CWP No. 1372 of 2008. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 1372 of 2008. [O&M] Date of Decision: 12th July, 2010. PSEB Employees Federation [AUITC] Petitioner through Mr. Dinesh Kumar, Advocate Versus Punjab State Electricity Board & Ors. Respondents through Mr. H.S.Grewal, Advocate. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 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. 1372 of 2008 and 20104 of 2009 as common issues are involved in these cases. For the sake of brevity, the facts have been extracted from CWP No. 1372 of 2008 in which the PSEB Employees Federation seeks quashing of the orders dated 29.08.2007 [Annexure P-10] and dated 4.5.2000 [Annexure P-11] whereby the additional pay granted to a set of employees of the Punjab State Electricity Board as per clause [iii] of the order dated 15.06.1999 [Annexure P-4] is sought to be adjusted against their future increments and as a consequence thereto, recovery of the alleged excess payments is also sought to be effected from these employees. [2]. Shorn of the details, suffice it to note that the petitioner Association is representative of the employees who were working on Anandpur Hydel and Mukerian Hydel Projects under the CWP No. 1372 of 2008. ::-2-:: administrative control of the Irrigation Department but were funded by the respondent – PSEB. The administrative control of both the Projects along with the employees was transferred to the Board vide notification dated 06.07.1993 [Annexure P-2]. As there was a dispute with regard to the pay fixation of the transferred employees after their absorption in the PSEB, the following statement came to be made before the Hon'ble Supreme Court in SLP[Civil] No. 10392 of 1994 [Mehanga Ram & Ors. V State of Punjab & Ors.] on behalf of the Board:- “In furtherance to the statement made by him on July 28, 1995, the learned Advocate General further states that the salaries and allowance which were being paid to the employees who have been offered alternative employment shall be protected at the new place of employment”. [3]. In order to effectuate the afore-stated statement, the Finance Secretary of the respondent-Board issued a Circular dated 15.6.1999, Para 2 whereof being relevant, reads as follows:- “2. The pay of all such employees already fixed/to be fixed in the scales revised by Punjab Government with effect from 1.1.1996, to which they were entitled till the date of their absorption in our main stream, shall be re- fixed in these scales with effect from 1.4.1998 in the manner indicated below:- [i] if the minimum of the revised pay scales is more than the pay drawn by the worker in Govt. pay scale as on 31.3.98, his pay shall be fixed at the minimum of the new revised scale. [ii] if the pay of the worker as on 31.3.98 is equal to the scale available in the revised pay scale sanctioned by the Board, his pay shall be fixed at CWP No. 1372 of 2008. ::-3-:: the same stage. [iii] if pay drawn by the worker as on 31.3.98 is higher than the minimum of the revised pay scale or falls in between two stages, his pay shall be fixed at the lower stage and the difference shall be treated as additional pay as per statement as Annexure 'B' [iv] if the pay drawn by any worker exceeds the maximum of the revised scale, the excess portion be protected by treating it as personal pay to be absorbed in future increment and shall be reckoned as pay for all purposes”. [4]. The pay of the members of the petitioner Association [as per their details given in Annexure P-1] was accordingly fixed as per clause [iii] and [iv] above and pursuant thereto, most of them have been drawing the 'additional pay' over and above the pay fixed at the lower stage. [5]. The respondent Board has now reviewed the afore-stated Circular dated 15.06.1999 [Annexure P-4] and has decided that the 'additional pay' in terms of clause [iii], reproduced above, was required to be adjusted against the future increments. It has been accordingly construed that the employees of the erstwhile two Projects have been paid in excess and are liable to the consequential recovery. [6]. Aggrieved, the petitioner-Federation has approached this Court. The respondents have filed their counter-affidavit. [7]. I have heard learned counsel for the parties and perused the records. [8]. It is urged on behalf of the petitioner that the Circular dated 15.06.1999 [Annexure P-4], was issued by the respondents in CWP No. 1372 of 2008. ::-4-:: consonance with and to honour their statement and undertaking given before the Hon'ble Supreme Court in Mehanga Ram's case [supra] and therefore the subsequent administrative decision, if any, could not have been given retrospective effect to take away the benefit of pay protection and fixation already granted to the employees. It is also urged that the recoveries are sought to be effect without issuing any show cause notice to the affected employees in violation of the principles of natural justice. The petitioner Association also urges that in no circumstance, recovery can be effected from the petitioners as neither they had mis-represented the facts nor played any fraud or deceived the authorities to secure the monetary gains. [9]. Learned counsel for the respondent Board, on the other hand would urge that clause [iii] of the Circular dated 15.6.1999 can not be given effect unless the 'additional pay' was adjusted against the future increments on the same analogy as has been followed in the case of 'personal pay' under clause [iv] above. It is argued that any other interpretation would lead to discriminatory consequences amongst the similarly placed employees. [10]. Having given my thoughtful consideration to the issues involved, it appears that the writ petitions deserve to succeed on more than one counts. The petitioners were initially employed on the Anandpur Hydel and Mukerian Hydel Projects. They have been absorbed in terms of the policy decision whereby the administrative control of Projects was transferred to the Board. The employees of the two Projects by themselves constituted a separate and distinct class incomparable with those employees who joined the Board from the very inception of their service careers. The record clearly unfolds CWP No. 1372 of 2008. ::-5-:: that the pay scale/emoluments drawn by the petitioners while they were serving in the two Projects were higher than their counter-parts in the Board. It is for that reason only that the Circular dated 15.6.1999 was issued in order to minimize the hardship of the absorbed employees by enabling them to draw the 'additional pay' or 'personal pay' to the extent of difference between their emoluments before and after their absorption in the Board. The respondents having taken a conscious decision for pay fixation of the absorbed employees can not now turn around and review the same and that too retrospectively on an hypothesis that the other employees of the Board might also ask for the grant of 'additional pay' or 'personal pay' in the same manner. [11]. As noticed earlier, the employees of the two Projects constituted a separate and distinct class. The petitioner Association appears to be right in contending that once the pay had been fixed and the employees were allowed to draw 'personal pay' or 'additional pay', as the case may be, such benefit could not have been withdrawn unilaterally without issuing any Show Cause as the impugned action undoubtedly visits them with civil consequences. [12]. To be fair to the respondents, it appears that subsequently, notices were issued to some of the employees but such like post-decisional hearing does not meet the requirement of principles of natural justice. The impugned action can not, thus, sustain on this count also. [13]. That apart, the case of the absorbed employees would undoubtedly fall within the exceptional clause carved out by a Full Bench of this Court in Budh Ram v State of Haryana & Ors., 2009 CWP No. 1372 of 2008. ::-6-:: [3] PLR, 511, wherein it has been ruled that if an employee is not guilty of playing fraud with the authorities or mis-representing the facts and has been enriched due to mis-interpretation of the Rules or a policy-circular, then no recovery can be effected from such an employee. The view taken by this Court in Budh Ram's case [supra] has been reiterated by the Hon'ble Supreme Court in a recent judgment in Registrar, Cooperative Societies & Ors. V Ishar Khan & Ors. [2004] 1 SCC, 440. In this view of the matter, no recovery can be allowed to be effected from the concerned employees. [14]. For the reasons afore-stated, the writ petitions are allowed; the impugned orders dated 29.08.2007 [Annexure P-10] and 04.05.2000 [Annexure P-11] are hereby quashed and it is held that the employees of Anandpur Hydel and Mukerian Hydel Projects who have been absorbed in the PSEB would be entitled to the pay fixation in terms of the Circular dated 15.6.1999 [Annexure P-4]. It is further directed that in case any recovery has been effected from these employees, the same shall be refunded to them within a period of four months from the date a certified copy of this order is received. [15]. Disposed of. Dasti. July 12, 2010. ( SURYA KANT ) dinesh JUDGE