IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No. 7271 of 2009
DATE OF DECISION : DECEMBER 16, 2009
PREM KUMAR
....... PETITIONER(S)
VERSUS
STATE OF PUNJAB & ORS.
.... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. MK Dogra, Advocate, for the petitioner(s).
Mr. BS Chahal, DAG, Punjab.
AJAI LAMBA, J. (Oral)
This order shall dispose of six petitions viz. CWP 7271 of
2009 (Prem Kumar v. State of Punjab and others), CWP 18656 of 2009
(Jeet Singh v. State of Punjab and others), CWP 18699 of 2009 (Kamal
Saroop v. State of Punjab and others), CWP 18705 of 2009 (Smt.Urmala
Kumari v. State of Punjab and others), CWP 18721 of 2009 (Manohar Lal
v. State of Punjab and others) and CWP 18746 of 2009 (Kapura Ram v.
State of Punjab and others), as common questions of law and fact are
involved.
Civil Writ Petition No. 7271 of 2009 2
For reference to facts, record of CWP 7271 of 2009 (Prem
Kumar v. State of Punjab and others) is being taken up.
This petition under Article 226 of the Constitution of India
has been filed praying for issuance of a writ in the nature of certiorari
quashing order dated 27.5.2008 (Annexure P-6), passed by respondent
No.3 (Executive Engineer, Electrical Division, Ranjit Sagar Dam,
Shahpur Kandi Township, Pathankot).
A perusal of order Annexure P-6 indicates that the pay of the
petitioner has been refixed while withdrawing the special increments
granted to him during the period the petitioner served in work-charge
capacity. The pay of the petitioner has, accordingly, been refixed and
consequently, recovery has been ordered.
Learned counsel for the petitioner contends that the matter is
covered by the judgment of this Court dated 27.5.2009 rendered in CWP
5568 of 2008 (Charan Dass and others v. State of Punjab and others).
Learned counsel for the respondent-State contends that,
indeed, the petition is covered by the judgment rendered in the case of
Charan Dass (supra).
The relevant portion from the judgment rendered in the case
of Charan Dass (supra) 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
parties that the benefit of retrenchment increments and
Civil Writ Petition No. 7271 of 2009 3special 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
petitioners falls in category ii) wherein following
Civil Writ Petition No. 7271 of 2009 4observations 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
any fraud, misrepresentation, deception to obtain
Civil Writ Petition No. 7271 of 2009 5the 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.”
In view of the conceded position that the matter is covered by
by the judgment of this Court dated 27.5.2009 rendered in CWP 5568 of
2008 (Charan Dass and others v. State of Punjab and others), this petition
is allowed in the same terms.
December 16, 2009 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?