IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 13672 of 2009 Date of Decision: 26.8.2010. Darshan Lal Sharma --Petitioner Versus State of Haryana and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. K.L. Dhingra, Advocate for the petitioner. Mr. R.D. Sharma, D.A.G., Haryana for respondent no.1. Mr. Mohnish Sharma, Advocate for Mr. Narender Hooda, Advocate for respondents no.2 to 6. *** PERMOD KOHLI.J (ORAL) Petitioner was initially appointed as T-Mate on 25.4.1977. He was granted A.C.P scale of Rs. 5000-7850/- w.e.f. 1.12.1998 vide order dated 13.12.2004. In the meantime, he has been promoted as Tech.-I (class III post) vide order dated 7.7.2004 in the same pay scale of Rs. 5000-7850/-. The petitioner retired on 31.7.2008 on attaining the age of superannuation. At the time of his retirement his basic pay was Rs. 6350/- in the pay scale of Rs. 5000-7850/-. After his retirement the Chief Accounts Officer of U.H.B.V.N raised objections regarding the promotion of the petitioner w.e.f. 7.7.2004 for not passing the Safety Code Test. The Superintending Engineer, Stores & Workshop, U.H.B.V.N, Dhulekot vide letter dated 4.12.2008 (Annexure P-2) informed the pay fixation office of the U.H.B.V.N that the petitioner was not required to pass the Safety Code Test in view of the nature of his duty in his office. Despite the aforesaid communication, respondents have issued memo dated 12.1.2009 asking the CWP. No. 13672 of 2009 -2- petitioner to deposit an amount of Rs.32,000/-, otherwise this amount will be recovered from the gratuity amount of the petitioner. It is stated that the petitioner was forced to deposit this amount for release of his pensionary/retiral benefits. Not only that the recovery of Rs.32,000/- has been made from the petitioner even the pay of the petitioner has been reduced from Rs 6350/- to Rs. 5750/- by reducing four increments paid to the petitioner for not passing the Safety Code Test. The stand of the respondents in the reply is same as in the impugned memo (Annexure P-4). Respondents have relied upon a circular dated 22.9.1989 relating to Safety Code Examination instructions. Under these instructions following categories of officers were required to pass the Safety Code Test:- “ (i) A.Es. (ii) Shift Engineers. (iii) L.Ss. (iv) Control Room Operators. (v) SSOs (Sub State Operators). (vi) Machine Attendants. (vii) Sub Station, Attendants. (viii) Electrical Mistries. (ix) Electrical Forman. (x) Electrical Overseers. (xi) Electrical Winch Drivers. (xii) Electrical Drivers. (xiii) Electrical Welders & Asstt. Welders. (xiv) Cable Jointers.” CWP. No. 13672 of 2009 -3- This circular was followed by a memo dated 6.4.1991. Based upon the aforesaid instructions, it is contended that the nature of the duties did not require passing of the test. This contention of the petitioner is also supported by a letter written by the Superintending Engineer, Stores & Workshop followed by letter dated 14.11.2008 from the Executive Engineer collectively. It is mentioned in both the letters/recommendations that the petitioner was working in General Workshop and thus was not required to pass the test. There is no rebuttal to this aspect in the reply. Thus, the contention of the respondents that the petitioner was required to pass the Safety Code Test is not supported by any rule or regulation and the instructions relied upon do not cover the case of the petitioner. Apart from the above, it is not the case of the respondents that the petitioner had been granted the additional increments on account of any misrepresentation or fraud. The controversy is otherwise squarely covered by a Full Bench judgement of this Court in case of (Budh Ram and others vs. State of Haryana and others) has held as under:- 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; Issue No. ii) has been answered with the following observations:- “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 CWP. No. 13672 of 2009 -4- 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, inequitable and harsh for the 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…… 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….” In view of the above, this petition is allowed. Impugned order (Annexure P-3) is hereby quashed and the respondents are directed to re- determine the pensionary/retiral benefits of the petitioner and release the amount within a period of three months. The amount of Rs.32,000/- recovered from the petitioner shall also be refunded/released within the aforesaid period. (PERMOD KOHLI) JUDGE 26.8.2010. lucky