Civil Writ Petition No. 17316 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 17316 of 2010 Date of decision: 28.02.2011 Mahesh Chand etc. ...Petitioners Versus NIPER ...Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Amit Mehta, Advocate for the petitioners. Mr. K.K. Gupta, Advocate for the respondent. RANJIT SINGH J. The petitioners have approached this Court for setting aside Annexures P-4 to P-7, whereby the pay of the petitioners has been re-fixed on the ground that the benefit of personal pay was wrongly given to petitioners No. 1 to 3. The petitioners are also aggrieved of the recovery as ordered by the respondents. Petitioners No. 1 to 3 are working as Technical Assistant in National Institute of Pharmaceutical Education and Research (NIPER). Petitioner No. 4 is working as Scientist Grade-II. The pay scale of the petitioners was fixed on 11.10.2006 in different scales. These were revised w.e.f. 01.01.2006 and the petitioners were placed in the scale of Rs. 9300/- with a grade pay of Rs. 4200/- totaling Rs. 13,500/-. Petitioner No. 2 received this sum. Suddenly, petitioner No. 2 came to know that he was drawing more than the other petitioners and this anomaly was rectified vide order dated Civil Writ Petition No. 17316 of 2010 2 20.05.2009. The crux of the issue is that the petitioner's pay scale was revised by granting personal pay, which was not due and, accordingly, w.e.f. June, 2010 pay of the petitioners were reduced, without giving any opportunity of hearing. The petitioners were informed that the personal pay was wrongly given to petitioners No. 1 to 3 and, thus, excess amount paid was required to be recovered. The respondents have filed reply. It is stated that the revised pay rules were notified in the year 2008. Subsequently, the Government had issued instructions laying down the procedure to be followed in implementing the said rules on 30.08.2008. It was also pointed out that the necessary benefits including the arrears were disbursed to the existing employees without any pre-check with the understanding that any excess payment could be recovered, an undertaking in this regard was obtained from the employees that in the event of an excess payment, the same shall be liable to be recovered on account of any incorrect fixation of pay or on account of any discrepancy. Specimen form of undertaking so obtained is annexed with the petition as Annexure-III. The case set up by the respondents, thus, is that the payment initially was made without any pre-check, as per the instructions issued. Subsequently, it was noticed that certain pay including personal pay was not admissible to the petitioners and, accordingly, recovery was effected for which, undertaking had earlier been obtained from the petitioners. Counsel for the petitioners pleads that in view of the law laid down by Full Bench of this Court in Budh Ram versus State of Haryana 2009 (3) SCT 333, the amount of payment made in excess cannot be recovered as there was no misrepresentation or fraud on Civil Writ Petition No. 17316 of 2010 3 the part of the petitioner. As per the counsel, the overpayment, if any, was due to the payment of personal pay and in this regard it cannot be said that the petitioners were aware or could be attributed with any knowledge to point the anomaly so as to make the case to fall within the exception carved out in Budh Ram's case. On the other hand, counsel for the respondents would say that this is not a case, which would be covered by ratio of law laid down by Budh Ram's case (supra) under categories of no misrepresentation and no fraud but rather it would be a case falling in exceptional category carved out in Budh Ram's case (supra). The Full Bench of this Court in Budh Ram's case has created an exception in some cases. As per the decision, the situation is conceivable in which an employee when he is not guilty of misrepresentation, fraud, deception or the like but receives, under a mistake of any functionary of the State, an amount which he has no reason to either receive or appropriate. There may be a case where an employee receives an amount with his salary that is wholly disproportionate, unexpected or inexplicable, which clearly would not be payable to him. The question is whether the employee has any obligation to verify the reason or the genesis of the windfall that he has received and to refund the same then such a case may otherwise be not falling in the exception where the recovery could not be effected but still was categorised as a case where the respondents were entitled to recover the amount of over payment. Strictly speaking, this aspect may not be directly arising in this case. This is a case where the payment was made by the respondents while being fully conscious that there may be an Civil Writ Petition No. 17316 of 2010 4 overpayment because of absence of pre-check. The payment in this case was made without pre-check. This was realized by the department as well as by the petitioners, who were receiving this payment. An undertaking was obtained from the petitioners that in case of any overpayment, the aspect of misrepresentation would not come into play to curtail the right of the respondents to effect recoveries of overpayment. This is a special case, where some payment was made without pre-check and the possibility of overpayment was realized and an undertaking obtained to recover the amount paid if any in excess. In such cases, it will not be fair and open for the petitioners to plead that no recovery can be effected from them once they have given an undertaking to refund the excess payment received. It would not lie in their mouth to say that the recoveries cannot be effected even if the ratio of law laid down in Budh Ram's case to an extent may apply. Counsel for the respondents has also referred to the case of Registrar, Co-operative Societies, Haryana and Ors. Versus Israil Khan & Ors. 2010 (2) RSJ 58. In this case, the Hon'ble Supreme Court has set aside the order passed by the High Court, which has held that the illegal payment to the petitioner need not to be refunded. The appellant-Co-operative society in this case was directed to calculate the recovery of the excess and recovered the same in instalments. In view of the position noticed above, I am of the view that this is not a case for this Court to invoke the writ jurisdiction to set aside the recovery effected. The respondents have acted fairly in recovering the amount on the basis of an undertaking and this action Civil Writ Petition No. 17316 of 2010 5 would not call for any interference. The writ petition is, accordingly, dismissed. February 28, 2011 (RANJIT SINGH ) rts JUDGE