C.W.P. No. 17587 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 17587 of 2009
DATE OF DECISION: November 17, 2009
Sital Dass .........PETITIONER(S)
VERSUS
State of Punjab and Others ......RESPONDENT(S)
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
Present: Mr. M.K. Dogra, Advocate,
for the petitioner.
AJAI LAMBA, J. (ORAL)
This order shall dispose of six civil writ petitions namely CWP
No. 17587 of 2009 titled Sital Dass Vs. State of Punjab and Others, CWP
No. 17589 of 2009 titled Jiwa Singh Vs. State of Punjab and Others, CWP
No. 17593 of 2009 titled Jagdish Ram Vs. State of Punjab and Others,
CWP No. 17596 of 2009 titled Ram Lal Vs. State of Punjab and Others,
CWP No. 17601 of 2009 titled Dewan Chand Vs. State of Punjab and
Others, CWP No. 17602 of 2009 titled Ganesh Dass Vs. State of Punjab
and Others, as common questions of facts and law are involved. For
reference to record, CWP No. 17587 of 2009 titled Sital Dass Vs. State of
Punjab and Others, is being taken up.
This petition has been filed under Article 226 of the Constitution
of India praying for issuance of a writ in the nature of certiorari quashing
C.W.P. No. 17587 of 2009 2
order Annexure P-5 dated 07.01.2008 and order Annexure P-6 dated
18.01.2008. Prayer is for quashing refixation of pay and reduction in basic
pay as also resultant recovery. Learned counsel contends that the case is
covered by decision of this Court dated 27.05.2009 rendered in CWP No.
5568 of 2008, Charan Dass and Others Vs. State of Punjab and Others.
Issue notice of motion.
On the asking of the Court, Sh. B.S. Chahal, DAG, Punjab,
accepts notice.
Heard.
It has been pleaded that the petitioner was working as a Fitter on
Ranjit Sagar Dam, Shahpur Kandi Township, Pathankot. The petitioner
retired on 28.02.2006 on attaining the age of superannuation. It has been
pleaded that the petitioner alongwith other employees had to work under
tough and hazardous conditions including putting life in danger. About 300
employees working on the project lost their lives in view of the tough
working conditions. Extra effort had to be put in for early completion of the
project. Considering the facts and circumstances, 5 special increments and
5 retrenchee increments were granted to the petitioner.
Services of the petitioner was regularized, since he had initially
been inducted in service on work charge basis. Pay of the petitioner was
fixed after protecting the last pay drawn as work charge employee.
Subsequently, a Committee was constituted to consider the fixation of pay.
It was recommended that the special increments granted earlier be not
withdrawn and pay merged in the pay. Report of the Committee was
accepted by respondent no. 2 i.e. Chief Engineer, Irrigation Works, Punjab,
Ranjit Sagar Dam, Shahpur Kandi Township, Pathankot. Necessary
C.W.P. No. 17587 of 2009 3
instructions were also issued in this regard.
Subsequently, objection was raised that special increments cannot
be granted to the petitioner as the same are not permissible under Punjab
Civil Service Rules. It was further pointed out that sanction of the
Government was not obtained before grant of increments. Response to the
objection was given by the Chief Engineer.
Be that as it may, vide impugned order Annexure P-5 dated
07.01.2008, direction has been issued to fix the pay of the petitioner after
withdrawing special increments. In pursuance to Annexure P-6, all the
Executive Engineers vide order dated 18.01.2008 have been asked to refix
the pay. Accordingly, recovery from the retiral benefits of the petitioner
has been effected.
Learned counsel states that this issue was raised before this Court
in Charan Dass’s case (supra)
Learned counsel for the respondent-State contends that indeed the
matter would be covered by judgment rendered in Charan Dass case (supra).
The relevant portion of the aforesaid judgment 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 special increments was
granted to the employees during the period they were serving
in work charge capacity without any misrepresentation or
C.W.P. No. 17587 of 2009 4
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
C.W.P. No. 17587 of 2009 5
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 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
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….”
In view of the above, the respondents are not entitled
to effect any recovery from the petitioners either on account of
C.W.P. No. 17587 of 2009 6
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 stand of the respondents that the issue is covered by
Charan Dass case (supra), this petition is allowed in terms and to the extent
of decision rendered by this Court in CWP No. 5568 of 2008, Charan Dass
and Others Vs. State of Punjab and Others dated 27.05.2009.
17.11.2009 (AJAI LAMBA) shivani JUDGE 1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the Digest?
C.W.P. No. 17587 of 2009 7