IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 13125 of 2009
DATE OF DECISION: August 26, 2009
Balbir Kaur and Another .........PETITIONER(S)
VERSUS
State of Punjab and Others ......RESPONDENT(S)
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
Present: Mr. A.K. Walia, Advocate,
for the petitioners.
AJAI LAMBA, J. (ORAL)
The petition has been filed by surviving spouse in challenge to the
action of the respondents whereunder a recovery of dearness allowance paid
on family pension is being effected.
The respondent-State has passed instructions to the effect that in
cases wherein appointment on compassionate grounds has been given to a
member of the family, dearness allowance is not payable on family pension
to the surviving spouse. The allowance was paid in the case of the
petitioner(s). Subsequently, however, after coming to know about the fact,
recovery is being effected. Hence, the petition.
Learned counsel appearing for the petitioner(s) contends that the
matter is covered by judgment rendered by Division Bench in CWP No. 891
of 2003 titled Mukhtiar Singh and Others Vs. The State of Punjab and
Others decided on 20.02.2004.
In regard to recovery, learned counsel has placed reliance on Full
C.W.P. No. 13125 of 2009 -2-
Bench judgment of this Court dated 22.05.2009 rendered in Budh Ram
and Others vs. State of Haryana and Others bearing, CWP No. 2799 of
2008.
Notice of motion.
On the request of the Court, Sh. B.S. Chahal, DAG, Punjab
accepts notice.
Heard.
Learned counsel for the respondent has not been able to
distinguish the judgment rendered in Mukhtiar Singh’s case (supra).
Learned counsel has rather pointed out that the State of Punjab had gone up
in appeal in the Hon’ble Supreme Court of India. The appeal has been
dismissed and, therefore, the judgment rendered in Mukhtiar Singh’s case
has attained finality.
Having considered the facts and circumstances given out above, I
am of the opinion that the respondents cannot effect recovery in view of
Mukhtiar Singh’s case (supra), wherein the following has been held:-
“Insofar as the first issue is concerned, the controversy
in hand stands adjudicated upon by the Apex Court in H.S.E.B.
And Ors. Versus Azad Klaur (Civil Appeal No. 5835 of 1998,
decided on 18.8.1999). In view of the determination of the Apex
Court on the issue under reference, we are satisfied that the claim
of the petitioners for dearness allowance on family pension is
misconceived. The first contention of the petitioner is, therefore,
not accepted.
The second issue relates to the recovery of dearness
C.W.P. No. 13125 of 2009 -3-allowance wrongfully paid to the petitioners. It is not a matter of
dispute between the parties that the payment of dearness
allowance to the petitioners was not based on any
misrepresentation at their hands. It is clear that dearness
allowance was wrongfully paid to the petitioners by the
respondents unilaterally. That being so, in view of the decision
rendered by the Apex Court in Sahib Ram Versus The State of
Haryana and Others, 1994 (5) SLR 753, we are satisfied that the
recovery should not be effected from the petitioners.
In view of the above, the instant writ petitions are
dismissed insofar as the claim of the petitioners for dearness
allowance on family pension is concerned, however, the prayer of
the petitioners is allowed in respect of the recovery sought to be
made from them. In case any recovery has been made from the
petitioners in the interregnum, the same shall be refunded to the
petitioners within a period of four months from today.
Disposed of in the aforesaid terms.”
In Budh Ram’s case (supra), while considering the second
question for determination viz.:- “ii) Cases in which the benefits sought
to be recovered were granted on the basis of a bonafide mistake committed
by the authority granting the same while applying or interpreting a
provision contained in the service rule, regulation or any other memo or
circular authorizing such grant regardless whether or not grant of benefits
involved the performance of higher or more onerous duties by the employee
concerned;”, the following has been held:-
C.W.P. No. 13125 of 2009 -4-
“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, inquitable 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
C.W.P. No. 13125 of 2009 -5-
the benefit not been extended to him. The employees can well
argue that if it was known to them that the 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.”
Resultantly, the petition is allowed.
The respondents are directed to refund the amount recovered`
from the petitioner(s) within four months of receipt of certified copy of the
order.
26.08.2009 (AJAI LAMBA) shivani JUDGE 1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the Digest?