IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.3137 of 2008
Date of decision: 7th August, 2009
Union of India and others
... Petitioners
Versus
Om Parkash Kapoor and another
... Respondents
CORAM: HON'BLE MR. JUSTICE T.S. THAKUR
HOB'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Ashwinie Kumar Bansal, Advocate for the petitioners.
Mr. Inderjit Kaushal, Advocate for respondent No.1.
Notes: 1. Whether Reporters of local newspapers may be allowed to see
the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
KANWALJIT SINGH AHLUWALIA, J.
Present Civil Writ Petition has been filed by Union of India and
two of its officials, namely, the Director General, Standardization, Testing &
Quality Certification, Department of Information & Technology and the
Director, Electronic Test Development Centre seeking quashing of the order
dated 13th December, 2007 passed by the Central Administrative Tribunal
(hereinafter referred to as, ‘the Tribunal’), wherein it was held that the
petitioner employers are not entitled to effect recovery of Rs.1,35,913/-, as
purportedly pay of the respondent employee was wrongly fixed at
Rs.12,375/- as on 1st January, 1996 instead of Rs.11,300/-, due to revision
of pay scale on the recommendation of the Vth Pay Commission.
Civil Writ Petition No. 3137 of 2008 2
It is not disputed that at the relevant time, respondent employee
was working as Scientist Engineer ‘SE’ and has now retired on 31st January,
2005. It is also not the case of the petitioner employers that there was any
misrepresentation, fraud or deceit practiced on the part of the respondent
employee. The Tribunal, in the impugned order, relied upon a judgment of
the Hon’ble Apex Court rendered in ‘Sahab Ram v. State of Haryana’ 1994
(5) SLR 753 and held that in this case the salary has been fixed due to
mistake on the part of the employer, recovery of the amount from a retiree
employee will cause great hardship and therefore, had quashed the order of
recovery, as the same was in violation of the principles of natural justice and
direction was given to refund the amount recovered from the leave salary of
the employee.
Before we advert to the facts of the case and issues raised in
the present petition, we are of the view that order of the Tribunal is to be
upheld, as the same is in consonance with the ratio of law laid by a Full
Bench of this Court in Civil Writ Petition No. 2799 of 2008 titled as ‘Budh
Ram and others v. State of Haryana and others‘ decided on 22nd May,
2009. One of us (T.S. Thakur, CJ) was party to the Full Bench.
Om Parkash Kapoor respondent employee, on 6th February,
1986 joined the service as Electronic Engineer in Electronic Test &
Development Centre (‘ETDC’ for short) at Solan (HP). On 1st May, 1988, this
project was taken over by the Government of India and petitioner No.1
issued appointment letter to the employee Om Parkash Kapoor, to the post
of Scientist ‘SC’ in the pay scale of Rs.2200-4000. The employee was
further selected on 31st May, 1991 as Scientist Engineer ‘SD’ in the pay
scale of Rs.3000-4500. He was further promoted as Scientist Engineer ‘SE’
with effect from 1st January, 1996 in the pay scale of Rs.3700-5000. The
post of Scientist Engineer ‘SE’, held by the respondent employee, was
Civil Writ Petition No. 3137 of 2008 3
redesignated as Scientist ‘D’. The pay scale of Scientist was revised from
Rs.3700-5000 to Rs.12000-375-16500. CCS (Revised Pay) Rules, 1997
were implemented and the respondent employee was held entitled to basic
pay or Rs.12375/- with effect from 1st January, 1996 in the revised pay scale
of Rs.12375-16500, in accordance with the advice dated 3rd March, 1998
rendered by Internal Audit, PAO, Department of Information Technology.
Thus, on the basis of internal audit observation the pay of the respondent
No.1 was revised under rule 7(I) of the CCS (Revised Pay) Rules,1997 as
given below:
(i) 01.01.1996 Rs.12,375/-
(ii) 01.02.1996 Rs.12,750/-
(iii) 01.02.1997 Rs.13,125/-
(iv) 01.02.1998 Rs.13,500/- and so on.
It is stated that on 14th October, 1997, respondent employee
had furnished an undertaking to refund the excess amount, if any, found
during the audit of arrears of pay and allowances paid on account of revision
of pay scale with effect from 1st January, 1996.
Case of the petitioner employers is that the salary was wrongly
fixed at Rs.12,375/- instead of Rs.12,000/-.
Mr. Ashwinie Bansal, learned counsel appearing for the
petitioners has stated that the respondent employee, even though was
appointed as Scientist, but had retired as a very senior officer from the post
of Additional Director, therefore, he had assess to the service book and all
instructions issued by the Government. Mr. Ashwinie Bansal has further
argued that the respondent employee retired as Additional Director and
therefore, it cannot be held that recovery of the excess salary paid will cause
hardship to him. To add spice to this argument, it was further submitted that
respondent employee had retired in one of the top scales available in the
Civil Writ Petition No. 3137 of 2008 4
ladder of the career by availing all promotions and on number of occasions
had also acted as Drawing and Disbursing Officer. Therefore, it cannot be
assumed that he was not aware of the wrong fixation of pay, even though,
there was no mistake, fraud or deception on the part of the employee, yet it
was his bounden duty to bring to the notice of the employer that his scale
has been wrongly fixed. Therefore, it was urged that the case of the
respondent employee will fall in category III envisaged in the judgment
rendered by the Full Bench in Budh Ram’s case (supra). The Full Bench
was constituted to answer following question of law:
“Whether the Government is entitled to recover from an
employee any payment made in excess of what he was
otherwise entitled to, on account of any mistake or bonafide
but erroneous interpretation or belief regarding any Rule,
Regulation or Government instructions whatsoever especially
in cases where the employee concerned is not guilty of any
fraud or misrepresentation in claiming or receiving such
monetary benefits.”In Budh Ram’s case (supra), the Full Bench had noted following
three distinct dimensions for consideration:
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
Civil Writ Petition No. 3137 of 2008 5is 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.
It was pronounced by the Full Bench that in the Category – I,
wherein the employee by reason of fraud, misrepresentation or any other act
of deception, had obtained the benefit, he will be disentitled to retain the
same and recovery of the amount can be effected. In Category – II, the Full
Bench held that where the employees are recipient of the benefits extended
to them on an erroneous interpretation or application of any rule, regulation,
circular and instructions and have not in any way contributed to such
erroneous interpretation nor have committed any fraud, misrepresentation or
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. Lastly, it was held that where the employee
has an obligation to verify the reason of the windfall or the bounty that he
has received, he is bound to refund the same as he is not lawfully entitled to
the same.
From the facts and circumstances of the case, we are of the
view that case of the respondent employee fall under the second category
and by no means it can be construed that respondent employee was
beneficiary of any bounty or windfall. Therefore, the alleged undertaking
given by the respondent employee in 1997 will also pale into insignificance.
Hence, we find no infirmity in the order passed by the Tribunal,
as the same is based upon correct interpretation of the judgments rendered
by Hon’ble Apex Court and the view taken by the Full Bench of this Court in
Budh Ram’s case (supra).
Civil Writ Petition No. 3137 of 2008 6
Therefore, there is no merit in the present writ petition and the
same is dismissed without any order as to costs.
[T. S. THAKUR] [KANWALJIT SINGH AHLUWALIA]
CHIEF JUSTICE JUDGE
August 7, 2009
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