Regular Second Appeal No.5074 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH -.- Regular Second Appeal No.5074 of 2010 (O&M) Date of Decision: December 23, 2010 Punjab National Bank ---Appellant versus Dharam Pal ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr. Arvind Rajotia, Advocate, for the appellant *** GURDEV SINGH, J. C.M.No. 14940-C of 2010 Heard. For the reasons disclosed in the application, which is supported by an affidavit, the period for making up the deficiency in the Court fee is extended by a fortnight. Application is disposed of accordingly. C.M.No. 14942 C of 2010 Heard. For the reasons disclosed in the application, which is supported by an affidavit, the delay in re-filing the appeal is condoned. Regular Second Appeal No.5074 of 2010 (O&M) -2- Application is disposed of accordingly. C.M.No. 14941 C of 2010 Heard. Allowed subject to all just exceptions C.M.No. 14943 C of 2010 and RSA No. 5074 of 2010 The appellant/defendant – Punjab National Bank, has preferred this second appeal against the judgment and decree dated 19.2.2009 passed by District Judge, Karnal, vide which he dismissed the first appeal preferred by the defendant against the judgment and decree dated 28.3.2008 passed by the Civil Judge (Sr. Division) Karnal, partly decreeing the suit of the respondent/plaintiff for declaration to the effect that the letter dated 19.4.2004 issued by the defendant is illegal, null and void, so far as it relates to the recovery of excess payment of salary made to the plaintiff prior to 19.4.2004, while dismissing his suit for declaration to the effect that this very order dated 19.4.2004 fixing his pay at `860/- instead of `980/- w.e.f. 19.5.1988 is illegal, null and void and not binding upon him. The plaintiff filed suit for declaration to the effect that order dated 19.4.2004 passed by Regional Manager of the bank thereby fixing his pay at `860/- w.e.f. 7.1.1989, the date of joining the bank, and effecting recovery of alleged excess payment from 13.3.92 onwards is illegal, null and void, not binding upon him against the rules of natural justice and mala fide with the consequential relief of permanent injunction restraining the defendant from refixing his pay from `980/- per month to `860/- w.e.f. 7.1.1989 and effecting the alleged excess amount recovery from him under the garb of the said order. He pleaded in his plaint that earlier he served the Indian Army Regular Second Appeal No.5074 of 2010 (O&M) -3- and was an ex-servicemen. He joined the service with the bank as guard and joined his duties on 7.1.1989. His basic pay was fixed at `980/- per month as the same was protected under circulars dated 2.2.1980 and 25.8.1981 by giving benefit of service rendered by him in the Indian Army. Letter dated 13.3.1992 was issued whereby his salary and that of similarly situated employees was ordered to be refixed. In compliance with that letter his basis pay was re-fixed at `860/- per month instead of `980/- from the date of joining the service and the excess payments made to him were ordered to be recovered. That act of the bank was challenged before this Court by filing a writ petition, which was allowed vide order dated 19.8.1999. The act of the bank reducing his basic pay and that of the similarly situated employees was struck down. However, the bank was given the liberty to take fresh decision after following the due procedure established under law. Show cause notice dated 9.2.2004 was issued to him and the impugned letter dated 19.4.2004 was passed in which earlier decision taken in the year 1993 was reiterated. This act of the bank is illegal, null and void as the salary of an employee cannot be reduced retrospectively. He was not instrumental in getting his pay fixed at higher level. The bank was requested to withdraw the said letter and to ignore the same, but his request was not accepted. The suit was contested by the defendant. It was admitted in the written statement that the the basic pay of the plaintiff was so reduced and that order was struck down by this court and bank was directed to follow the procedure established by law. Other contentions made in the plaint were denied. It has been pleaded that the letter dated 19.4.2004 was issued after Regular Second Appeal No.5074 of 2010 (O&M) -4- taking into consideration the circulars issued by the Government of India. The plaintiff has no cause of action to file this suit and Civil Court has no jurisdiction to entertain the same. As the plaintiff has alternative remedy so the suit is not maintainable. The same is bad for non-joinder of Central Government, which is a necessary party. On the pleadings of the parties, issues were framed and they were called upon to produce their evidence in support of their respective cases. After taking into consideration the evidence, so produced by them and hearing counsel on their behalf, the learned trial court recorded findings on the issues and partly decreed the suit for permanent injunction, as aforesaid. I have heard counsel for the defendant. It has been submitted by counsel for the defendant that the present case is squarely covered by the Full Bench judgment of this Court reported in 2009(3) SCT 333( Budh Ram and others v. State of Haryana and others). According to him, three distinct cases were enumerated in the said judgment and the case of the plaintiff is covered by the cases mentioned in category-II. It was as a result of the bona fide mistake committed by the bank that the benefit of the protection of his pay was allowed and in view of the letter, subsequently issued by the Government of India, that benefit was withdrawn and as such, any amount paid to him, in excess, is liable to be recovered. It is not the case of the defendant, as pleaded in the written statement or projected in view of the evidence produced, that the excess payments were made to the plaintiff under some bona fide mistake. It was on account of the change in the policy, contained in different letters issued Regular Second Appeal No.5074 of 2010 (O&M) -5- by the Government of India, from time to time, that the benefit given to the plaintiff earlier was withdrawn. His case is squarely covered by the judgments relied upon by the lower courts i.e. Sahib Ram vs. State of Haryana 1995(1) Services Cases today 668 and Union of India v. M. Bhaskar and others 1996(4) Services Cases Today 56. In view of the above discussion, I conclude that no substantial question of law arises in the present appeal and the same is hereby dismissed. December 23, 2010 (Gurdev Singh) tripti Judge