IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** C.R. No.7703 of 2010 (O&M) Date of Decision:26.11.2010 Sukh Lal .....Petitioner Vs. Food Corporation of India, Bhiwani and others .....Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. R.S. Panghal, Advocate for the petitioner. **** RAKESH KUMAR GARG, J. As per the averments made in this petition, the petitioner joined service of respondent in the year 1971. He was relieved from the service vide office order dated 7.3.2000. The petitioner filed a suit for declaration to the effect that the aforesaid order dated 7.3.2000 was illegal, arbitrary and against the service rules and was liable to be set aside and that he was entitled to service and retiral benefits as accrued to him with a consequential relief of mandatory injunction directing the respondents to give him the service benefits on his retirement from service on 7.3.2000 with interest. The said suit was dismissed by the Civil Judge (Junior Division), Siwani Camp at Bhiwani vide judgment and decree dated 29.3.2005. While dismissing the suit, the trial Court observed that the actual date of birth of the petitioner being 29.3.1940, he was to retire on 31.3.1998 at the superannuation age of 58 years and he continued in service beyond the said date on account of misrepresentation made by him in C.R. No.7703 of 2010 (O&M) -2- respect of his date of birth in the documents submitted to the respondents. The petitioner filed an appeal against the aforesaid judgment and decree of the trial Court, which was partly accepted to the extent that the plaintiff was held entitled to the retiral benefits with effect from 31.3.1998 along with all consequential reliefs thereto. With this partial modification, the present appeal was dismissed. Regular Second Appeal No.2490 of 2006 filed by the petitioner against the aforesaid judgment and decree was also dismissed by this Court vide order dated 4.3.2008. In the aforesaid appeal, the petitioner had not challenged the findings of the Courts below to the effect that he had made misrepresentation to the respondents regarding his date of birth. Thus, the aforesaid findings that the petitioner had continued in service beyond 31.3.1998 solely on account of misrepresentation made by him in respect of his actual date of birth in the subsequent documents submitted by him with the department became final. The petitioner preferred execution petition. The respondents filed objections submitting that his date of superannuation was 31.3.1998 and he continued in service till 7.3.2000 by misrepresentation of his date of birth and, therefore, the amount on account of salary and other benefits enjoyed by him during the said period was to be recovered from him. The executing court vide order dated 20.5.2008 accepted the aforesaid objections. However, it was held that the petitioner was not liable to pay a sum of Rs.1,11,592/- on account of interest on the excess amount paid to him and the JDs were directed to make the payment as per the aforesaid order to the petitioner. Petitioner filed an appeal against the aforesaid order, which was dismissed by Additional District Judge-II, Bhiwani vide his order dated C.R. No.7703 of 2010 (O&M) -3- 10.3.2010 holding that the aforesaid appeal was not maintainable against the order dated 20.5.2008 accepting the objection of the respondents. Thereafter, the execution petition filed by the petitioner was disposed of by the executing court vide impugned order dated 26.4.2010 holding that the whole amount claimed by the decree holder has already been received by him. It may also be noticed that during the course of arguments before the executing court as per the order dated 26.4.2010, the petitioner has not raised any argument regarding the amount recovered from him by the respondents as excess payment on account of continuation in service beyond the superannuation age on 31.3.1998. Challenging the aforesaid orders dated 20.5.2008 and 26.4.2010 (Annexures P.1 and P.3), counsel for the petitioner has vehemently argued that executing court cannot go behind the decree and the petitioner cannot be denied the wages for the period for which he had actually worked and thus the impugned orders were liable to be set aside. There is no dispute with the aforesaid proposition as raised by learned counsel for the petitioner, however, the argument raised by learned counsel for the petitioner is not available to him in view of the facts and circumstances of the case. It is well settled that any benefit received by the employee by reasons of fraud, misrepresentation would disentitle him to retain the benefit, which he has obtained as a result of such acts or any one of them. I am fortified in my view by the judgment of Hon'ble the Supreme Court in Sahib Ram Vs. State of Haryana, 1995(1) SCT 668 SC as followed by a Full Bench of this Court in Budh Ram Vs. State of Haryana, 2009(3) PLR 511. Admittedly, in the decree in question, a finding is recorded against the petitioner that he had continued beyond the superannuation age C.R. No.7703 of 2010 (O&M) -4- because of misrepresentation on his part regarding his date of birth. The said findings have admittedly become final against him and, therefore, now it does not lie in his mouth to say that the respondents cannot recover the same from him. In this view of the matter, I find no merit in this revision petition and the same is dismissed. November 26, 2010 ( RAKESH KUMAR GARG ) renu JUDGE