IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 13116 of 2009 DATE OF DECISION: August 26, 2009 Jugraj Singh and Another .........PETITIONER(S) VERSUS State of Punjab and Others ......RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. Padamkant Dwivedi, Advocate, for the petitioner. Ms. Charu Tuli, Sr. DAG, Punjab. AJAI LAMBA, J. (ORAL) This civil writ petition has been filed under Articles 226 and 227 of the Constitution of India directing the respondents to refund the recovery effected from the family pension of the deceased mother of the petitioners on account of excess payment of dearness allowance paid on her family pension. It has been pleaded on behalf of the petitioners that Smt. Ranjit Kaur, the mother of the petitioners was drawing pension on account of death of her husband Lt. Sh. Kewal Singh who died on 17.01.2000, while in harness. The petitioner no. 1 was given appointment on compassionate grounds on 31.12.2004 as a clerk in Punjab Roadways. The mother of the petitioners who was drawing family pension was being given dearness allowance on family pension. It seems that the payment of dearness C.W.P. No. 13116 of 2009 -2- allowance was against the instructions issued by the State of Punjab to the effect that wherein a family member is given appointment on compassionate grounds, dearness allowance would not be payable on the family pension to the surviving spouse It has been pointed out that since the mother of the petitioner has died, the petitioners are entitled to claim recovery of the dearness allowance already recovered from her pension in view of the judgment rendered by Division Bench in CWP No. 891 of 2003 titled Mukhtiar Singh and Others Vs. The State of Punjab and Others 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 dispute either the right of the petitioners to claim recovery of the amount paid nor has been able to distinguish the judgment rendered in Mukhtiar Singh's case (supra). Having considered the facts and circumstances given out above. I am of the opinion that the matter is covered by 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 Kaur (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 C.W.P. No. 13116 of 2009 -3- misconceived. The first contention of the petitioner is, therefore, not accepted. The second issue relates to the recovery of dearness 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.” So far as recovery is concerned, the matter would be covered by Full 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. In Budh Ram's case (supra), while considering the second C.W.P. No. 13116 of 2009 -4- 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:- “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 C.W.P. No. 13116 of 2009 -5- 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 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 dearness allowance recovered from the family pension of the deceased mother of the petitioners C.W.P. No. 13116 of 2009 -6- namely Smt. Ranjit Kaur 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?