CWP No. 17034 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 17034 of 2010 DATE OF DECISION: September 21, 2010 Sudarshan Kaur Walia .........PETITIONER(S) VERSUS State of Punjab and others ......RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. Sameer Sachdeva, Advocate, for the petitioner(s). AJAI LAMBA, J. (ORAL) 1. This petition has been filed under Articles 226 & 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing orders Annexures P-3, P-4 and P-5 dated 25.06.2010, 14.08.2010 and 24.08.2010 respectively. 2. Perusal of order Annexure P-3 indicates that pay of the petitioner, who was serving as a Lecturer in college, has been refixed. Vide order Annexure P-4, Office of Principal, Government College for Women, Patiala issued letter as a consequence of order passed by Director, Education Department, Colleges, Punjab dated 16.07.2010 directing release of pay as per refixed norms. Perusal of order Annexure P-5 indicates that on refixation of pay, recovery has been ordered. 3. Learned counsel for the petitioner contends that the refixation of pay has been done without giving a hearing to the petitioner. Certain civil CWP No. 17034 of 2010 2 rights are vested in the petitioner on fixation of pay. The pay could not have been revised downwards without issuing notice to the petitioner. 4. Notice of motion. 5. On the asking of the Court, Shri B.S. Chahal, Deputy Advocate General, Punjab, accepts notice on behalf of the respondents. 6. Requisite number of copies of the petition have been handed over to learned counsel for the respondents. 7. Learned counsel for the parties pray that the matter be disposed of at this stage itself, in view of peculiar facts and circumstances of the case. 8. Perusal of the order indicates that the petitioner was not heard be- fore passing of the impugned orders. The orders have been passed at the back of the petitioner. Downward fixation of pay certainly affects the right of a person and, therefore, an opportunity of hearing was required to be given. Unilaterally the action could not have been taken as civil rights of the petitioner have been affected. 9. Be that as it may, the petitioner has already sent a legal notice dated 24.08.2010 Annexure P-6 to the respondents. It is for the respondents at the first instance to consider the matter in the light of the legal notice sent by the petitioner. 10. So far as recovery is concerned, the issue has been considered by Full Bench of this Court while dealing with Budh Ram and others v. State of Haryana and others, 2009(3) PLR 511. 11. The following needs to be extracted from Budh Ram's case (su- pra), for consideration of the issue raised in this petition:- “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 com- CWP No. 17034 of 2010 3 mitted by the authorities, they are entitled to recover the bene- fit that has been received by the employee on the basis of any such erroneous grant. We say so primarily because if the em- ployee 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, in- equitable and harsh for the Government to direct recovery of the excess amount simply because on a true and correct inter- pretation 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 accu- mulation of his resources and savings. Such a benefit may of- ten be utilized on smaller luxuries of life which the employee and his family may not have been able to afford had the bene- fit 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 ex- penditure 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 interpreta- tion nor have they committed any fraud, misrepresentation, de- ception to obtain the grant of such benefit, the benefit so ex- tended may be stopped for the future, but the amount already paid to the employees cannot be recovered from them.” 12. Relying on Budh Ram's case (supra), this Court in Kaur Chand's case (supra), has held in the following terms:- “(6). Following the dictum in Budh Ram's case (supra), the writ petition is allowed in part; the action of the respondents in ordering recovery of the excess payments received by the peti- tioner as a result of Stepping-up of his pay or grant of ACP is hereby quashed. However, the impugned order(s) to the extent of re-fixation of his pay and consequential re-determination of the retiral benefits are upheld. The recovery, if any, already made from the petitioner shall be refunded to him within a pe- riod of four months from the date of receipt of certified copy of this order. (7). Since the respondents have not filed any counter-reply/af- fidavit, it shall be open to them to verify the records and if it is found that the petitioner had actually misrepresented the facts and/order played fraud etc. to gain the monetary benefits, to CWP No. 17034 of 2010 4 seek review of this order within a period of six months from the date of receipt of a certified copy of this order.” 13. This petition in regard to challenge to recovery is accordingly disposed of to enable the respondents to consider whether the petitioner has played fraud and misrepresented facts for initial fixation of pay in terms of judgment rendered in Kaur Chand's case (supra), portion whereof has been extracted above. In case the respondents find that the petitioner had not played fraud and had not misrepresented facts, it is held that the respondents shall have no right to effect recovery from the petitioner. In case any recovery has been effected, the amount so recovered would be refunded back to the petitioner. The necessary decision be taken by the respondents within a period of 4 months of receipt of certified copy of the order. 14. The respondents are also directed to take a decision afresh in challenge to refixation after considering the averments made on behalf of the petitioner in the legal notice Annexure P-6 dated 24.08.2010 within the period stipulated above viz. 4 months of receipt of certified copy of the order. 21.09.2010 (AJAI LAMBA) shivani JUDGE 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the Digest?