CWP No. 14697 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 14697 of 2011 Date of decision : 11.08.2011 Siya Ram ......Petitioner versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. M.K. Dogra, Advocate for the petitioner **** RITU BAHRI, J. (Oral) The petitioner is seeking issuance of a writ in the nature of certiorari for quashing the impugned re-fixation of basic pay of the petitioner vide order dated 19.05.2010 (Annexure P-2) passed by respondent No. 2 The petitioner was working as Welder under respondent No. 3 at RSD. Shahpur Kandi Township, Pathankot and retired on 31.01.2011 on attaining the age of superannuation but the retiral benefits were not given to the petitioner. Learned counsel for the petitioner has further submitted that some of the employees approached this High Court by way of filing writ petition i.e CWP No. 1067 of 2003 for quashing of the order dated 11.09.2002 and the subsequent orders of reduction of their pay scales. The said petition was finally decided by this Court partially accepting the petition holding that the employer has a right to fix the emoluments payable to its employee and therefore the decision to re-fix the emoluments cannot be said to be illegal. However, the re- CWP No. 14697 of 2011 -2- fixation of salary from the retrospective date was declared to be illegal and void. Learned counsel for the petitioner has further submitted that on 31.03.2011, the Accountant General Punjab sanctioned the gratuity of the petitioner to the extent of Rs. 364153/-. However, a sum of Rs. 154258/- was also shown to be recoverable on account of withdrawal of the scale of Rs. 1200- 2100 as per LPC. Learned counsel for the petitioner has argued that pay of the petitioner has been fixed from time to time by the respondents at their own, without there being any misrepresentation or fraud on the part of the petitioner , the recovery cannot be effected by the department. A committee was constituted by the Project Officer on 11.09.2002 to look into the aspect of correctly implementation of para 26.4 of Chapter 26 of 3rd Pay Commission. In view of the recommendation of Committee, vide order dated 11.09.2002, it was decided to accept the recommendation of the Committee. This order was challenged by way of filing CWP No. 1067 of 2003 in the High Court. The said petition was finally decided on 27.03.2009. The operative part of the order passed by the Hon'ble High Court is as under:- “ In view of the said fact, we party allow the present writ petition by declaring that the refixation of salary from retrospective date i.e prior to the decision of the Committee, is illegal and void. Since the impugned orders were stayed in few of the writ petitions, the workmen must have paid higher pay scale. Therefore, in respect of the employees, who are petitioners in the aforesaid cases, the respondent shall be at liberty to take appropriate decision in respect of the recovery of the amount so paid to avoid hardship and undue financial burden at this stage. Keeping in view the interim orders passed by the Court. The writ are disposed of in the same terms”. CWP No. 14697 of 2011 -3- This order was challenged by way of SLP, which was dismissed on 04.09.2009. Thereafter, Punjab Government issued order dated 19.05.2010 (Annexure P-2) to effect recovery w.e.f 11.09.2002 onwards from various employees (Retiree as well as in service) in Ranjit Sagar Dam & SPK Dam Projects, Shahpurkandi on account of grant of scale of Rs. 1200-2100. The petitioner retired from service on 31.03.2011. The Accountant General Punjab has also recovered Rs. 148358/- was on account of excess payment made on refixation. Learned counsel for the petitioner has argued that vide order dated 27.03.2009, the refixation of salary from retrospective date was held to be illegal and void. In the present case, the petitioner has retired on 31.03.2011 and the benefit of grant of scale of 1200-2100 is concerned, the said benefit was conferred upon the petitioner without any misrepresentation or fraud on part of the petitioner. The petitioner was granted this pay scale way back on 20.10.1998 till he retired and in view of Supreme Court judgment in Sahib Ram vs. State of Haryana, 1995(1) SCC 668, the action of the respondents is clearly arbitrary. Learned counsel for the petitioner has further referred to a Full Bench decision of this Court in Budh Ram vs. State of Haryana and others 2009(3) PLR 511 wherein it has been held that neither any recoveries can be affected from an employee who received the benefit without any fault or misrepresentation on his part nor the basis pay of an employee can be refixed or brought down without any notice, reply, opportunity of hearing and passing of a speaking order. In view of the law laid down in the aforesaid judgments, the CWP No. 14697 of 2011 -4- present writ petition is allowed and Annexure P-2 dated 19.05.2010 is hereby quashed. A direction is given to refund the amount i.e Rs. 154258/- to the petitioner, within a period of four months from the date of receipt of certified copy of this order is received. However, liberty is granted to the department to refix the salary after due notice prospectively. If the salary was paid due to misrepresentation or fraud by the petitioner, the State is at liberty to seek review of this order, within a period of six weeks August 11, 2011 (RITU BAHRI) G.Arora JUDGE