Punjab-Haryana High Court
The State Of Punjab And Others vs Nirmal Singh --Respondent on 30 May, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
RSA No.2326 of 2012 (O&M)
Date of Decision: 30.5.2012.
The State of Punjab and others --Appellants
Versus
Nirmal Singh --Respondent
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:- Mr. S.K. Bhanot, Addl. A.G., Punjab for the appellants.
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TEJINDER SINGH DHINDSA.J C.M. No. 6569-C of 2012 This is an application under Section 5 of the Limitation Act seeking condonation of delay of 113 days in filing the main appeal.
In view of the averments made in the application, which is duly supported by an affidavit of Amrinder Singh Malhi, Executive Engineer, Mechanical, Water Supply & Sanitation Division, Patiala, I find that sufficient case has been shown for condonation of the delay that has occurred.
In view of the above, application is allowed. Delay of 113 days in filing the present appeal is condoned.
RSA No. 2326 of 2012
Nirmal Singh, retired Sub Divisional Engineer, plaintiff filed a suit against the State of Punjab seeking a declaration against an order dated 1.3.2005 imposing a recovery of Rs.38,101/-. Such recovery had been ordered to be effected from the pension of the plaintiff. Plaintiff pleaded that he had retired from service while holding the post of Sub Divisional Engineer on 30.9.2003. After two years of his retirement the plaintiff had RSA No.2326 of 2012 (O&M) -2- been served with the impugned order dated 14.10.2005 imposing the recovery as mentioned herein above. No show cause notice had been issued prior to passing of the impugned order and accordingly, plaintiff pleaded that such order of recovery was totally illegal, null and void, having been passing in violation of the principles of natural justice and was as such unsustainable in the eyes of law.
Defendants contested the suit in terms of taking a stand that by virtue of wrong fixation of the pay, wherein an increment that was due on 1.7.1997 had in fact been granted w.e.f. 1.1.1997. It was stated that such mistake had been pointed out by the Deputy Controller (Finance & Accounts) in General Audit Branch (Revenue), Finance Department, Punjab and as such the department had been left with no other alternative but to effect the recovery of such amount that had been paid in excess. It was also stated that since the mistake was apparent on record, there was no purpose of issuing any show cause notice.
The Trial Court vide judgement and decree dated 1.6.2009 held the impugned order dated 14.10.2005, wherein recovery of Rs.38,101/- had been directed from the pension of the plaintiff to be null and void and was set aside. State of Punjab preferred a civil appeal and vide judgement dated 8.11.2011 the Additional District Judge, Patiala has dismissed the appeal thereby affirming the judgement and decree passed by the Trial Court. It is under such circumstances that the State of Punjab is in second appeal before this Court.
I have heard Mr. S.K. Bhanot, Addl. A.G., Punjab appearing for the appellants, State of Punjab at length.
RSA No.2326 of 2012 (O&M) -3-
It is not in dispute that the plaintiff-respondent, who stood retired from service upon attaining the age of superannuation on 30.9.2003 had been granted the benefit of an annual increment w.e.f. 1.1.1997 instead of July, 1997. There is also no dispute as regards the fact that towards such wrong fixation of pay and grant of increment there had been no misrepresentation on the part of the plaintiff-respondent by virtue of which an excess payment had been made in his favour.
The short controversy as such that is involved in the present second appeal is as to whether a monetary benefit having been granted to an employee on account of a genuine mistake at the hands of the department during the exercise of fixation of pay under the revised pay rules can be recovered in a situation, where the employee has not derived such benefit on account of any fraud or misrepresentation on his part.
Such precise question that has arisen for adjudication in the present second appeal already stands answered by a Full Bench judgement of this Court rendered in case of Budh Ram & others Vs. State of Haryana & others reported as 2009 (3) SCT 333, wherein it had been held in the following terms:-
"8. Reference may also be made to Union of India and another etc. etc. vs. M. Bhaskar and others etc. etc. 1996(3)RSJ 205, where too the Apex Court declined permission to recover the amount already paid to the employee on the ground that the same would cause hardship. In P.H.Reddy vs. N.T.R.D., 2002 (2) SCT 987, the court was dealing with a case where the salary of a defence pensioner was revised on re-employment against a civil post erroneously and a direction to recover the excess amount issued. The Supreme Court while upholding the correction of the error by the authorities declared that the demand for reimbursement of the excess amount could not be sustained.RSA No.2326 of 2012 (O&M) -4-
9. To the same effect are the decisions of the Supreme Court in Babulal Jain vs. State of M.P. and Others, 2007 (3)SCT 134, and State of Haryana and another Vs. Partap Singh and Others, 2007 (1) RSJ 6 and the decisions of the Division Bench of this Court in Sudarshan Kumar Sood and others Vs. Bhakra Beas Management Board, Chandigarh and others 2003(1) RSJ 308, Ajit Singh Vs. Managing Director, PEPSU Road Transport Corpn.
and another 2007(3) RSJ 83 and Union Territory Chandigarh Administration and others Vs. Sudesh Rathore and others 2004(1) RSJ 523.
10. 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 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 RSA No.2326 of 2012 (O&M) -5- 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."
In the light of the judgement in Budh Ram's case (supra), it is clear that in case of a wrong fixation of pay, it would always be open for the department concerned to rectify a mistake. However, in so far as the monetary benefit that has already flown to an employee cannot be recovered unless and until such employee had gained benefit on account of misrepresentation. In the facts of the present case the excess payment was made to the present respondent on account of a mistake by the department in an exercise of fixation of pay under the revised pay rules. The present respondent had not misled the department as regards the grant of annual increment w.e.f. 1.1.1997 instead of 1.7.1997. As such following the dictum laid down by the Hon'ble Full Bench in Budh Ram's case (supra) the impugned order of recovery dated 14.10.2005 clearly could not be sustained.
Accordingly, I find that the Trial Court has rightfully granted the declaration as against the impugned order dated 14.10.2005 and held the same to be illegal, null and void and the First Appellate Court has taken the RSA No.2326 of 2012 (O&M) -6- correct view in affirming the judgement and decree passed by the Trial Court. There is no basis to interfere with the impugned judgements and decrees passed by the courts below. No question of law much less a substantial question of law arises in the present second appeal. The appeal, accordingly, is dismissed.
Appeal dismissed.
(TEJINDER SINGH DHINDSA) JUDGE 30.5.2012.
lucky Whether to be reported? Yes.