IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No. 15336 of 2006
DATE OF DECISION : AUGUST 10, 2009
KULWANT SINGH & ORS.
....... PETITIONER(S)
VERSUS
STATE OF PUNJAB & ORS.
.... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. NS Kandhola, Advocate, for the petitioner(s).
Mr. BS Chahal, DAG, Punjab.
AJAI LAMBA, J. (Oral)
CM 11688 of 2009
The prayer made in the application is for fixing an actual date
of hearing in the main writ petition.
Notice of the application.
On the asking of the Court, Shri B.S. Chahal, Deputy Advocate
General, Punjab, accepts notice on behalf of the respondents.
Heard.
Civil Writ Petition No. 15336 of 2006 2
The application is allowed.
On the request of learned counsel for the parties, the main
writ petition is taken up for hearing.
CWP 15336 of 2006
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 of excess payment made to the
petitioners.
It has been pleaded in the petition that the petitioners were
appointed as Constables in the Police Department and were promoted to
the rank of Sub Inspectors, in due course of time. The Government issued
instructions on 21.6.1990 for removal of anomaly by stepping up the pay
of senior Government employees drawing pay less than their juniors. The
pay of the senior employees was to be stepped-up to bring it at par with
that of their juniors. Similar other instructions were passed on 17.11.1993
to clarify the same issue.
It has been pleaded that the respondents granted the benefit to
the petitioners, keeping in view instructions dated 17.11.1993.
Subsequently, however, it seems that an audit objection was raised. Show
cause notice was not issued to the petitioners, however, the respondents
issued directions to the Accounts Branch to effect recovery from the
petitioners at the rate of Rs.1,000/- per month.
Learned counsel for the petitioners has impressed on the
court that neither the pay was fixed by the respondents on any
misrepresentation made on behalf of the petitioners nor on account of any
Civil Writ Petition No. 15336 of 2006 3
fraud played by them. In this view of the matter, learned counsel for the
petitioners contends that the recovery cannot be effected. The amount
recovered from the petitioners is required to be refunded to them.
Learned counsel for the respondent-State has not been able to
draw the attention of the Court to any document or material that would
indicate that the petitioners had actuated fixation of pay or grant of benefit
to the petitioners. Learned counsel for the respondent-State has further
not been able to place reliance on any material that would indicate
misrepresentation or fraud having been played by the petitioners.
In view of the above, I find that the claim of the petitioners is
covered by Full Bench judgment of this Court in CWP 2799 of 2008
(Budh Ram and others v. state of Haryana and others) decided on
22.5.2009. In Budh Ram’s case (supra), the second question for
determination was as under:-
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;”
While considering the aforesaid question, the following
has been held:-
“It is in the light of the above pronouncement,
no longer open to the authorities granting the
benefits, no matter erroneously, to contend that
Civil Writ Petition No. 15336 of 2006 4even 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 additional benefit is only temporary
and would be recovered back from them, they would
Civil Writ Petition No. 15336 of 2006 5not 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.”
Considering the law laid down by this Court in Budh Ram’s
case (supra), the petition is allowed.
It is directed that the respondents would not effect any
recovery from the petitioners. As a corollary, it is further directed that the
recovery already effected from the petitioners shall be refunded to the
petitioners. The needful be done within four months of receipt of a copy
of this order.
August 10, 2009 ( AJAI LAMBA ) Kang JUDGE
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?