IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 5457 of 2009 DATE OF DECISION : 19.08.2009 Chhabil Dass .... PETITIONER Versus State of Haryana and another ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL Present: Mr. Devinder Punia, Advocate, for the petitioner. Mr. D.K. Khanna, Advocate, for respondent No. 2. * * * SATISH KUMAR MITTAL , J. In this writ petition, the petitioner has challenged the order dated 20.10.2008, passed by the Managing Director, Haryana State Minor Irrigation and Tubewell Corporation, Panchkula (hereinafter referred to as `the respondent Corporation'), whereby the benefit of Military Service granted to the petitioner with effect from 22.11.1974 (the date of his appointment as work charged driver) has been withdrawn and the said benefit has been granted to him with effect from 21.11.1979 (the date when his services were regularised); and also to set aside the order of recovery of Rs. 67,397/-, which has been worked out on account of re-fixation of his CWP No. 5457 of 2009 -2- pay, and deducted from his retiral dues. The brief facts of the case are that the petitioner joined the services of the respondent Corporation as Driver on work charge basis on 22.11.1974. Before joining services of the respondent Corporation, the petitioner served the Indian Military during National Emergency period from 1962 to 1969. His services were regularised on 21.11.1979. On 18.8.1989, the Board of Directors of the respondent Corporation in their meeting decided to grant the benefit of Military Service to the eligible employees of the respondent Corporation in accordance with the provisions of the Punjab Govt. National Emergency (Concession) Rules, 1965, as amended by the Government from time to time. In view of the said decision, the petitioner was granted the benefit of Military Service with effect from 22.11.1974, the date when for the first time he joined the services of the respondent Corporation as Driver on work charge basis. Accordingly, his pay was re-fixed and he received the said benefit till the date of his retirement on 30.6.1999. After the retirement of the petitioner, his retiral dues were withheld. Subsequently, vide order dated 28.4.2000, the benefit of Military Service granted to the petitioner with effect from 22.11.1974 was withdrawn and the same was granted with effect from 21.11.1979. On that account, an amount of Rs.67,397/- was ordered to be recovered from the petitioner, which was deducted from his retiral benefits. The petitioner challenged the said order by filing a civil suit. CWP No. 5457 of 2009 -3- The court of Additional Civil Judge (Senior Division), Hisar, vide judgment and decree dated 23.11.2005 directed the respondent Corporation to re- consider the matter of re-fixation of the pay of the petitioner after affording him an opportunity of being heard, in according with the rules. Against the said judgment and decree, the petitioner filed appeal. The court of District Judge, Hisar, vide judgment dated 14.12.2006, disposed of the said appeal with direction to the respondent Corporation to decide the issue of withdrawal of the said benefit and re-fixation of pay within four months after affording opportunity of hearing to the petitioner. In pursuance of the said directions, the respondent Corporation passed the order dated 20.10.2008, which has been challenged in the instant petition. In the impugned order, it has been stated that as per the decision of the Board of Directors and the Government instructions dated 3.3.1987, the benefit of Military Services was required to be allowed only to the regular employees and not to the work charge or ad-hoc employees. Since the services of the petitioner were regularised with effect from 21.11.1979, therefore, the benefit of Military Services was to be granted to him from the said date, but the Fatehabad Lining Division, MITC, Hisar, where the petitioner was posted, inadvertently granted the said benefit to him with effect from the date of his joining as Driver on work charge basis i.e. 22.11.1974, ignoring the decision of the Board of Directors. It has been further stated that only on the retirement of the petitioner, this fact came to the notice of the respondent Corporation. Accordingly, the orders of CWP No. 5457 of 2009 -4- allowing the benefit of Military Service to the petitioner with effect from 22.11.1974 was withdrawn and the said benefit was allowed to him from the date, when his services were regularised, and on re-fixation of his pay, the amount in question was ordered to be recovered, which was deducted from the retiral benefits of the petitioner. During the course of arguments, learned counsel for the petitioner, could not make out a case for grant of the benefit of Military Services to the petitioner with effect from 22.11.1974, the date on which he joined the services of the respondent Corporation as Driver on work charge basis. Even, according to the Punjab Govt. National Emergency (Concession) Rules, 1965, the benefit of Military Services shall be admissible only on the first appointment to any service or post under the Government. The Government of Haryana, vide its instructions dated 3.3.1987, had clarified that benefit of Military Services was not to be given to work charged and ad-hoc employees. Therefore, the respondent Corporation was fully justified in withdrawing the benefit of Military Services granted to the petitioner with effect from 22.11.1974. The said benefit has rightly been granted to the petitioner from the date of regularisation of his services i.e. 21.11.1979. Faced with this situation, learned counsel for the petitioner argued that the bare perusal of the impugned order clearly reveals that there was no concealment or mis-representation on the part of the petitioner, when the order of granting the benefit of Military Services with effect from CWP No. 5457 of 2009 -5- 22.11.1974 was passed. The respondent Corporation itself, while interpreting the provisions of the Punjab Govt. National Emergency (Concession) Rules, 1965, granted the benefit of Military Services to the petitioner from the date of his entering into Government service. In view of these facts, learned counsel for the petitioner argued that in view of the decision of the Hon'ble Supreme Court in Sahib Ram v. State of Haryana, 1994 (5) SLR 753 and decision of the Full Bench of this Court in Budh Ram and others v. State of Haryana and others, (CWP No. 2799 of 2008, decided on 22.5.2009), the respondent Corporation cannot recover the amount of Rs. 67,397/- from the petitioner, which was paid to him in pursuance of the granting of said benefit by the respondent Corporation itself, without any concealment or mis-representation on the part of the petitioner. After hearing counsel for the parties, I find force in the aforesaid contention raised by learned counsel for the petitioner. It is the conceded position that the petitioner did not play any role or make any concealment or mis-representation at the time, when the benefit of Military Services was granted to him by the respondent Corporation in view of the decision of its Board of Directors. Even in the impugned order, it has been stated that the Fatehabad Lining Division MITC, Hisar, inadvertently, granted the said benefit to the petitioner. The respondent Corporation continued to pay the said benefit of Military Services to the petitioner till he retired from service on 30.6.1999, on attaining the age of superannuation. It CWP No. 5457 of 2009 -6- is also conceded position that it is only after the retirement of the petitioner, respondent Corporation came to know that the petitioner was wrongly granted the benefit of Military Services from the date of his joining as Driver on work charge basis. Therefore, after withdrawing the said benefit, the pay of the petitioner was re-fixed and an amount of Rs. 67,397/- was deducted from his retiral dues. In my opinion, in these facts and in view of the law laid down by the Hon'ble Supreme Court in Sahib Ram's case (supra) and the Full Bench of this Court in Budh Ram's case (supra), the respondent Corporation was not justified to recover the said amount from the petitioner and deduct the same from his retiral dues, as the said amount was paid to him on account of the wrong interpretation of the Rules and Regulations, without any mis-representation, concealment or fraud on the part of the petitioner. No other point was raised by learned counsel for the petitioner. Thus, this petition is partly allowed and the impugned order dated 20.10.2008 is set aside to the extent of recovery of Rs. 67,397/- from the petitioner and deducting the same from his retiral dues. The respondent Corporation is directed to pay the said amount to the petitioner within a period of three months from the date of receipt of copy of this order, with interest at the rate of 8% per annum. August 19, 2009 ( SATISH KUMAR MITTAL ) ndj JUDGE