CWP No.5910 of 1997.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.5910 of 1997 (O&M) Date of Decision: 06.01.2011 **** Hardev Rehal . . . . Petitioner VS. State of Punjab & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers 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? **** Present: Mr. Sanjeev Sharma, Advocate for the petitioner Mr. Rahul Sharma, Advocate for the respondents ***** SURYA KANT J. (ORAL) (1). The petitioner joined the Marinda Cooperative Sugar Mill Ltd. as Head Electrician on 06.01.1970 and was later on promoted as Assistant Engineer (Electrical) on 16.01.1971. The petitioner though was due to retire on 31.07.1994 but he was retired compulsorily two months in advance w.e.f. 08.06.1994. He has now approached this Court to direct the respondents to grant the balance amount of Gratuity which was paid upto 30.06.1992 only and not for the later part of the service and also to pay leave encashment as well as salary for the period from 08.06.1994 to 31.07.1994. CWP No.5910 of 1997.doc - 2 – (2). The Sugarfed has filed its reply/affidavit maintaining that after implementation of the Punjab State Cooperative Sugar Mills (Common Cadre) Rules, 1981, as amended on 28th January, 1991, the petitioner and other employees of the sugar mills were liable to be retired on attaining the age of 58 years. As soon as the amended Rules were brought into force, the petitioner having already completed 58 years of age, was also retired. It has been further averred that the petitioner was paid Gratuity by counting the service rendered by him upto the age of 58 years and after deducting a sum of Rs.2748/- on account of the excess leave encashment, the respondents are willing to pay the balance amount of Rs.6112/- to him. It has been further averred that the petitioner was entitled to be paid leave encashment upto 30.06.1992 only i.e. the age of 58 years and not for the subsequent service rendered by him and since he had been paid the leave encashment in excess, that the recovery was rightly effected. (3). Having heard learned counsel for the parties and on perusal of the documents on record, I find that the following questions arise for consideration :- CWP No.5910 of 1997.doc - 3 – i. whether the respondents could effect recovery of the alleged excess amount of leave encashment even when there is no fraud or misrepresentation of facts on the part of the petitioner while claiming such benefits? ii. whether the petitioner is entitled to be paid Gratuity/Leave Encashment for the actual period of service rendered by him and/or for the reduced service period upto the age of 58 years only? (4). As regards the first question, the controversy is no longer res integra as a Full Bench of this Court in Budh Ram & Others vs. State of Haryana & Others, 2009(3) PLR 511 has ruled that where an employee is not involved in misrepresentation of facts or deceiving the authorities, no recovery of the monetary benefit(s) already drawn by him, even without his entitlement, can be effected. (5). The impugned action to the extent of deduction from the arrears of Gratuity made by the respondents is accordingly set aside. (6). Adverting to the second question, the petitioner has not challenged the amendment carried out in the 1981 Service Rules whereby the age of retirement has been reduced to 58 years. It does appear that the reduced age of retirement has been applied uniformly. No fault CWP No.5910 of 1997.doc - 4 – therefore can be found with the action of the respondents in deciding to retire the petitioner on his completion of 58 years of age. (7). The fact of the matter, however, is that the petitioner had completed 58 years of age in June 1992 but factually he continued to serve the respondents till 08.06.1994. The respondents being the authors of the amended Rules and the date of birth of petitioner being very much in their knowledge allowed him to continue in service till 08.06.1994, may be due to negligence, inadvertence and/or by mistake. Since the petitioner has factually served the respondents beyond 31.06.1992 i.e. upto 08.06.1994, in my considered view, he is undoubtedly entitled to the consequential service benefits earned during the said excess service period. The respondents cannot be permitted to restrict his leave encashment/Gratuity on the premise that he had attained the age of retirement in June 1992 when factually he remained in service till 08.06.1994. (8). For the reasons afore-stated, the writ petition is allowed to the extent that the recovery orders are hereby quashed and the amount deducted from the retiral dues of the petitioner is ordered to be refunded to him along with interest @ 7% per annum with effect from the date of his CWP No.5910 of 1997.doc - 5 – retirement till the actual payment thereof. Similarly, the respondents are directed to re-calculate the Gratuity/Leave Encashment and other retiral dues of the petitioner by counting and treating him in service till 08.06.1994 and release the arrears thereof along with interest @ 7% per annum. (9). The needful shall be done within a period of three months from the date of receipt of a certified copy of this order. (10). Ordered accordingly. Dasti. 06.01.2011 vishal shonkar (S u r y a K a n t) Judge