C.W.P. No. 18484 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 18484 of 2008 DATE OF DECISION: MAY 14, 2009 S.P. Tuteja .....PETITIONER Versus Uttar Haryana Bijli Vitran Nigam Limited, Panchkula and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Mr.Vinod S.Bhardwaj, Advocate, for the petitioner. Mr.Narender Hooda, Advocate, for the respondents. .. SATISH KUMAR MITTAL, J. The petitioner, who has retired from the service of Uttar Haryana Bijli Vitran Nigam Limited, Panchkula as Commercial Assistant on 31.3.2004 after attaining the age of superannuation, has filed the instant petition challenging the order dated 18.9.2008 (Annexure P14) passed by respondent No.3, whereby the said respondent has re-fixed the pay as well as pension of the petitioner, and on the basis of the said order, deducted an amount of Rs.29,175/- from the retiral benefits of the petitioner. In the present case, the petitioner joined his service with the respondent-Nigam on 12.9.1968 as L.D.C.. Thereafter, he was promoted as U.D.C. on 10.5.1976 and later on as Commercial Assistant w.e.f. 14.2.2002. At the time of revision of pay scale w.e.f. 1.4.1979, the petitioner was C.W.P. No. 18484 of 2008 -2- holding the post of U.D.C. His pay in the revised scale was fixed at the stage of Rs.570/- w.e.f. 1.4.1979 in the pay scale of 525-900. The pay of one Shri D.P.Ahuja, who was promoted as U.D.C. on 14.11.1980, was fixed at the stage of Rs.600/- in the same pay scale w.e.f. 14.11.1980. Subsequently, on a representation made by the petitioner, the pay of the petitioner was revised at par with Shri D.P.Ahuja w.e.f. 1.11.1981. Till the date of his retirement on 31.3.2004, the petitioner received the salary in accordance with the above pay scale. After the retirement of the petitioner, the respondents passed an order that the petitioner was wrongly given the pay of Rs.600/- at par with Shri D.P. Ahuja and also withheld an amount of Rs.29,175/- from his retiral benefits. The petitioner challenged the said action by filing CWP No.7682 of 2002 in which a prayer was made for issuing direction to the respondents to pay the amount of Rs.29,175/- to him, which was illegally withheld by the respondents. The said writ petition was disposed of by a Division Bench of this Court vide order dated July 21, 2008 with a direction to the respondents to re-fix the pay and pension of the petitioner as per law, after providing an opportunity to him. In pursuance of the said order, the petitioner was heard and the impugned order (Annexure P14) has been passed. In the impugned order, it has been stated that the petitioner was not drawing the pay in the same scale as Shri D.P.Ahuja, U.D.C. was drawing prior to the revision of pay scales, i.e., prior to 1.4.1979. The petitioner was drawing the pay scale of Rs.150-8-166-10-216/230-10-300 in the capacity of U.D.C. whereas Shri D.P.Ahuja was drawing the pay scale of Rs.110-5- 130-7-200-10-250 in the capacity of L.D.C. Consequent upon the promotion of Shri D.P. Ahuja as U.D.C. on 14.11.1980, his pay was fixed at the rate of C.W.P. No. 18484 of 2008 -3- Rs.600/-, whereas the pay of the petitioner was fixed at the rate of Rs.585/- on the said date. Since both the petitioner and said Shri D.P.Ahuja were working on different cadres, it has been held that the pay of the petitioner was wrongly revised at par with Shri D.P.Ahuja. Accordingly, an amount of Rs.29,175/-, which was paid in excess, was deducted from the retiral benefits of the petitioner. During the course of hearing, counsel for the petitioner could not controvert the aforesaid factual position and assail the correctness of the impugned order (Annexure P14). However, he submits that at no point of time the petitioner made any misrepresentation to the respondents or played any fraud on the basis of which any excess amount was paid to him. Learned counsel submitted that if the excess payment was made by the employer on the basis of the order dated 1.11.1981, the same is not liable to be recovered from the petitioner at the time of his retirement while re-fixing his pay scale. In support of his contention, learned counsel for the petitioner relied upon the judgments of the Supreme Court in Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18 and Syed Abdul Qadir and others v. State of Bihar and others, (2009) 3 SCC 475. On the other hand, learned counsel for the respondents has not controverted the aforesaid legal position. It is not the case of the respondents that in the present case the excess amount was paid to the petitioner because of any misrepresentation or fraud on his part. From the facts, it appears that the respondents at their own, on the basis of a representation, which does not contain any misrepresentation of facts, revised the pay of the petitioner in the pay scale equivalent to Shri D.P.Ahuja w.e.f. 1.11.1981 and on the basis of the said order, the salary was C.W.P. No. 18484 of 2008 -4- paid to the petitioner. Only after retirement of the petitioner, the pay of the petitioner was re-fixed by the impugned order and on the basis of that re- fixation, the excess amount paid to the petitioner for the last about twenty years to the tune of Rs.29,175/- has been deducted from his retiral benefits. In my opinion, in view of the law laid down by the aforementioned judgments of the Supreme Court, the respondents were not legally justified in deducting/withholding the said amount. Consequently, this writ petition is partly allowed and the respondents are directed to pay an amount of Rs.29,175/- to the petitioner within a period of two months from today, which was illegally deducted from the retiral benefits of the petitioner. In case the said amount is not paid to the petitioner within the aforesaid period, the respondents are liable to pay interest @ 8% on the said amount from the date of retirement of the petitioner. May 14, 2009 (SATISH KUMAR MITTAL) vkg JUDGE