Regular Second Appeal No. 2200 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2200 of 2009 Date of decision:17.08.2009 Surinder Kumar s/o Dev Raj, D.O.B. 08.03.1965, working under Sub Division No.2, Water Supply & Sanitation (RWS),Sub Divisional Engineer, Mansa. ..... Appellant. Versus 1. Punjab State through District Collector, Mansa. 2. Chief Engineer, Water Supply & Sanitation (RWS), The Mall, Patiala. 3. Superintendent Engineer, Water Supply and Sanitation (RWS),Bathinda. 4. Executive Engineer, Water Supply and Sanitation (RWS), Mansa. 5. Deputy Controller (Finance & Accounts) Internal Audit Organization (Mall) Bathinda. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr.Ramesh Goyal, Advocate for the appellant. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 06.04.2009, rendered by the Court of District Judge, Mansa, vide which it accepted the appeal against the judgment and decree dated 19.03.2007, rendered by the Court of Civil Judge (Senior Division), Mansa, and dismissed the suit of the plaintiff in toto. Regular Second Appeal No. 2200 of 2009 -2- 2. The facts, in brief, are that the plaintiff/appellant was working as Junior Engineer, in the office of Water Supply and Sanitation (RWS), Sub Division No.2, Mansa. He joined as Junior Engineer (Civil) on 20.01.1984 in the Punjab State Tubewell Corporation Ltd., vide order dated 18.01.1984. The Punjab State Tubewell Corporation is substantially controlled by the Government of Punjab. It was stated that the service conditions, regarding the fixation of pay, leave and other benefits, to the employees of the Corporation are governed by the Punjab Civil Service Rules as are applicable to the Punjab Government Employees. It was further stated that while serving in the Punjab State Tubewell Corporation Ltd. on regular basis, in the year 1988, the Chairman, Departmental Selection Committee, Punjab Public Works Department (Public Health Branch, Patiala) gave an advertisement in 'the Tribune' Chandigarh, inviting applications, for the post of Junior Engineer (Civil). Accordingly, the plaintiff applied for the said post, through proper channel, and his application was forwarded by the concerned department,vide letter dated 04.08.1988. It was further stated that the plaintiff was called for interview on 07.07.1989, vide memo dated 20.06.1989. It was further stated Regular Second Appeal No. 2200 of 2009 -3- that after taking into consideration the qualifications, eligibility, experience and performance in the interview, the name of the plaintiff was recommended by the Departmental Selection Committee, for the appointment of Junior Engineer (Civil), by issuing a formal appointment letter dated 6.2.1990. It was further stated that the plaintiff was relieved on 27.02.1990(AN) by the Divisional Engineer, Bathinda, Construction Division No.2, Punjab State Tubewell Corporation Ltd. Bathinda, with a direction to join at Abohar. The plaintiff accordingly joined at Abohar in Water Supply and Sanitation (RWS), Department, without any break, on 28.02.1990 (FN). It was further stated that the pay of the plaintiff was protected by the Chief Engineer (GW), Punjab Public Health Department, Patiala, vide letter dated 27.10.1997, keeping in view his service conditions, under Rule 4.4(b) and 44(c) of the Punjab Civil Service Rules, Volume-I, Part-I. It was further stated that it was no where mentioned that the pay of the plaintiff, was to be fixed at a lower scale of pay. It was further stated that the pay of the plaintiff was protected in the year 1997, vide order dated 09.04.1997. He had been enjoying such benefits for a long time. However, on the basis of internal audit report, Bathinda, vide memo dated Regular Second Appeal No. 2200 of 2009 -4- 13.12.2004, the benefit of pay protection given to the plaintiff, was withdrawn, and it was ordered that recovery of Rs.71,051/- paid to the plaintiff, in excess, on account of such pay protection, be recovered. It was further stated that the plaintiff neither played fraud nor mis-led the department at the time of protection of his pay. It was further stated that the order withdrawing the benefit of pay protection of the plaintiff and recovery of the aforesaid amount, was illegal, arbitrary and in- operative against the rights of the plaintiff. The defendants were many a time asked to withdraw the order impugned, but to no avail. Ultimately, a suit for declaration and permanent injunction was filed. 3. The defendants, put in appearance, and contested the suit, by way of filing a joint written statement. It was pleaded that the plaintiff had neither locus standi nor cause of action to file the suit; and that the suit was not maintainable. It was stated that the plaintiff worked as Junior Engineer in Punjab State Tubewell Corporation Ltd. from 20/21.01.1984 to 27.02.1990. It was further stated that the plaintiff joined the Water Supply and Sanitation (RWS), Sub Division No.2, Mansa, afresh as Junior Engineer, on 28.02.1991, in the pay scale of Rs.1800-3200 vide letter dated Regular Second Appeal No. 2200 of 2009 -5- 06.02.1990, issued by defendant no.1. It was further stated that in the appointment letter, it was made clear, in para no.16 that if the plaintiff was working in some other board or Corporation, then no benefit regarding seniority/pay or service etc. were admissible to him and he will be entitled to draw his initial pay, in the pay scale. It was further stated that the plaintiff accepted this condition, with eyes wide open, and joined the department on 28.02.1990. It was further stated that even the instructions, issued vide letters dated 15.11.2000 and 08.05.2000 by the Punjab Government, showed that an employee in a public sector Corporation, on appointment in a Government office, on being declared surplus or otherwise, shall be deemed to be joining under the Government for the first time (afresh). It was further stated that as per the internal audit report, the plaintiff was not entitled to the benefit of previous service and pay protection. The Audit party recommended the recovery of the amount, drawn by the plaintiff on account of protection of his pay, to which he was not legally entitled. It was further stated that Rule 4.4B read with Rule 4.4C did not permit the protection of pay of an employee, who is selected in Government service from any Corporation like Punjab State Tubewell Corporation. It was Regular Second Appeal No. 2200 of 2009 -6- further stated that since the pay of the plaintiff on joining the service with the defendants, was wrongly protected and excess payment was made to him, the department rightly withdrew the benefit and ordered the recovery, vide the order impugned. The remaining averments, contained in the plaint, were denied, being wrong. 4. From the pleadings of the parties, the following issues, were framed by the trial Court :- “1- Whether the plaintiff is entitled to declaration, as prayed for ?OPP 2- Whether the plaintiff is entitled to injunction, as prayed for ?OPP 3- Whether the suit is within limitation ?OPD 4- Whether the suit is not maintainable ?OPD 5- Whether the plaintiff has no locus standi to file this suit ?OPD 6- Relief.” 5. The parties led oral as well as documentary evidence, in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court decreed the suit, as stated above. Regular Second Appeal No. 2200 of 2009 -7- 6. Feeling aggrieved, an appeal was preferred by the appellants/ defendants, which was accepted by the Court of District Judge, Mansa, vide its judgment and decree dated 06.04.2009. 7. Feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellant/plaintiff. 8. I have heard the Counsel for the appellant, and have gone through and perused the documents on record, carefully. 9. The Counsel for the appellant submitted that once the benefit of pay protection was granted to the plaintiff (now appellant), without any fault on his part, by the defendants (now respondents), the same could not be withdrawn. He further submitted that even the recovery of the amount, already received by the plaintiff, on account of his pay protection, could not be ordered to be effected. He further submitted that had the plaintiff (now appellant) played any fraud upon the defendants, at the time of passing the order of pay protection, the matter would have been different. He further submitted that the order withdrawing the benefit of pay protection, and recovery of the amount, was illegal. He further submitted that the first Appellate Court, recorded perverse Regular Second Appeal No. 2200 of 2009 -8- findings, on account of mis-reading and mis-appreciation of evidence, and law on the point, leading to the dismissal of the suit. He further submitted that the judgment and decree of the first Appellate Court, being illegal, were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion,the appeal deserves to be dismissed, for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of the Courts below, is confined only to the hearing Regular Second Appeal No. 2200 of 2009 -9- of substantial questions of law. Admittedly, the plaintiff was an employee of The Punjab State Tubewell Corporation Ltd., an autonomous body. He applied for the post of Junior Engineer, in the Public Health (RWS) Division, Punjab, for the same post, through proper channel. He was selected as Junior Engineer, in the Public Health Department, Punjab, vide appointment letter, (Ex.P12/D-1). He, thus, joined as Junior Engineer in the Public Health Department, Punjab, after admitting the terms and conditions, contained in the appointment letter. According to condition no.16 of the appointment letter, if the plaintiff was working in any Board or Corporation, he was not to be given the benefit of seniority/pay or service etc. It was also made clear in this letter that he would be entitled to draw his initial pay in the pay scale of 1800-3200. Para No.20 of the appointment letter, clearly revealed that if the aforesaid conditions were acceptable to the plaintiff, he could join the service. The plaintiff accepted the letter of appointment, in toto, without raising a little finger that conditions, contained in para nos. 16 and 20 aforesaid were not acceptable to him. He did not raise any protest at the time of accepting his appointment, as a fresher in the Public Health Department of the Punjab Regular Second Appeal No. 2200 of 2009 -10- Government, that since he rendered service in the Punjab State Tubewell Corporation Ltd. for a long period, his pay was required to be protected. He also did not send any communication, at the time of receiving the appointment letter that until and unless condition, contained in para no.16, of the appointment letter, was withdrawn, he was not ready to join the Public Health Department. Once the plaintiff accepted the letter of appointment and the conditions, contained therein, with eyes wide open, it did not lie, in his mouth, to seek his pay protection. It is evident from the documents, on record, that the plaintiff had been rendered surplus in the Punjab State Tubewell Corporation Ltd. He was appointed on compassionate ground, in the Public Health Department. Had there been no condition in the appointment letter, it would have been said that once the benefit of pay protection was granted to the plaintiff, the same could neither be withdrawn, nor the recovery could be ordered. If the pay of the plaintiff was wrongly protected, by an Officer of the Department, it could not be said that the benefit could not be withdrawn when such mistake came to the notice of the Audit party. In Comptroller & Auditor General of India and ors. v. Farid Sattar , JT 2000(4) SC 374, the respondent of his own sought Regular Second Appeal No. 2200 of 2009 -11- transfer on certain terms and conditions accepted by him. The terms and conditions of unilateral transfer were very clear and there was no ambiguity in the same. The pay of the respondent had to be fixed, with reference to the lower pay scale and not with reference to the pay drawn by him, in the higher post, since he was to be considered as a direct recruit, in the lower post on transfer. Under the terms and conditions of transfer, the pay, which the respondent was drawing on higher post, was not required to be protected. When he joined the lower post of Accountant, his pay was however, fixed, on his transfer, by giving the benefit of higher pay scale, which he was drawing before transfer, in his parent department, against the terms and conditions of transfer accepted by him. He also continued drawing the same pay, at the rate of Rs.2040/- per month, in the scale of 1400-2600, which he was earlier drawing in the parent department and which was wrongly protected as the post to which he was transferred carried the pay scale of Rs.1200-2040. Lateron, when this mistake was detected, his pay was re-fixed and the recovery of amount already drawn, on account of wrong fixation of pay, was ordered. That order was challenged, by him, and he succeeded before the Tribunal. Ultimately, an appeal was filed Regular Second Appeal No. 2200 of 2009 -12- by the Comptroller & Auditor General of India in the Apex Court. The Apex Court set aside the judgment of the Tribunal, and allowed the appeal holding that his pay was correctly re- fixed vide order dated 08.11.1994 by considering him to be a direct recruit. In Union of India & Ors. v. Smt. Sujatha Vedachalam & Anr. JT 2000(6) SC 217 an employee was transferred on the condition of joining the transferee office, in the lower post. Erroneously the pay was fixed in the higher scale. An orders for re-fixation of pay on the lower level, was passed. It was also directed that excess amount, drawn by him, on account of his erroneous pay fixation, be recovered. The respondent challenged that order, before the Tribunal, and succeeded. Feeling aggrieved, an appeal was filed by the Union of India & Ors. in the Apex Court. The Apex Court held that the order re-fixing the pay of the respondent and ordering the recovery of the excess amount drawn by him, was correct. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The mere fact that an error was committed by the Chief Engineer(GW), Punjab Public Helath Department, Patiala, in wrongly fixing the pay of the plaintiff, did not mean that he should continue reap the benefit of wrong fixation. The plaintiff, being an Regular Second Appeal No. 2200 of 2009 -13- employee of the Punjab Government, was a trustee. He was duty bound to repay the amount, to the Government, which was paid to him wrongly, on account of his incorrect pay protection. The Counsel for the appellant, however, placed reliance on Surinder Kalsi v. State of Punjab, 2006(4) Services Law Reporter 456 in support of his contention, that since no fraud was committed or mis-representation was made by the plaintiff, neither the benefit drawn by him, could be withdrawn, nor the amount could be recovered. In the first instance, the facts of Surinder Kalsi's case (supra) are distinguishable, from the facts of the present case. Secondly, in view of the principle of law, laid down, in Comptroller & Auditor General of India and ors's and Union of India & Ors.'s cases (supra), decided by the Apex Court,the principle of law, to the contrary, laid down by this court in Surinder Kalsi's case (supra) shall not hold the field. The first Appellate Court was, thus, right in dismissing the suit of the plaintiff. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. The judgment and Regular Second Appeal No. 2200 of 2009 -14- decree of the first Appellate Court, are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 12. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed. ( Sham Sunder ) 17.08.2009. Judge dinesh