IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition No. 874 of 2003 Date of decision : 4.7.2008 H.R.T.C and another Petitioners Versus Durga Nand. Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for reporting?1 No. For the petitioners: Mr. Ashok Sharma, Advocate. For the Respondent: Mr. Bhuvnesh Sharma, Advocate. Per Deepak Gupta, J. (Oral) This writ petition is directed against the order of the learned H.P. Administrative Tribunal, Shimla, passed in O.A. No. 69 of 1996, whereby the order dated 5.4.1995 withdrawing the grant Senior Scale to the petitioner has been quashed. Brief facts of the case are that the respondent was a conductor in the HRTC. He was granted the Senior Scale of pay attached to this post w.e.f.1.1.1986 vide order dated 21.2.1991. A memo was issued to the respondent on 27.6.1994 informing him that he had wrongly been granted the senior scale of pay since a 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. penalty was in operation against him when he was granted this scale. The employee filed reply to the said memo on 22.9.1994. After considering the reply of the employee, the petitioner (HRTC) vide order dated 5.4.1995 decided to withdraw the earlier order dated 21.2.1991 and further directed that recovery be made from the employee of the higher pay already paid to him. The respondent challenged this order by filing O.A. No. 69/96 before the learned Tribunal. The learned Tribunal held that the employee had neither made any misrepresentation nor committed any fraud and therefore, the employer was not entitled to recover the amount. The main ground for passing the order dated 5.4.1995 withdrawing the benefit of the order dated 21.2.1991 was that at the time when the initial order granting the senior scale of pay had been passed the employer had not taken into consideration the fact that the penalty order was in operation against the employee. This fact was well within the knowledge of the employer. The employee had not hidden this fact. The learned Tribunal has relied upon the judgement of the apex Court, i.e. Bhagwan Shukla vs. Union of India, AIR 1994 SC 2480, Divisional Superintendent Eastern Railway, Dinapur and others vs. L.N.Kashri and others, AIR 1974 SC 1889 and certain other judgements of this Court as well as of the apex Court while passing the impugned order. The law in this behalf is well settled. In case, an employer gives some benefits to the employee and it is later found that the employee was not entitled to this benefit the employer is not entitled to recover the amount already paid unless it is shown that the amount was paid due to some act on the part of the employee. In this case, admittedly, the employee had not done anything which could have induced the employer in paying this amount. Therefore, this part of the order of the learned Tribunal calls for no interference. The learned Tribunal has, however, further held that the order dated 5.4.1995 was passed without giving any opportunity to the employee and therefore, there is violation of principles of natural justice and the order has been quashed. This portion of the order is against the facts on record. The learned Tribunal in para 2 of the order has itself noted that a show cause notice was issued to the employee and the reply of the employee was considered before passing the order. No other opportunity was required to be given. Therefore, the order of the learned tribunal insofar as it sets-aside and quashes the order dated 5.4.1995 is against facts and is accordingly set-aside. In view of the above discussion, we uphold the order of the learned Tribunal only to the extent that no recovery shall be made from the amount already paid to the employee prior to the issuance of the notice dated 27.6.1994. Rest of the order is set aside and the order dated 5.4.1995 is upheld in all other respects. The writ petition is partly allowed and the order of the learned tribunal is modified to the aforesaid extent. The petition is disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta ), J. July 4, 2008 ( V.K.Ahuja ), J. ™