C.W.P. No. 17699 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 17699 of 2009 Date of Decision 23.7.2010 Gurmit Kaur and others ........ Petitioners Versus Punjab State Electricity Board, Patiala and another ........ Respondents CORAM: HON'BLE MR.JUSTICE SURYA KANT Present: Mr. O.P. Gaba, Advocate for the petitioners. Mr. H.S. Grewal, Advocate for the respondents. SURYA KANT, J. (ORAL) The petitioners have un-fortunately lost their husbands while they were in the services of the respondent-Board. The petitioners have been granted 'family pension' under the Rules and they also used to draw the benefit of Dearness Allowance on 'family pension' which has since been withdrawn in terms of the Government Instructions, dated 14.5.2001 (Annexure P-1) as clarified further vide memo dated 9.5.2002 (Annexure P-2), adopted by the Punjab State Electricity Board, whereby it was decided that the dependent-family of a deceased employee shall not be entitled to the grant of the Dearness Allowance with effect from the date when one of the dependent is employed under the ex-gratia policy. The respondents, however, continued to pay the dearness allowance to the petitioners in ignorance of their own instructions. Subsequently, the mistake was detected and rectified and the arrears of Dearness Allowance already paid to the C.W.P. No. 17699 of 2009 -2- petitioners allegedly in excess were recovered from them. Aggrieved, the petitioners have approached this Court. Respondents No.1 and 2 have filed their reply-affidavit which is taken on record. During the course of hearing, learned counsel for the parties are ad-idem that the controversy involved in this case already stands resolved by a Division Bench of this Court in favour of the family pensioners like the petitioners in (Mukhtiar Singh versus State of Punjab) CWP No. 891 of 2003, decided on 20.1.2004, holding as follows:- “The controversy in hand raises two issues, namely (1) whether the petitioners are entitled to dearness allowance on family pension, and (2) whether recovery could be effected in a situation wherein the recipients had not made any misrepresentation to the authorities. In so far as the first issue in concerned, the controversy in hand stands adjudicated upon by the Apex Court in HSEB and others versus Azad Kaur (Civil Appeal No.5835 of 1998, decided on 18.8.1999). In view of the determination of the Apex court on the issue under reference, we are satisfied that the claim of the petitioners for dearness allowance on family pension is misconceived. The first contention of the petitioner is, therefore, not accepted. The second issue relates to the recovery of dearness allowance wrongfully paid to the petitioners. It is not a matter of dispute between the parties that C.W.P. No. 17699 of 2009 -3- the payment of dearness allowance to the petitioner was not based on any misrepresentation at their hands. It is clear that dearness allowance was wrongly paid to the petitioners by the respondents unilaterally. That being so, in view of the decision rendered by the Apex Court in Sahib Ram Vs. State of Haryana and others, 1994 (S) SLR 753, we are satisfied that the recovery should not be effected from the petitioners...” The right to effect recovery of a monetary benefit, to which the employee was not entitled to, but was granted to him without any misrepresentation, fraud or deception on his part, has been authoritatively curtailed by a Full Bench of this Court in Budh Ram and others Versus State of Haryana and others, 2009 (3) S.C.T.333, wherein it has been ruled that if an employee was not guilty of misrepresentation of facts, or playing fraud or deception and he had received the monetary benefit due to the mistake of the functionaries of the State, such an employee need not be called upon to refund such undeserved payment already received by him. For the reasons mentioned above, the writ petition is allowed; the recovery orders are quashed and the amount already recovered from the petitioners is ordered to be refunded to them within a period of three months from the date of receipt of a certified copy of this order. Dasti. July 23, 2010 ( SURYA KANT ) rishu JUDGE