IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.10672 of 2009 Date of Decision : February 22, 2010. Hardeep Kaur .....Petitioner versus State of Punjab and others .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Dr.M.L.Sachdeva, Advocate, for the petitioner. Ms.Charu Tuli, Senior DAG, Punjab. Mr.Harish Chander Gupta, Advocate, for respondent No.6. -.- 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? --- Surya Kant, J. (Oral) This order shall dispose of Civil Writ Petition Nos.10672, 17685, 19807, 20008, 20084 of 2009, 48, 75, 760, 824, 1250, 2421, 2515 and 3104 of 2010 as common questions of law and facts are involved in these cases. (2) The petitioners are drawing family pension on account of unfortunate death while they were in service, of their spouse and/or sole bread earner upon whom they were dependents. The petitioners used to draw the benefit of Dearness Allowance on family pension which has since been withdrawn. (3) In order to understand the controversy involved, the facts are being extracted from Civil Writ Petition No.10672 of 2009. (4) The husband of the petitioner, namely, Sh.Jasmail Singh was C.W.P.No .10672 of 2009 2 working as clerk in the office of the Chief Engineer, Public Health (G.W.) Division, Patiala, when he unfortunately died in harness on 21.3.2003. The petitioner was sanctioned family pension vide memo dated 29.4.2003 (Annexure P-3). The daughter of the petitioner, namely, Ms.Navneet Kaur, was meanwhile appointed as a Clerk on compassionate grounds under the ex-gratia policy of the State. The petitioner used to draw a sum of Rs.9978/- as family pension including the dearness allowance and also the dearness pay as its component, which was being paid to her through respondent No.6-Bank, namely, the Bank of India, Patiala Branch. (5) The petitioner's case is that in the year 2007, she came to know that her family pension has been reduced from Rs.9978/- to Rs.4288/- due to withdrawal of the benefit of Dearness Allowance. (6) It is not in dispute that under the Government Instructions, wherever the dependent-family member of a deceased employee has been employed on compassionate grounds under the ex-gratia policy, the widow or other dependent, who is getting the family pension, is not entitled to `dearness allowances' component i.e., only basic family pension is to be paid in such like cases. (7) Notwithstanding the appointment of her daughter as a Clerk on compassionate grounds, the petitioner was paid the family pension at its original rate which included the dearness allowance. The said allowance has now been suddenly stopped and withdrawn, as noticed above. The petitioner, therefore, represented the bank who in turn, informed her that a recovery of the excess payment towards dearness allowance and dearness C.W.P.No .10672 of 2009 3 pay, is required to be effected from her for the period from 20.3.2003 to 30.11.2006. (8) Aggrieved, the petitioner has approached this Court. (9) During the course of hearing, learned counsel for the parties are ad-idem that somewhat similar controversy has already been resolved by a Division Bench of this Court in favour of the family of the petitioners like the petitioner in Mukhtiar Singh versus State of Punjab, CWP No.891 of 2003, decided on 20.1.2004, holding as follows:- “The controversy in hand raises two issues, namely (1) whether the petitioners are entitled to dearness allowance on family pension, and (2) whether recovery could be effected in a situation wherein the recipients had not made any misrepresentation to the authorities. In so far as the first issue is concerned, the controversy in hand stands adjudicated upon by the Apex Court in HSEB and others 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 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 petitioner was not based on any misrepresentation at their hands. It is clear that dearness allowance was wrongly paid to the C.W.P.No .10672 of 2009 4 petitioners by the respondents unilaterally. That being so, in view of the decision rendered by the Apex Court in Sahib Ram versus State of Haryana and others, 1994 (S) SLR 753, we are satisfied that the recovery should not be effected from the petitioners....” (10) The Special Leave Petition preferred by the State of Punjab against the afore-said decision has also been dismissed by the Hon'ble Supreme Court. (11) The right to effect recovery from an employee of a monetary benefit to which he was not entitled to but was granted to him without any misrepresentation, fraud or deception on his part, has been recently considered by a Full Bench of this Court in Budh Ram and others versus State of Haryana and others, 2009 (3) S.C.T.333, wherein it is ruled that where an employee was not guilty of misrepresentation, fraud or deception and he received the monetary benefit under a mistake of any functionary of the State, such employee need not be called upon to refund such undeserved payment already received by him (12) Learned State counsel points out that the Government has already issued necessary instructions not to effect the recovery of dearness allowance from the family pension wherever it has already been drawn by the beneficiaries. However, recoveries are still being effected by the concerned banks only. (13) Counsel for the Banks, on the other hand, explain that the amount deducted by the Bank has been remitted to the State Government and therefore, the remitted amount need to be refunded by the State C.W.P.No .10672 of 2009 5 Government only. (14) Having heard learned counsel for the parties for some time, I am of the considered view that no recovery could be effected from the petitioners retrospectively owed of the excess payment for which they are at fault, Since the recoveries have been effected by the Banks concerned, they are directed to refund the recovered amounts to the petitioners, wherever, applicable, but without prejudice to the Banks' rights to finally settle their claim against the State Government. (15) Consequently, following the dictum in Mukhtiar Singh's case (supra) and Budh Ram's case (supra), the writ petitions are allowed in part; the recovery notice/decision taken by the respondent-bank to effect recoveries from the petitioner's dearness allowances/dearness pay from 20.3.2003 to 30.11.2006, is hereby quashed and it is directed that no recovery shall be effected from the petitioner and in case the respondents have already effected any such recovery from the petitioner, the same shall be refunded to her within a period of three months from the date of receiving a certified copy of this order. The respondents, however, shall be entitled to withdraw the benefit of dearness allowance from the family pension of the petitioners prospectively, i.e., from the date when the excess payment was detected and mistake rectified by the respondents. (16) Dasti. 22-02-2010 (SURYA KANT) Mohinder JUDGE