IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 15336 of 2006 DATE OF DECISION : AUGUST 10, 2009 KULWANT SINGH & ORS. ....... PETITIONER(S) VERSUS STATE OF PUNJAB & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. NS Kandhola, Advocate, for the petitioner(s). Mr. BS Chahal, DAG, Punjab. AJAI LAMBA, J. (Oral) CM 11688 of 2009 The prayer made in the application is for fixing an actual date of hearing in the main writ petition. Notice of the application. On the asking of the Court, Shri B.S. Chahal, Deputy Advocate General, Punjab, accepts notice on behalf of the respondents. Heard. Civil Writ Petition No. 15336 of 2006 2 The application is allowed. On the request of learned counsel for the parties, the main writ petition is taken up for hearing. CWP 15336 of 2006 This petition under Articles 226/227 of the Constitution of India has been filed praying for issuance of a writ in the nature of certiorari quashing order of recovery of excess payment made to the petitioners. It has been pleaded in the petition that the petitioners were appointed as Constables in the Police Department and were promoted to the rank of Sub Inspectors, in due course of time. The Government issued instructions on 21.6.1990 for removal of anomaly by stepping up the pay of senior Government employees drawing pay less than their juniors. The pay of the senior employees was to be stepped-up to bring it at par with that of their juniors. Similar other instructions were passed on 17.11.1993 to clarify the same issue. It has been pleaded that the respondents granted the benefit to the petitioners, keeping in view instructions dated 17.11.1993. Subsequently, however, it seems that an audit objection was raised. Show cause notice was not issued to the petitioners, however, the respondents issued directions to the Accounts Branch to effect recovery from the petitioners at the rate of Rs.1,000/- per month. Learned counsel for the petitioners has impressed on the court that neither the pay was fixed by the respondents on any misrepresentation made on behalf of the petitioners nor on account of any Civil Writ Petition No. 15336 of 2006 3 fraud played by them. In this view of the matter, learned counsel for the petitioners contends that the recovery cannot be effected. The amount recovered from the petitioners is required to be refunded to them. Learned counsel for the respondent-State has not been able to draw the attention of the Court to any document or material that would indicate that the petitioners had actuated fixation of pay or grant of benefit to the petitioners. Learned counsel for the respondent-State has further not been able to place reliance on any material that would indicate misrepresentation or fraud having been played by the petitioners. In view of the above, I find that the claim of the petitioners is covered by Full Bench judgment of this Court in CWP 2799 of 2008 (Budh Ram and others v. state of Haryana and others) decided on 22.5.2009. In Budh Ram's case (supra), the second question for determination was as under:- 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 concerned;” While considering the aforesaid question, 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 Civil Writ Petition No. 15336 of 2006 4 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, inequitable 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 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 Civil Writ Petition No. 15336 of 2006 5 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 law laid down by this Court in Budh Ram's case (supra), the petition is allowed. It is directed that the respondents would not effect any recovery from the petitioners. As a corollary, it is further directed that the recovery already effected from the petitioners shall be refunded to the petitioners. The needful be done within four months of receipt of a copy of this order. August 10, 2009 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?