IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 19710 of 2008 Date of Decision: 27.1.2010. Darshan Singh --Petitioner Versus State of Punjab and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Tribhawan Singla, Advocate for the petitioner. Mr. P.C. Goyal, Addl. A.G., Punjab. *** PERMOD KOHLI.J (ORAL) The petitioner confines the relief only to recovery part. There is nothing in the reply that any benefit was given to the petitioner on account of any mis-representation or fraud. The question of recovery is squarely covered by a Full Bench judgement of this Court in CWP No.2799/2008 etc. (Budh Ram and others vs. State of Haryana and others). On consideration of the controversy, Hon’ble Full Bench formulated following three issues to answer the reference:- 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 CWP. No. 19710 of 2008 -2- presumed to have known that the benefit was flowing to him undeservedly because of a mistake by the authority granting the same.” On consideration of various judgments, issue no.i) was answered as follows:- “…….It follows that a person, who has committed a fraud, misrepresentation or any other act of deception cannot possibly qualify for any relief in equity. A priori, it must be held, that any benefit received or obtained by an employee by reasons of fraud, misrepresentation or any other act of deception would disentitle him to retain the benefit, which he has obtained as a result of such acts or any one of them.” Issue No. ii) has been answered with the following observations:- “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 CWP. No. 19710 of 2008 -3- 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….” While considering Issue No. iii), Hon’ble Full Bench perceived certain situations and made following observations:- “It is a case where by reason of sheer neglect of a functionary of the State Government, a payment that is undeserved and wholly uncalled for is made to the employee…..” We cannot for obvious reasons exhaustively enumerate situations where such payments are received and can be lawfully recovered. All that we propose to point out is that while generality of the cases would fall in category (i) and (ii), some freak cases like the one in category (iii) that we have been able to conceive, may need to be dealt with independently depending upon whether the employee can be attributed the knowledge that the payment was undeserved and whether the duty to verify the factual position and refund the amount when the same came to his notice could be read into his duty as an employee of the State or its instrumentalities. The reference is answered accordingly. These petitions shall now be placed before the appropriate Bench for disposal in the light of what we have said above.” In view of the above, respondents are not entitled to make any recovery from the petitioner, though, the re-fixation made cannot be faulted with. This petition is, accordingly, allowed. While uphelding the re-fixation, recovery is hereby quashed. (PERMOD KOHLI) JUDGE 27.1.2010. lucky