IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3201 of 2009 Date of Decision : September 03, 2009 Punjab State through the Collector, Patiala and others ....Appellants Versus Ajit Singh .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. K.S. Sidhu, Deputy Advocate General, Punjab T.P.S. MANN, J. Suit for declaration filed by the respondent was dismissed by learned Civil Judge (Junior Division), Patiala on 8.2.2007 but decreed in the first appeal by learned Additional District Judge, Patiala on 4.4.2009. Aggrieved of the same, the defendants are before this Court by way of second appeal filed under Section 100 of the Code of Civil Procedure. The case of the plaintiff-respondent, as set up by him in the plaint, was that earlier he was serving as Instructor, Army Education Core in the Indian Army and served for a period of 24 years. He retired therefrom on 31.1.1990. Thereafter, he joined as J.B.T. teacher in Government Primary School, Sarustigarh on 5.1.1991 and served upto 31.8.2004. As an Instructor in the Indian Army, he was given basic pay R.S.A. No.3201 of 2009 of Rs.1410/- plus good service pay of Rs.48/- and Rs.75/- as classification pay. The same remained intact at the time of his joining as J.B.T. teacher and he had been receiving the said allowances. However, the Accountant General, Punjab deducted an amount of Rs.57,000/- out of the pensionary benefits due to him which action was illegal, null and void and against the principles of natural justice. The defendants- appellants had no right or authority to make any deduction. He, accordingly, prayed for a declaration to the effect that the action on the part of the defendants in deducting an amount of Rs.57,000/- out of his pensionary benefits was illegal. He also prayed for mandatory injunction directing the defendants to fix his basic pay as Rs.7,220/- instead of Rs.6,800/- alongwith interest at the rate of 18% per annum without deducting the good service pay and classification pay. The stand of the defendants in their written statements was that the pay of the plaintiff was fixed at the rate of Rs.1,530/- per month inadvertently, instead of Rs.1,410/- per month on the date of his appointment on 4.1.1991 as J.B.T. teacher. At the time of retirement from military service the plaintiff was drawing the basic pay at the rate of Rs.1,410/- per month, which was the scale for the post of J.B.T. teacher. The pension case of the plaintiff was returned to the Education Department by Accountant General, Punjab vide letter dated 8.7.2004 with a direction that his pay, as protected by the department at the time of his appointment as J.B.T. teacher, was neither in order nor as per rules. Moreover, the plaintiff himself had moved representation dated 2.9.2004 that his pay be refixed and after refixation the amount due be -2- R.S.A. No.3201 of 2009 deducted from his gratuity. Accordingly, an amount of Rs.57,000/- was deducted out of his pensionary benefits. It is not the case of the defendants that the plaintiff had made any misrepresentation or concealment of facts or played any fraud when his salary was fixed at the time of his appointment as J.B.T. teacher. His pay was fixed by taking into consideration his basic pay while in service with the Indian Army, besides good service pay of Rs.48/- and classification pay of Rs.75/-. Mere fact that the plaintiff himself consented to the refixation of his pay and had given no objection with regard to the order of recovery would not authorise the department to pass an order, which was otherwise illegal keeping in view the law laid down by the Hon'ble Supreme Court in Sahib Ram v. State of Haryana 1994(5) SLR 753, Syed Abdul Qadir v. State of Bihar, 2009(1) SCT 611 and Babulal Jain v. State of M.P., (2007) 6 SCC 180. In a recent judgment in Budh Ram and others v. State of Haryana and others, 2009(3) Punjab Law Reporter 511, a Full Bench of this Court has held that any recovery of the benefits earlier 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 authorising such grant regardless whether or not grant of benefits involved the performance of higher or more onerous duties by the employee concerned, would be unfair, inequitable and against justice and good conscience, especially when benefit had not been received or obtained by the employee by reasons of fraud, misrepresentation or any other act of deception. The -3- R.S.A. No.3201 of 2009 relevant observations made by the Full Bench are as under:- “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, 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 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 -4- R.S.A. No.3201 of 2009 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 employee cannot be recovered from them.” In view of the above, no case is made out for any interference in the judgment passed by the learned lower appellate Court whereby the suit filed by the plaintiff-respondent for declaration was decreed. The substantial questions of law, as formulated by the appellants, do not arise for determination. The appeal is, therefore, dismissed in limine. ( T.P.S.MANN ) September 03, 2009 JUDGE Satish Whether to be referred to the Reporters : YES / NO -5-