IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Civil Writ Petition No.13495 of 2009
Date of Decision: September 01, 2009
Shiam Sunder
.....PETITIONER(S)
VERSUS
Secretary to Government of Punjab, Department of Irrigation,
Punjab Civil Secretariat, Chandigarh & Others
.....RESPONDENT(S)
. . .
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: - Mr. Vivek K. Thakur, Advocate,
for the petitioner.
Ms. Charu Tuli, Senior Deputy
Advocate General, Punjab, for the
respondents.
. . .
AJAI LAMBA, J (Oral)
Notice of motion.
Ms. Charu Tuli, Senior Deputy
Advocate General, Punjab, on the asking of the
Court, accepts notice on behalf of the
respondents.
Heard.
In this petition filed under Article 226/227 of the Constitution of India,
prayer is for issuance of a writ in the nature of
certiorari, Office Orders dated 23.3.2007
(Annexure P-1) and 1.8.2008 (Annexure P-2).
CWP No.13495 of 2009 [2] Challenge is also to letter dated 6.1.2009 (Annexure P-3, collectively). Prayer has also
been made for issuance of a writ in the nature of
mandamus directing the respondents not to effect
recovery from the pension of the petitioner.
It has been pleaded that the
petitioner was appointed as a Welder on 11.2.1986
and superannuated on 31.10.2002. During the
course of service of the petitioner, the
petitioner served at Ranjit Sagar Dam as work
charge employee. At that point in time, certain
special increments were given in view of exigency
of services and hazardous work done.
Under first impugned Order dated
23.3.2007 (Annexure P-1) which was issued about
five years after retirement of the petitioner, it
has been pointed out that special increments were
given to the petitioner while he was serving as
work charge employee. The said increments are
required to be withdrawn as the same were not
permissible under the letters and instructions
issued by the State of Punjab. Further, action
for recovery has been proposed after refixation
of the pay of the petitioner on withdrawal of
special increments.
Vide Order Annexure P-2, the Audit
& Accounts Department, vide Letter dated 1.8.2008
CWP No.13495 of 2009 [3]
directed that special increments are not to be
taken into account for the purpose of pay of
pensioner as the same had been withdrawn and
accordingly, the pay of the petitioner be refixed
after withdrawal of special increments. Annexure
P-2 further directed that the amount of over
payment on account of excess pay and allowances
be worked out.
Annexure P-3 dated 6.1.2009 stipulates that a sum of Rs.77,534/- is
recoverable which has been paid on account of
excess special increments and retrenchee
benefits.
It has been brought out that the
matter is covered by judgment of this Court,
dated 27.5.2009, rendered in Civil Writ Petition No.5568
of 2008 titled `Charan Dass & Others vs. State of Punjab &
Others’, wherein 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
CWP No.13495 of 2009 [4]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
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,
CWP No.13495 of 2009 [5]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.”
Learned counsel for the respondents
has not been able to distinguish the judgment
rendered in Charan Dass’s case (supra) which would have
application to the facts of the case as pleaded.
In view of the above, this petition
is allowed in terms of judgment of this Court,
dated 27.5.2009, rendered in Civil Writ Petition No.5568
of 2008 titled `Charan Dass & Others vs. State of Punjab &
Others’, portion whereof has been extracted above.
(AJAI LAMBA)
September 01, 2009 JUDGE
avin
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?