IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 13124 of 2009 DATE OF DECISION: August 26, 2009 Karamjit Kaur and Another .........PETITIONER(S) VERSUS State of Punjab and Others ......RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. A.K. Walia, Advocate, for the petitioners. AJAI LAMBA, J. (ORAL) The petition has been filed by surviving spouse in challenge to the action of the respondents whereunder a recovery of dearness allowance paid on family pension is being effected. The respondent-State has passed instructions to the effect that in cases wherein appointment on compassionate grounds has been given to a member of the family, dearness allowance is not payable on family pension to the surviving spouse. The allowance was paid in the case of the petitioner(s). Subsequently, however, after coming to know about the fact, recovery is being effected. Hence, the petition. Learned counsel appearing for the petitioner(s) contends that the matter is covered by judgment rendered by Division Bench in CWP No. 891 of 2003 titled Mukhtiar Singh and Others Vs. The State of Punjab and Others decided on 20.02.2004. In regard to recovery, learned counsel has placed reliance on Full C.W.P. No. 13124 of 2009 -2- Bench judgment of this Court dated 22.05.2009 rendered in Budh Ram and Others vs. State of Haryana and Others bearing, CWP No. 2799 of 2008. Notice of motion. On the request of the Court, Sh. B.S. Chahal, DAG, Punjab accepts notice. Heard. Learned counsel for the respondent has not been able to distinguish the judgment rendered in Mukhtiar Singh's case (supra). Learned counsel has rather pointed out that the State of Punjab had gone up in appeal in the Hon'ble Supreme Court of India. The appeal has been dismissed and, therefore, the judgment rendered in Mukhtiar Singh's case has attained finality. Having considered the facts and circumstances given out above, I am of the opinion that the respondents cannot effect recovery in view of Mukhtiar Singh's case (supra), wherein the following has been held:- “Insofar as the first issue is concerned, the controversy in hand stands adjudicated upon by the Apex Court in H.S.E.B. And Ors. Versus Azad Klaur (Civil Appeal No. 5835 of 1998, decided on 18.8.1999). In view of the determination of the Apex Court on the issue under reference, we are satisfied that the claim of the petitioners for dearness allowance on family pension is misconceived. The first contention of the petitioner is, therefore, not accepted. The second issue relates to the recovery of dearness C.W.P. No. 13124 of 2009 -3- allowance wrongfully paid to the petitioners. It is not a matter of dispute between the parties that the payment of dearness allowance to the petitioners was not based on any misrepresentation at their hands. It is clear that dearness allowance was wrongfully paid to the petitioners by the respondents unilaterally. That being so, in view of the decision rendered by the Apex Court in Sahib Ram Versus The State of Haryana and Others, 1994 (5) SLR 753, we are satisfied that the recovery should not be effected from the petitioners. In view of the above, the instant writ petitions are dismissed insofar as the claim of the petitioners for dearness allowance on family pension is concerned, however, the prayer of the petitioners is allowed in respect of the recovery sought to be made from them. In case any recovery has been made from the petitioners in the interregnum, the same shall be refunded to the petitioners within a period of four months from today. Disposed of in the aforesaid terms.” In Budh Ram's case (supra), while considering the second question for determination viz.:- “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;”, the following has been held:- C.W.P. No. 13124 of 2009 -4- “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, inquitable 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. 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 C.W.P. No. 13124 of 2009 -5- 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.” Resultantly, the petition is allowed. The respondents are directed to refund the amount recovered from the petitioner(s) within four months of receipt of certified copy of the order. 26.08.2009 (AJAI LAMBA) shivani JUDGE 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the Digest?