CWP No. 12321 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 12321 of 1989 Date of decision 14 .1.2010 Kulwant Singh ... Petitioner Versus State of Punjab and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR Present: None for the petitioner Mr. Suvir Sehgal, Addl. AG Punjab. 1.To be referred to the Reporter or not ? 2.Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. This order shall dispose of CWP Nos. 12321 of 1989 and 16551 of 1992 as the issue raised in both the petitions is common. The facts for the purposes of this order are being taken from CWP No. 12321 of 1989. In this petition filed under Article 226 of the Constitution the petitioner prays for quashing para 7 of the Audit and Inspection note on the accounts of Block Primary Education Officer, Mahilpur from 12/85 to 12/87(P.4) and decision of the respondents to refix the salary of the petitioner which was on revision of pay scale on 16.7.1975 and on 8.1.1978. Brief facts of the case are that the petitioner joined as JBT teacher in the Education Department on 1.12.1961. The petitioner was granted the pay scale of Rs. 125-300 w.e.f. 1.11.1966 on account of the recommendations of the Kothari Commission by the Punjab Government. Punjab Government further decided to revise the pay scale of Masters and JBT Teachers w.e.f. 16.7.1975. The respondent- Director Public CWP No. 12321 of 1989 2 Instructions vide letter dated 27.7.1982 (P.2) instructed all the District Education Officers to fix the pay scales of all JBT Teachers w.e.f. 16.7.1975 from 125-5-250/10-300 to Rs. 150-7-0234/8-250-10/300 . As the petitioner was drawing pay of Rs. 190/- on 16.7.1975 his pay was fixed at Rs. 192/- p.m. with effect from 1.1.1978. The Punjab Government again revised the pay scale of JBT teachers from 150-300 to Rs. 440-880 and the pay of the petitioner was accordingly fixed at Rs. 585/- w.e.f. 8.2.1978. The Audit Party raised an objection (P.4) to the fixation of salary of the petitioner as on 16.7.1975 and on 8.2.1978. It desired to fix the salary of the petitioner according to the new fixation formula. The Audit Party also worked out overpayment of Rs. 7260.53P. on account of excess payment. The Audit Party further desired that amount of DA and ADA paid to the petitioner may also be worked out and recovered under intimation to the Auditors. It has been averred in the petition that mere raising of an objection by the Audit Party is not sufficient to reduce the salary of the petitioner and to order recovery. The petitioner had a right to be heard before the implementation of the order. It is alleged that the respondents have sought to enforce the observations of the Audit Party without complying with the principles of natural justice. I have heard the learned State Counsel and have perused the paper book. It is admitted position that before implementing the observations of the Audit Party no hearing was afforded to the petitioner. It is well settled proposition of law that recovery would be unfair, inequitable and against justice and good conscience in cases where the benefits sought to be recovered were granted on the basis of bonafide mistake committed by CWP No. 12321 of 1989 3 the authority granting the same while applying or interpreting a provision contained in the service rule, regulation or any other memo or circular authorising such grant regardless whether or not grant of benefits involved the performance of higher or more onerous duties by the employee concerned. In support of the above proposition reliance could be placed on the observations made in para 12 by a Full Bench judgement of this Court in the case of Budh Ram and others v. State of Haryana and others (2009-3) PLR 511, which reads thus: “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 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 t he 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 CWP No. 12321 of 1989 4 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. It does not require much imagination to say that additional monetary benefits going to an employee may not always result in accumulation of his resources and savings. Such a benefit may often be utilized on smaller luxuries of life which the employee and his family may not have been able to afford had the benefit not been extended to him. The employees can well argue that if it was known to them that the additional benefit is only temporary and would be recovered back from them, they would not have committed themselves to any additional expenditure in their daily affairs and would have cut their coat according to their cloth. We have, therefore, no hesitation in holding that in case the employees who are recipient of the 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.” In para 7 of the judgement in Budh Ram's case (supra), the Full Bench has observed that the cases where the employee has obtained any benefit 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 CWP No. 12321 of 1989 5 acts or any of them. In the instant case, the petitioner has not misrepresented or had obtained the benefit on any other act of deception. In view of the above enunciation of law. It is held that no recovery of excess amount be effected from the petitioners. However, the petitioners would not be entitled to the benefit of any re-fixation. A copy of this order be placed on the file of connected pettion. (M.M.Kumar) 14.1.2010 Judge okg