Gurdev Singh vs State of Punjab and Others

Gurmeet Singh Sandhawalia, J.

Civil Misc. No. 21283 of 2004.

Prayer made in this application is for placing on record written statement filed on behalf of respondents No. 1 to 4.

In view of the averments made in the application, the Civil Misc. Application is allowed. Written statement filed on behalf of respondents No. 1 to 4 is taken on record.

Office to tag the same at appropriate place in the file.

Civil Writ Petition No. 7963 of 2004.

The petitioner''s grouse in the present case is that vide order dated 25.6.2003 (Annexure P/4) his pay was refixed and in pursuance of refixation, a sum of Rs. 1,37,431/- came to be recoverable from him and the respondents sought to recover the same vide letter dated 2.9.2003 (Annexure P/6).

The writ petition was admitted and ordered to be heard along with Civil Writ Petition No. 16546 of 2003 and recovery was stayed in the meanwhile. The said writ petition has been decided on 10.2.2010 and in that case also the petition was allowed to the extent of quashing of recovery. Relevant portion reads as under:-

For the reasons afore-stated, the writ petition is allowed in part to the extent that while re-fixation of the petitioner''s pay and withdrawal of the stepping-up benefit, are upheld but the consequential recovery notice is hereby set-aside. It is further directed that if the respondents have already effected any recovery from the petitioner, the same shall be refunded to him within a period of three months from the date of receiving a certified copy of this order. As the petitioner has meanwhile retired from service, his retiral benefits shall also be re-fixed accordingly.

Dasti

Counsel for the State has contended that the pay of the petitioner was wrongly fixed and was erroneously stepped up and only a correction has been made and order was justified.

Counsel for the petitioner does not press the case on merits and only submits that the petitioner had been appointed way back in 1977 and would have been superannuated in all probabilities by now and at this stage to order recovery of such a huge amount is not justified. It has further been submitted that it was not a case where any misrepresentation and fraud has been alleged on the part of the employee. Therefore, reliance has been placed upon the Full Bench judgment of this Court in Budh Ram Vs. State of Haryana(1995) Supp (1) SCC 18.

The three Judges Bench of the Hon''ble Apex Court in Syed Abdul Qadir and Others Vs. State of Bihar and Others, also held that wherein the beneficiary had retired or as at the verge of retirement, to avoid any hardship to them, recovery should not be effected from them. Relevant paragraphs read as under:-

We now come to the question as to whether the amount that has been paid in excess to the appellants-teachers should be recovered or not. It is the submission of the learned counsel appearing on behalf of the appellants-teachers that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount that has been paid to the appellants cannot and should not be recovered; it having been paid without any misrepresentation or fraud on their part.

xxxx xxxx xxxx

Undoubtedly, the excess amount that has been paid to the appellants-teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.

Thereafter, in Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, the Hon''ble Apex Court has held that recovery is not to be effected if it causes hardship to the petitioners. The case of the petitioner is, thus, covered under the said observations made by the Hon''ble Apex Court. Accordingly, the writ petition is partly allowed, recovery of the amount in question against the petitioner is quashed. However, it is made clear that the Department shall be free to re-fix the monetary benefits of the petitioner, in pursuance of the orders under challenge.