IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No. 13393 of 2009
DATE OF DECISION : AUGUST 31, 2009
SHIV RAM
....... PETITIONER(S)
VERSUS
STATE OF PUNJAB & ORS.
.... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. BK Bagri, Advocate, for the petitioner(s).
AJAI LAMBA, J. (Oral)
Notice of motion.
On the asking of the Court, Ms. Charu Tuli, Senior Deputy
Advocate General, Punjab, accepts notice on behalf of the respondents.
This petition under Articles 226/227 of the Constitution of
India has been filed praying for issuance of a writ in the nature of certiorari
quashing order of recovery dated 20.5.2008 (Annexure P-3). The prayer
further is to issue a writ in the nature of mandamus directing the
Civil Writ Petition No. 13393 of 2009 2
respondents to grant gratuity and leave encashment, withheld on account
of recovery from the retiral benefits of the petitioner.
It has been pleaded in the petition that the petitioner was
appointed in the Ranjit Sagar Dam project as Dumper Operator, on
25.3.1988. Certain special increments were granted to the petitioner in
view of hazardous work required for completion of Ranjit Sagar Dam,
within specified time, while the petitioner was serving on
adhoc/temporary/work-charge basis.
It has been pleaded that the issue has already been considered
by this Court in CWP 5568 of 2008 (Charan Dass and others v. State of
Punjab and others) decided on 27.5.2009.
It has also been pleaded that the recovery cannot be effected
in view of Full Bench judgment of this Court rendered in CWP 2799 of
2008 (Budh Ram and others v. State of Haryana and others) decided on
22.5.2009.
Learned counsel for the respondent-State has not been able to
distinguish the judgment rendered in the case of Charan Dass (supra).
Having heard the learned counsel for the parties, I am of the
opinion that the petition deserves to be allowed in terms of the judgment
rendered in the case of Charan Dass (supra), relevant portion whereof
reads as under:-
“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
Civil Writ Petition No. 13393 of 2009 3parties 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
Civil Writ Petition No. 13393 of 2009 4petitioners 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, regulation, circular and
instructions have not in any way contributed to such
erroneous interpretation nor have they committed
Civil Writ Petition No. 13393 of 2009 5any 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.”
The respondents have not placed any material on the record
to indicate that the petitioner had played any fraud or made
misrepresentation so as to actuate grant of special increments, while the
petitioner was serving on adhoc/temporary/work-charge basis.
In view of the above, this petition is allowed to the extent that
the respondents are not entitled to effect any recovery from the petitioner
on account of special/retrenchment increments erroneously given. The
respondents, however, are entitled to re-fix the emoluments by reducing
the special increment only. The pay of the petitioner will be re-fixed and,
Civil Writ Petition No. 13393 of 2009 6
accordingly, the retiral benefits would be released within two months of
receipt of certified copy of the order.
August 31, 2009 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?