Regular Second Appeal No.4764 of 2009 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: March 04, 2010 Balraj Singh ...Appellant VERSUS Punjab State & another ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Vikas Chatrath, Advocate, for the appellant. ***** RANJIT SINGH, J. Civil Misc.No.14242-C of 2009 There is delay of 38 days in filing the appeal. For the reasons mentioned in the application, which is supported by an affidavit, the delay in filing the appeal is condoned. Application disposed of. Civil Misc.No.14243-C of 2009 There is delay of 65 days in re-filing the appeal. For the reasons mentioned in the application, which is Regular Second Appeal No.4764 of 2009 (O&M) : 2 : supported by an affidavit, the delay in re-filing the appeal is condoned. Application disposed of. Regular Second Appeal No.4764 of 2009 The appellant filed a suit seeking declaration that the order dated 29.6.2005 directing recovery of Rs.41,214/- from his salary by way of instalments is illegal, null & void and accordingly be set-aside, entitling the appellant to refund of the amount already deducted from his salary. The facts noticed in brief are that the appellant was a permanent employee of Punjab Roadways and was working as a Conductor since 1975. On 29.6.2005, he was conveyed through a letter of even date, directing recovery of the amount as already noted. He accordingly challenged the same on the ground that no opportunity of being heard was afforded to him and also prayed that the recovery being effected would be illegal as there was no misrepresentation or fraud on his part, even if some excess payment was made to him. The suit filed by the appellant was resisted and the impugned order was justified as legal and valid. The recovery as directed was accordingly justified. The suit filed by the appellant was allowed primarily on the ground that there was no fraud or misrepresentation on the part of the appellant and this was also in view of the statement recorded by the witnesses produced by the defendants. The first Appellate Court has, however, reversed this finding on the ground that it is not a case of any excess payment where the fraud or misrepresentation is to be seen. The excess payment allegedly received by the Regular Second Appeal No.4764 of 2009 (O&M) : 3 : appellant was on account of the fact that he enjoyed more casual and earned leave than were due to him. It is, thus, not a case of any excess payment where certain recoveries were made over to the employee on account of any mistake on the part of the respondents. It is a case where the appellant was not entitled to receive salary for the period of excess leave availed by him, it being a casual leave or earned leave. Since the employee would not be entitled to receive salary of this period, this case could not be equated with the case like of excess payment made on account of some mistake. Accordingly, the ratio of law laid down by the Full Bench of this court in Budh Ram's case (supra) saying that the recovery of the excess payment could not be made unless it was a case of fraud or misrepresentation. That part of the ratio would not apply to the facts of the present case. Rather, in Budh Ram's case (supra), the Full Bench of this Court was conscious of this fact as well as can be seen from the following observations made by the Full Bench:- “Apart from cases that fall in categories (i) and (ii) above, there is one conceivable situation in which an employee may even when he is not guilty of mis-representation, fraud, deception or the like receive, under a mistake of any functionary of the State, an amount which he has no reason to either receive or appropriate. For instance and purely on a hypothetical plane, there may be a case where an employee of the State Government or the instrumentality of the State receives an amount with his salary that is wholly disproportionate, unexpected or inexplicable. An employee who9se monthly emoluments Regular Second Appeal No.4764 of 2009 (O&M) : 4 : are, for instance Rs.20000/- receives in a given month, a sum of Rs.30000/- instead of Rs.20000/-. Such a payment may be purely accidental and erroneous arising out of an un-intended mistake. 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, if he is not lawfully entitled to the same. Our answer to this is in the affirmative. Such a case may not fall in category (i) as the employee has not committed any mistake but it is not a case that would fall in erroneous interpretation or application of rule. It is a case where by reason of sheer neglect of a functionary of the State Government, a payment that is undeserved payment that he has received. We say so because in our opinion, once the undeserved payment came to his notice, every employee is under an obligation to verify the reason for the same and act in a manner that is fair and equitable. Appropriation of a payment which the employee had no reason to expect or accept would in such a case be dishonest. And one who is dishonest cannot take shelter behind equity. We cannot for obvious reasons exhaustively enumerate situations where such payments are received and can be lawfully recovered. All that we propose to point out is that while generality of the cases would fall in category (i) and (ii), some freak cases like the one in category (iii) that we have been able to conceive, may need to be dealt with independently Regular Second Appeal No.4764 of 2009 (O&M) : 5 : depending upon whether the employee can be attributed the knowledge that the payment was undeserved and whether the duty to verify the factual position and refund the amount when the same came to his notice could be read into his duty as an employee of the State or its instrumentalities.” Thus, the Full Bench was conscious of a situation like the present in hand and as such held that in such cases, the basic principle of non-recovery in the absence of fraud or misrepresentation would not apply to the facts situation of the present case. No substantial question of law, thus, arises in this case. The Regular Second Appeal is dismissed. March 04, 2009 ( RANJIT SINGH ) ramesh JUDGE