IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Regular Second Appeal No.3463 of 2007 Date of Decision: July 16, 2008 Pepsu Road Transport Corporation, Patiala & Another .....APPELLANT(S) VERSUS Surinder Singh .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Balwinder Singh, Advocate, for the appellants. Mr. S.K. Rattan, Advocate, for the respondent. . . . AJAI LAMBA, J (Oral) The facts are not in dispute. The respondent-plaintiff joined the service in year 1971 and served the appellant- defendants till 2002. At the time when the retiral benefits were being calculated, it seems that it came to light that at the time of refixation of pay in the year 1974, some additional amount was allowed to be drawn by the plaintiff. Under these circumstances, when the retiral benefits were to be released, a sum of Rs.89,743/- was sought to be recovered. This action came to be challenged by way of civil suit which has RSA No.3463 of 2007 [2] been decreed. The defendants have carried this regular second appeal against judgment of affirmance. Learned counsel appearing for the appellants has very fairly stated that there has been no misrepresentation on behalf of the plaintiff in the wrong fixation of pay. However, it has been contended that it was a genuine mistake on the part of the officials of the Department which resulted in wrong fixation and the plaintiff drew more than what was due towards him. Learned counsel for the appellants has also pointed out that show cause notice and personal hearing were given to the plaintiff and therefore, principles of natural justice were duly followed and there was no illegality in the action of the Department in making recovery from the retiral benefits. On the issue, learned counsel has cited Om Parkash Bhardwaj vs. State of Punjab, 2004(1) RSJ 328. Learned counsel appearing for the respondent-plaintiff has contended that as per the case of the appellant-defendants, refixation of pay dates back to the year 1974. It is only at the stage of retirement i.e. after 28 years of the refixation, that the plaintiff is being victimised and substantial amount is being recovered from his retiral benefits which is not permissible in law or in equity. I have heard the learned counsel for the parties and have considered the only issue raised by the counsel for the parties. RSA No.3463 of 2007 [3] In Om Parkash Bhardwaj’s case (supra), the issue before this Court was on a different set of facts. The petitioner in the writ petition had not passed the departmental examination which was mandatory within three years of the appointment of an incumbent or within the extended period. If an incumbent fails to pass the exam within the said period, then, it was also mandatory that he would stop earning future grade increments till such time he passes the examination. Interpreting the rule, it has been held in Om Parkash’s case (supra) that since the petitioner was not even eligible, and as per Rule 9.16 of the Punjab Civil Services Rules, Volume II, recovery and adjustment of Government dues could be made. The petitioner had been communicated the specific reasons for issuing the impugned orders by way of endorsement. The petitioner failed to submit representation against the order which led the department to believe that he had nothing to say in that regard (as is made out from Para 3 of the judgment). The impugned order had been passed in close proximity of time of the wrong drawal of increment. The facts clearly therefore would not apply to the facts of the present in so much as for 28 long years, the petitioner was allowed to draw the benefits of refixation. It is not conceivable that for 28 years, the matter was over-looked. The appellant- defendants were required to remain vigilant in regard RSA No.3463 of 2007 [4] to refixation and the benefits accruing therefrom being given to the employee. The afflux of time itself disentitles the defendants to raise the issue after 28 years. In Para 10 of the judgment rendered by the Trial Court, the entire issue that relates to the facts of the case has been addressed. I find that no show cause notice or opportunity of hearing was afforded to the respondent-plaintiff before passing of the order of refixation. The notice that was issued, was before passing the order of recovery. No reason has been recorded as to how the plaintiff was drawing excess salary since 1974. The impugned order has been passed after retirement of the plaintiff, however, with effect from 1974. In view of the facts noticed above also, Om Parkash Bhardwaj’s case (supra) would have no application. Somewhat similar issue has been considered by the Hon’ble Supreme Court of India in Sahib Ram vs. State of Haryana & Others, 1995 Supp. (1) Supreme Court Cases 18. In the said reported case, the appellant did not possess the required educational qualifications and therefore, was not entitled to relaxation. Relaxation however was granted. From the time of grant of relaxation, the appellant had been paid salary on the revised scales. This however was not on account of any representation made by the appellant. It was rather on account of wrong construction made by the Principal for which the appellant could not be held to be at fault. Under these RSA No.3463 of 2007 [5] circumstances, it was held that the amount paid be not recovered from the appellant. Likewise in P.H. Reddy & Others vs. N.T.R.D. & Others, 2002(2) RSJ 265, the direction of the appropriate authority requiring reimbursement of excess amount was annulled by the Hon’ble Supreme Court of India. In Shiv Kumar vs. State of Punjab & Others, 2004(2) RSJ 155, the Division Bench of this Court held the following in Para 5:- “5. We have heard learned counsel for the parties. We are satisfied that the sole issue relating to recovery of excess amount paid to the petitioner stands determined in favour of the petitioner in view of the judgment rendered in ASI Amrik Singh vs. State of Punjab & Others (C.W.A. No.15762 of 2003, decided by this Bench on 5.12.2003), specifically on account of the fact that the said excess amount is not alleged to have been paid to the petitioner on account of some misrepresentation made by him.” In view of the facts and circumstances given hereinabove and the case law discussed, no substantial question of law arises for consideration so as to call for interference. No illegality can be traced in the judgments passed by the Courts below as the reasons given for decreeing the suit are legally tenable. The appeal is dismissed. (AJAI LAMBA) July 16, 2008 JUDGE avin