Punjab-Haryana High Court
Karnail Singh vs State Of Punjab And Anr. on 14 January, 2003
Equivalent citations: (2003)IILLJ709P&H, (2003)133PLR483
Author: S.S. Nijjar
Bench: S.S. Nijjar, Hemant Gupta
JUDGMENT S.S. Nijjar, J.
1. In this writ petition under Articles 226/227 of the Constitution of India, a prayer has been made for the issuance of a writ in the nature of Certiorari quashing the order dated 12.3.2001 passed by respondent no.2, Executive Engineer, Concrete Production Division, Ranjit Sagar Dam, Shahpur Kandi, Tehsil Pathankot, District Gurdaspur directing the recovery of a sum of Rs. 1,33,553.00 on account of inadvertent grant of retrenchee increment in the year 1987. The petitioner also seeks a further direction for the issuance of a writ in the nature of Mandamus directing the respondents to release the monetary benefits in the sum of Rs. 94,934.00 withheld by the respondents with a further direction to the petitioner to deposit an amount of Rs. 38,619.00 with the respondents. The petitioner also seeks a direction to the respondents to release the retiral benefits to which the petitioner is entitled by way of gratuity, leave encashment and arrears of pay alongwith interest at the rate of 18 per cent per annum.
2. Having been retrenched from the BSL Project, Sundernagar, Himachal Pradesh, the petitioner was given provisional appointment and regular appointment subject to the approval by the competent authority on 30.8.1981. Thereafter, he was appointed in the pay scale of Rs. 510 as Assistant Foreman Special (Dumper Operation). He was allowed the higher salary of Rs. 640. The petitioner served under respondent No. 2. Executive Engineer, Concrete Production Division, Ranjit Sagar Dam, Shahpur Kandi, Tehsil Pathankot, District Gurdaspur from April 6, 1981 to February 28, 1998. He retired as Assistant Foreman Special Grade-I on superannuation at the age of 60 years. In the discharge certificate, it is mentioned that during his entire service, the work and conduct of the petitioner remained very good. No Demand Certificate was issued to the petitioner signed by the competent authority. The petitioner even vacated the government quarter which had been allotted to him w.e.f. 1981 on 4.3.1998. On 13.11.1998, an office order was issued directing all the Executive Engineers to settle the retirement benefits of the retirees with pension gratuity, leave encashment, G1S and GPF within a week positively. The petitioner was entitled to payment of gratuity and leave encashment for 95 days at the time of retirement. He was also entitled to arrears on account of revision of pay scale w.e.f. 1.1.1996 on account of enhancement of project allowance. The petitioner made number of applications for release of retirement benefits. Since there was undue delay in finalising the claim of the petitioner, he served a legal notice on respondent no.2. When the claim was stilt not settled, the petitioner was constrained to file CWP No. 17620 of 1999. After the court had issued notice of motion in the aforesaid writ petition, respondent No. 2 served a notice on the petitioner dated 22.2.2000 intimating that the petitioner had drawn excess increments which normally were not admissible to him. Excess amount of Rs. 1,33,553.00 is recoverable from him. The petitioner gave reply to the show cause notice and stated that the show cause notice is a counter-blast to the writ petition. He also stated that the notice is wholly vague. Ultimately, the writ was referred to the Lok Adalat. On 15.12.2000, the Lok Adalat directed the respondents to serve a fresh detailed show cause notice on the petitioner. They were also directed to provide adequate opportunity to the petitioner with liberty to consult the relevant record to sub-mil his reply to each specific item of recovery. Thereafter, fresh show cause notice was issued to the petitioner on 1.2.2001. The petitioner submitted a detailed reply. Again by order dated 13.3.2001, the petitioner has been informed of the recovery as mentioned in the earlier part of this order. By letter dated 27.11,1981, work-charge retrenched employees of Beas Project were given retrenchee increments. The petitioner was given the benefit of the retrenchee increments on the basis of the orders passed by the competent authority.
3. In the written statement, filed by respondents No. 1 and 2, the averments made by the petitioner have been controverted. It is settled that on the basis of the letter dated 27.11.1981, one increment for two completed years of service rendered in the rank in which the retrenched employee was last employed was to be given subject to a maximum 7 increments. It was also provided that the pay fixed plus the other emoluments should not exceed the maximum emoluments drawn by retrenchee in the corresponding scale of last appointment. The petitioner was recruited as A.F.S. (Dumper Operator) in the scale of Rs. 510-940. At the time of retrenchment, the petitioner was drawing Rs. 50). On re-employment, his pay was fixed at Rs. 534 which was more than what he was drawing earlier. After two months, he was recruited in the scale of Rs. 510-940. The petitioner was inadvertently granted 8 increments during 10/81 and again 7 increments during 9/87 on account of retrenchee increment benefit for which he was actually not entitled. On 28.12.1999, Principal Secretary, Irrigation and Power, Punjab issued instructions to recover about Rs. 6.48 crores from the retrenchee employee of Ranjit Sagar Dam who had been given the increments over and above to which they were actually entitled. Therefore, the petitioner was liable to pay a sum of Rs. 1,33,553.00 maximum of 7 increments.
4. We have heard the learned counsel for the petitioner at length and perused the paper book.
5. It is submitted by the learned counsel for the petitioner that order, Annexure P-13 is illegal and arbitrary. The petitioner has neither misrepresented nor mis-stated the fact nor concealed any material facts from the respondent-department. The respondents have admitted that the petitioner had been granted the increments inadvertently. The alleged excess payment cannot be recovered as the petitioner is not guilty of any fraud which has resulted in the alleged excess payment.
6. On the other hand, learned counsel for the State of Punjab has submitted that the petitioner had been over-paid without any authority of law. Even if the petitioner had not played any fraud or made any mis-representation, he would be still liable to repay the amount paid to him in excess.
7. We have anxiously considered the submissions made by the learned counsel for the parties. The petitioner has not made any mis-representation with regard to the fixation of pay, nor has he played any fraud on the department for release of the increments. It has been admitted by the department that excess amount had been paid due to the mistake committed by the competent authorities. The petitioner had retired from service with certificate that the conduct during service was very good. At the time of retirement, he was also issued a No Demand Certificate. A perusal of the order dated 29.12.1999 shows that the recovery had been directed to be made from employees who had been over-paid due to the wrong fixation of pay by the respondents. Therefore, it was directed that immediate action be taken to correct the fixation of pay and to see that recoveries are commenced. In the order, it is also clearly mentioned that if some employees had retired/died or otherwise left the service, it may not be possible to make recovery from them. In their cases, responsibility for the loss should be fixed and recoveries be effected from the Officers at fault. This direction is perhaps the only reason for the issuance of recovery notice against the petitioner who is otherwise wholly faultless. Respondent No. 2 is trying to avoid the responsibility by effecting the recovery from the concerned officers. In similar circumstances, the Supreme Court and the High Courts have held that the retired employees cannot be made to face recoveries of the excess payment for which they are not responsible. In the absence of fraud or mis-representation, the amounts already paid to the employee cannot be recovered. This view of ours finds support from a Division Bench judgment of this Court in the case of Ved Kumar and Ors. v. The State of Punjab and Ors. 2001(1) S.L.R. 464. In the aforesaid judgment, it has been held as under:-
"3. No material has been placed before us to show any misrepresentation or fault on the part of the petitioners for the alleged excess payment. Since the petitioners have retired from service, for no fault on their part, no part of the gratuity could be withheld.
4. The question involved in the writ petition is squarely covered by the decisions of this Court in CWP No. 1141 of 1997 (Jagjit Singh v. Punjab State and Ors.) decided on April 11, 1997 and CWP No. 16258 of 1996 (S.D. Taneja v. State of Haryana, decided on April 1, 1997.
5. The action of the respondents in recovering/withholding payment of the said amount of gratuity is hereby set aside. The respondents are directed to pay the balance amount of gratuity to each of the petitioners within eight weeks from the date when certified copy of this order is made available. In case of delay, the balance payment shall be made with interest at the rate of 10% per annum upto the date of actual payment."
8. Similarly, in the case of Sahib Ram v. The State of Haryana and Ors., 1994(5) S.L.R. 753 the Supreme Court held 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 mis-representation 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...."
9. Similarly, in the case of Gabriel Saver Fernandez v. State of Karnataka, 1995(2) R.S.J. 92, the Supreme Court was dealing with the case where the appellants had already been paid the pay scale to which they were not entitled and had retired. It was observed that "it would be appropriate that the Government may not recover from them the salary, which they had already received though they were not eligible to the scale of pay of Rs. 90-200".
10. Again in the case of Union of India and Anr. v. R. Sarangapani and Ors., 2000 Supreme Court Cases (L&S) 647, the retired persons were spared from recovery of excess payment. The Supreme Court observed as follows:-
"24. But there is one exception to this direction for recovery. In case where any of these employees of the technical branch have received the benefit of the increment because of the judgment which we have now set aside, in case they have retired as of today, no recovery will be made from their retiral benefits on the basis of the judgment which we have pronounced today."
11. Keeping in view the entire facts and circumstances set out by the parties, we are of the considered opinion that order, Annexure P-13 dated 12.3.2001 cannot be sustained.
12. Consequently, the writ petition is allowed. Order, Annexure P-13 dated 12.3,2001 is hereby quashed and set aside. The respondents are directed to release the gratuity, leave encashment and arrears of pay of the petitioner within a period of two months of the receipt of a certified copy of this order.
Sd/-
Hemant Gupta, J.