IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Civil Miscellaneous No.16881 of 2008 &
Civil Writ Petition No.11103 of 2007
Date of Decision: August 03, 2009
Neelam Marwaha & Others
.....PETITIONER(S)
VERSUS
State of Punjab & Others
.....RESPONDENT(S)
. . .
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: - Mr. Karamvir Singh, Advocate, for
the applicant-petitioners.
Mr. B.S. Chahal, Deputy Advocate
General, Punjab, for the
respondents.
. . .
AJAI LAMBA, J (Oral)
C.M. No.16881 of 2008
Issue notice of the application.
Mr. B.S. Chahal, Deputy Advocate
General, Punjab, accepts notice.
On request of learned counsel for
the parties, let the main writ petition itself be
taken up for final hearing.
C.W.P. No.11103 of 2007
In this petition filed under
Article 226/227 of the Constitution of India,
CWP No.11103 of 2007 [2]
petitioners (eight in number) pray for issuance
of a writ in the nature of certiorari, quashing
Order dated 17.1.2007 (Annexure P-1) whereby the
pay of the petitioners has been refixed after a
period of more than nine years and recovery of
various amounts from the petitioners has been
ordered to be effected.
Learned counsel for the
petitioners, at the very outset, contends that
the prayer of the petitioners is confined to
quashing of recovery only. There is no challenge
to the refixation itself.
Learned counsel for the petitioners has
argued that the case of the petitioners would be
covered under the judgment rendered by the
Hon’ble Full Bench of this Court in Civil Writ Petition
No.2799 of 2008 (Budh Ram & Others vs. State of Haryana &
Others), decided on 22.5.2009.
It has further been contended that the
petitioners had not actuated the pay fixation
initially. The petitioners have not played any
role in that regard.
Learned counsel for the respondents has
not been able to dispute the fact that there has
been neither any misrepresentation nor any fraud
played on behalf of the petitioners. Learned
counsel has further not been able to distinguish
CWP No.11103 of 2007 [3]
the judgment in Budh Ram’s case (supra).
I have considered the issue.
In Budh Ram’s case (supra), the following
three questions were framed for determination:-
i) Cases in which the benefits sought to be recovered from
the employees were granted to them on the basis of any
fraud, misrepresentation or any other act of deception;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;iii) Cases that do not fall in either one of the above two
categories but where the nature of the benefit and extent is
so unconnected with his service conditions that the
employee must be presumed to have known that the benefit
was flowing to him undeservedly because of a mistake by
the authority granting the same.For considering the claim of the
petitioner, consideration of question No.2 would
be relevant. Full Bench of this Court while
considering question No.2, extracted above, has
held in the following terms:-
“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
CWP No.11103 of 2007 [4]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 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.”
From the facts of the present case, it
is made out that the petitioner had neither
played any fraud nor had misrepresented the
facts.
In view of the above, this petition is
allowed in terms of judgment rendered by the
Hon’ble Full Bench of this Court in Civil Writ Petition
No.2799 of 2008 (Budh Ram & Others vs. State of Haryana &
Others), decided on 22.5.2009.
(AJAI LAMBA)
August 03, 2009 JUDGE
avin
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?