that employees, who had been in receipt of a higher amount on account of erroneous fixation, could not be required to reimburse the excess amount paid to them although the authority was well within its rights to correct the error- committed by it and to fix the pay of the employee in terms of his entitlement. The aforesaid judgment has been followed by a Hon'ble Division Bench of this Court in the case of Sudarshan Kumar Sood (supra)
9. It is contended on behalf of the. petitioner that some similarly situated employees whose basic pay was also erroneously fixed after retirement, have been granted the relief by restoring their basic pay drawn by them at the time of their superannuation and thus, the petitioner be also treated alike.
10. This submission also cannot be accepted for the simple reason that Article 14 of the Constitution of India cannot be applied in a negative sense. One erroneous order/action cannot be utilized to claim parity. Article 14 of the Constitution of India provided a positive concept and cannot be utilized to negate any law or rule or perpetuate illegality. The claim of the petitioner under Article 14 of the Constitution of India has, therefore, to be rejected. 1 am also of the considered opinion that a wrong benefit granted to some similarly situated persons cannot be permitted to be compounded by a direction of this Court.
11. This view of mine finds support from the law laid down by the Supreme Court in the case of Union of India and Ors. v. Rakesh Kumar wherein it has been held as under2o. Therefore, by erroneous interpretation of the rules, if pensionary benefits are granted to someone, it would not mean that the said mistake should be perpetuated by direction of the Court. It would be unjustifiable to submit that by appropriate writ, the Court should direct something which is contrary to the statutory rules. In such case, there is no question of application of Article 14 of the Constitution. No person can claim any right on the basis of decision which is dehors the statutory rules nor there can be any estoppel...."
12. This writ petition is accordingly allowed partly. The action of the respondents in effecting recovery is hereby quashed and the respondents are directed to refund the amount of Rs. 24,779/- to the petitioner. Since the recovery is found to be impermissible, the petitioner is also entitled to interest at the rate of 6% per annum. The amount recovered alongwith interest be paid to the petitioner within a period of three months from today.