RSA No. 59 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No. 1207-C of 2009 and RSA No. 59 of 2009 Date of Decision: July 21, 2009 State of Haryana and others ...... Appellants Versus Bhagwat Sarup and another ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. Madan Gupta, Senior DAG, Haryana for the appellants. Mr. R.K. Malik, Senior Advocate with Mr. Sajjan Singh Malik, Advocate for the respondents. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. CM No.1207-C of 2009 For the reasons recorded in the application, the delay of 53 days in filing the appeal is condoned. CM stands disposed of. RSA No. 59 of 2009 This appeal has been filed against the judgment of the learned lower Appellate Court reversing that of the trial court and thereby decreeing the suit of the appellants. The respondents had challenged the recovery made from their RSA No. 59 of 2009 2 retiral dues. The appellants defended the recovery by alleging that the pay of the respondents had been wrongly fixed on the implementation of the report of the 1996 Pay Commission and subsequently after issuing show cause notice and considering the reply the recovery order was passed. The trial Court primarily relied upon the undertaking given by the respondents to the effect that they would be liable to pay any excess amount and dismissed the suit. It is, however, noteworthy that the trial court did not opine as to how the recovery was justified but merely took it as self evident that since the notice was issued and recovery order was passed, therefore, it must have been justified. As mentioned above the learned lower Appellate Court allowed the appeal thus decreeing the suit. The following questions have been posed:- i) Whether the excess amount paid to the plaintiffs- respondents because of their wrong pay fixation can be recovered from them in view of their undertakings? ii)Whether the Govt. is within its rights to affect recovery of the amount paid in excess to its employees because of inadvertent mistake? iii)Whether judgment and decree passed by the learned lower Appellate Court is contrary to the evidence produced on record? iv)Whether the judgment and decree passed by the learned lower Appellate Court is sustainable in the eye of law? In my opinion all the questions posed missed the point viz. whether the appellants have been able to lead any evidence to show that RSA No. 59 of 2009 3 indeed over payment was made to the respondents. Learned Senior DAG has taken me through the entire evidence but has not been able to show me any document or testimony which can be said to justify that excess payment has been made. The only reliance is the fact that there was an audit objection. In my opinion the mere fact that there was an audit objection would not by itself prove that indeed over payment had been made. In these circumstances I hold that the questions posed do not arise in this appeal and consequently the same is dismissed. No costs. Since the main case has been decided, all the CMs stand disposed of.` (AJAY TEWARI) JUDGE July 21, 2009 sunita