C.W.P. No. 12001 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 12001 of 2009 DATE OF DECISION: November 06, 2009 Gurdev Singh .........PETITIONER(S) VERSUS State of Punjab and Others ......RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. Manohar Dadwal, Advocate, for the petitioner. Mr. B.S. Chahal, DAG, Punjab. AJAI LAMBA, J. (ORAL) This order shall dispose of three civil writ petitions namely CWP No. 12001 of 2009 titled Gurdev Singh Vs. State of Punjab through Principal Secretary to Government of Punjab, Water Supply and Sanitation Department and Others, CWP No. 12012 of 2009 titled Shashi Handa Vs. State of Punjab through Principal Secretary to Government of Punjab, Water Supply and Sanitation Department and Others and CWP No. 12003 of 2009 titled Om Parkash Vs. State of Punjab through Principal Secretary to Government of Punjab, Water Supply and Sanitation Department and Others, as common questions of law and facts are involved. Same department is the respondent. Similar relief has been prayed for. C.W.P. No. 12001 of 2009 2 At the outset, learned counsel for the petitioner states that the petitioners in all the three cases confine their claim in challenge to recovery only. Challenge to refixation of pay is not being pressed. For reference to facts, CWP No. 12001 of 2009 titled Gurdev Singh Vs. State of Punjab through Principal Secretary to Government of Punjab, Water Supply and Sanitation Department and Others is being taken up. This petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing the Audit Report qua the petitioner dated 18.11.2008 (Annexure P-1), office order dated 15.07.2009 (Annexure P-2) and letter dated 27.07.2009 (Annexure P-3). It has been pleaded that the petitioner was appointed as a Clerk on 15.09.1972. Thereafter, the petitioner was promoted on account of his exemplary service. The petitioner retired from service on 01.01.2007 as Senior Assistant. Pension case of the petitioner was finalized by the respondents. All the retiral benefits have been released. Pension of the petitioner has also been fixed considering the last pay drawn i.e. Rs. 9,475/-. The petitioner has been receiving the pension accordingly. After about one year and ten months of retirement, respondent no. 4 submitted a recommendation report whereby it has been recommended that Rs. 84,341/- was excess payment released to the petitioner. Pay of the petitioner needs to be refixed. The letter has been placed on record as Annexure P-1 dated 18.11.2008. On the basis of Annexure P-1 dated 18.11.2008 another letter dated 15.07.2009 has been issued whereby pay of the petitioner has been refixed in the pay scale of Rs. 9,200/- after withdrawing one increment C.W.P. No. 12001 of 2009 3 which had been granted during the course of service. After refixation of pay, vide Annexure P-3 dated 27.07.2009 after calculating the amount to be recovered viz. Rs. 77,479/- has been ordered to be recovered. Learned counsel for the the petitioner states that the petitioner had not actuated wrong fixation of pay during course of his service by way of fraud or misrepresentation. In this view of the matter, the respondents have no right, at this stage, to effect recovery from the pension being paid to the petitioner. In this regard, learned counsel relies on judgment dated 22.05.2009 rendered by Full Bench of this Court in Budh Ram and Others vs. State of Haryana and Others bearing CWP No. 2799 of 2008. Learned counsel for the respondent states that since the challenge is only to recovery, facts make it evident that the case is covered by judgment rendered in Budh Ram's case (supra). There is no material or evidence to indicate that the petitioner had played fraud or had misrepresented facts. I have considered the facts and circumstances of the case. In Budh Ram and Others vs. State of Haryana and Others bearing CWP No. 2799 of 2008, while considering the second question for determination viz.:- “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 C.W.P. No. 12001 of 2009 4 concerned;”, the following has been held:- “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 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, inquitable 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. It does not require much imagination to say that additional monetary benefits going to an employee may not always result in accumulation of his resources and savings. Such a benefit may often be utilized on smaller luxuries of life which the employee and his family may not have been able to afford had C.W.P. No. 12001 of 2009 5 the benefit not been extended to him. The employees can well argue that if it was known to them that the additional benefit is only temporary and would be recovered back from them, they would not have committed themselves to any additional expenditure in their daily affairs and would have cut their coat according to their cloth. 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.” Considering the facts and circumstances of the case, it transpires that the petitioner was getting his pension. After considerable period of retirement, recovery has been ordered on the ground that during the course of service, pay had been wrongly fixed. The respondents have not been able to point out any fact or circumstance which would indicate that the petitioner had played fraud or had misrepresented facts to fix the pay wrongly. In view of the above, this petition is allowed in terms of judgment dated 22.05.2009 of this Court rendered in Budh Ram and Others vs. State of Haryana and Others bearing CWP No. 2799 of 2008. The respondents would have no right to effect recovery from the petitioner. Consequently, it is also directed that in case any recovery had C.W.P. No. 12001 of 2009 6 been effected in the interregnum period, the amount shall be refunded to the petitioner within a period of four months of receipt of certified copy of the order. All the three cases are allowed in the same terms. 06.11.2009 (AJAI LAMBA) shivani JUDGE 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the Digest?