Regular Second Appeal No.1906 of 2009 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: February 05, 2010 J.S.Parmar ...Appellant VERSUS State of Haryana & others ...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.K.L.Suneja, Advocate, for the appellant. Mr.Arvind Singh, Advocate, for respondent No.2. ***** RANJIT SINGH, J. The appellant is in Regular Second Appeal against the judgment and decree passed by Addl.District Judge, Chandigarh. The appellant had filed a suit seeking declaration that recovery of Rs.46,206/- and further direction for recovery of Rs.19,803/- by the respondents herein was wrong, arbitrary, illegal and invalid. The suit Regular Second Appeal No.1906 of 2009 (O&M) : 2 : filed by the appellant was decreed and he was held entitled to recover sum of Rs.46,206/- from the respondent and the recovery of the remaining amount was also ordered to be cancelled. The appellant was working as Superintendent in the office of Engineer-in-Chief in the pay scale of Rs.2000-3500. He was selected as Superintendent by the State Election Commission, Haryana where he joined on deputation on 30.9.1994 as Superintendent in the same pay scale. The appellant, at that time, was drawing basic pay of Rs.3200 plus Rs.200 as special pay and another sum of Rs.72/- as personal pay. On 10.5.1995, the State Election Commission intimated the Irrigation Department that the appellant was to be treated on transfer basis and not on deputation. 5% incentive of pay was given subject to maximum of Rs.100/- to the appellant, which, statedly was not paid by the State. Subsequently, the post held by the appellant was re-designated as Assistant State Election Commissioner in the same pay scale. At the time of retirement on 30.4.1996, the appellant was drawing a total salary of Rs.10,309/-. It appears that the State Election Commissioner required the services of the appellant even after his retirement. He was accordingly requested to continue as can be seen from the order dated 1.8.1996. The appellant was appointed as Assistant State Election Commissioner on contract basis for a period of one year w.e.f.1.5.1996. He claims that the terms and conditions of the contract were not settled and these were arbitrarily laid down. One of the Condition (No.2) provided that the plaintiff was paid salary of Rs.7601/- per month w.e.f.1.5.1996 with increase of dearness Regular Second Appeal No.1906 of 2009 (O&M) : 3 : allowance from time to time. It was increased to Rs.8757/- per month in February, 1998. On 7.1.1998, Haryana Government revised the pay scale of its employees w.e.f.1.1.1996, as per which the pay scale of Superintendent in Haryana Civil Secretariat was revised to Rs.6500-200-8500-EB-200-10500 plus Rs.200/- special pay. The same scale was made applicable to the Superintendent/Assistant State Election Commissioner in the State Election Commission office on account of the revision in the pay scale. The pay of the appellant was accordingly fixed at Rs.10,100/- plus Rs.200/- special pay plus Rs.72/- as personal pay w.e.f.1.1.1996. This was so ordered through an office order dated 10.9.1998. The annual increment as due to the appellant was also granted w.e.f.1.4.1996 and his pay was raised to Rs.10,300/- plus afore-stated allowances. A sum of Rs.5306/- was paid as arrears. Since the appellant was appointed as Assistant State Election Commissioner on contract basis from 1.5.1998 to 30.4.1999, he wrote to the Commissioner that the terms and conditions Nos.1 & 2 were not acceptable to him and prayed for fixing his salary of Rs.9,000/- per month. No decision, however, was conveyed to him. He accordingly continued to receive the salary, which, according to him, resulted in reduction in his salary. He again wrote on 29.4.1999 to the State Election Commission that he would not be able to continue with the job in the Commission under such situation. The State Election Commission while sending the pension case of the appellant deducted a sum of Rs.46,206/- calculated on the basis of re-fixation of his pay as per order dated 30.10.1998 passed by State Election Commission, Haryana. This amount was deducted from his Regular Second Appeal No.1906 of 2009 (O&M) : 4 : pension without affording any opportunity to show cause as to how this deduction was required to be made. The appellant accordingly filed a representation on 21.8.2001. The State Election Commission (defendant No.2) re-fixed the pay of the appellant on revision of his pension in terms of Financial Department notification dated 6.7.2000 and issued an endorsement dated 8.12.2002 and asked the appellant to deposit an amount of Rs.19,803/-, which was statedly paid in excess to him for the period from 1.5.1996 to 14.7.1999. The appellant also filed another representation, but no action was taken thereon. He accordingly filed the present suit. The respondents herein contested the suit filed by the appellant. They also raised certain preliminary objections. It is stated that after his retirement, the appellant was taken on contract basis for a period of one years, which was extended from year to year basis on the same terms and the last extension was from 1.5.1999 to 14.7.1999. As per the clause of the contract, the appellant was allowed the pay on simple formulation of last pay drawn by him at the time of his retirement minus gross amount of pension. The initial pay fixed plus gross pension was not to exceed his pre-retirement pay. It is then stated that at the time of retirement, the appellant was drawing basic pay of Rs.3400/- per month in the pre-revised pay scale of Rs.2000-3500 plus Rs.200/- per month as special pay plus Rs.72/- as personal pay and as such he was drawing Rs.3672/- per month plus dearness allowance and other emoluments. After retirement, the pension of the appellant was fixed at Rs.1791/- per month and the pension equivalent to gratuity worked out to Rs.917/-. Accordingly, his pay in the Commission was fixed at Rs.692/- per Regular Second Appeal No.1906 of 2009 (O&M) : 5 : month w.e.f.1.5.1996. The calculations to fix his pay at Rs.692/- as made in a way that from his pre-retirement pay of Rs.3400/-, the pension of Rs.1791/- plus pension equivalent to gratuity of Rs.917/- were reduced. He was allowed Rs.200/- as special pay and Rs.72/- as a personal pay. It is stated that the appellant never raised any objection about the said fixation. On acceptance of 5th pay commission, the pay of the appellant was revised and fixed at the state of Rs.10,100/- w.e.f.1.1.1996 and the next date of increment, i.e., 1.4.1996, which was raised to Rs.10,300/- per month. His pension was also revised to Rs.4632/- per month w.e.f.1.5.1996 and an amount of Rs.5306/- was paid as arrears to him on account of the revision of pay scale. A sum of Rs.85,230/- was credited in the pension account of the appellant in the Punjab National Bank as payment of arrears at the rate of Rs.2841/- per month. His pay was also fixed in terms of Condition No.2 of the contractual re-employment at Rs.4278/- on 30.10.1998. Subsequently, his pay was re-fixed w.e.f.1.5.1996 since the revision of the pay scale was allowed with retrospective effect. His pension was also revised on the basis of revision of pay scale with retrospective effect. It is on this basis contended that recovery statement in the form of due and drawn showing the amounts due to him, paid to him and the difference of emoluments for the period from 1.5.1996 to 14.7.1999 was prepared and a sum of Rs.66,009/- became due as a recovery from the appellant. It is in this background, that a sum of Rs.46,206/- was recovered on 23.8.2002 and sum of Rs.19,803/- was directed to be recovered from the appellant to which he did not raise any objection. Regular Second Appeal No.1906 of 2009 (O&M) : 6 : Without going into controversy whether the respondents are justified in directing this recovery from the pension of the appellant or not, the present Regular Second Appeal would call for interference on a short ground as a substantial question of law would arise whether the payment of excess amount paid to an employee without any misrepresentation or fraud could be recovered in the manner it is done that too from his pension? Counsel for the appellant in support would refer to the case of Sahib Ram Vs. The State of Haryana and others, 1994(5) SLR 755 and Shyam Babu Verma and others Vs. Union of India and others, 1994(1) SLR 827, where it has been clearly held that no recovery can be effected for an excess payment made if there has been no misrepresentation or fraud on the part of an employee. Mr.Arvind Singh appearing for respondent No.2 very vehemently submits that the principle of law laid down in the Full Bench decision noted above would not apply in the present case as it was a case of contractual employment and as such it will not be possible to say that the appellant was not responsible or aware of the excess payment being made to him. I am afraid, I cannot accept above line of reasoning advanced by the counsel. The excess payment apparently is not only on account of the period when the appellant was on a contractual employment. Prior to his contractual employment, he was on a regular appointment in the State Election Commission. His pay was also revised pertaining to this period as well for which some arrears were also paid to him. There is no indication or nothing has been brought to my notice that while granting the arrears or re-fixing the Regular Second Appeal No.1906 of 2009 (O&M) : 7 : pay of the appellant either on re-employment or during his contractual period there was any misrepresentation or fraud on the part of the appellant. In this background, to say that the principle of law as laid down in the Full Bench decision of this court would not apply here cannot be accepted. In my view, this is a substantial question of law, which is fully settled and nothing is pointed out which would require the Court to take any different view. In addition, the action to recover amount without issuing any notice that too from pension would be an issue in itself calling for examination. Accordingly, the prayer and the submissions made by the counsel for respondent No.2 are hereby rejected. The consequence is that the judgment and order under appeal cannot be sustained. The same is set-aside. The judgment and decree passed by the trial court is restored. The necessary declaration and decree-sheet be prepared by this court accordingly. It is held that the recovery ordered to be effected or the recovery which has been made from the pension of the appellant shall stand set-aside. February 05, 2010 ( RANJIT SINGH ) ramesh JUDGE