Inderjit Singh Bagga vs State Of Punjab & Ors.

SANDEEP MOUDGIL, J (ORAL)

Jurisdiction of this court has been invoked under Article 226/227 of the Constitution of India for issuance of writ in the nature of Mandamus directing the respondents to calculate the pension after granting the ACP increment of 9 years on 01.01.2001 and increment of 14 years on 01.01.2005 and for issuing a writ in the nature of Certiorari of quashing the order dated 06.12.2014 (Annexure P-5) and order dated 27.10.2016 and 27.12.2016(Annexure P-9 and P-10) vide which recovery of Rs. 8,47,683/- in monthly instalment of Rs.55,844/- has been ordered.

Brief facts of the case succinctly stated are that the petitioner had joined the office of the respondent as Medical Officer on 26.09.1991 and superannuated on 31.01.2016 but was given the extension of one year. The petitioner on 01.01.1996 was granted the higher scale of 4 years and his fixation in the next higher grade was after the service of 9 years and 14 years respectively. The ACRs for the year 1996-97, 1997-98, 1998-99 were not traceable but was sent by then SMO in the year 2014. Despite the petitioner’s filing multiple representations, no heed was paid and then the petitioner filed CWP No.5279 of 2011 which was disposed of with directions to decide the representation of the petitioner. Thereafter, vide order dated 07.01.2013, the petitioner was awarded higher scale of 9 years w.e.f. 01.01.2005 and 14 years w.e.f. 01.01.2010. However, vide order dated 22.12.2014, the fixation of ACP was changed i.e ACP of 9 years was given w.e.f. 01.01.2006 instead of 01.01.2005 and ACP of 14 years haven been given w.e.f. 01.01.2011 instead of 01.01.2010. The petitioner again moved multiple representations but no action was taken. The respondent no.3 vide order dated 30.08.2016 ordered to recover an amount of Rs. 1,91,411/- to be recovered in monthly instalment of Rs. 31,901/-. Again, respondent passed an order dated 27.10.2016 stating that the total recovery comes to Rs. 5,90,670/- which is to be recovered in the monthly instalment of Rs.32,929/- and later an order was passed on 27.12.2016 imposing recovery of Rs.3,20,815/- to be recovered in the monthly instalment of Rs.22,915/-. Now, a total deduction of Rs.55,844/- per month is being carried out in the pay of the petitioner. Hence, the present petition.

Learned counsel for the petitioner submits that the petitioner joined the office of the respondent as Medical Officer on 26.09.1991 and superannuated on 31.01.2016 and as per the government policy, the petitioner was to b put up in the higher scale after expiry of 4, 9 and 14 years respectively. Although he was granted the higher scale of 4 years on 01.01.1996, however, the ACR for the year 1996-97, 1997-98 and 1998-99 was traceable but was sent by the SMO in the year 2014 and his ACP was fixed for 9 and 14 years on w.e.f. 01.01.2005 and 01.01.2010 respectively.

Counsel for the petitioner contends that to utter shock of the petitioner, the respondent no.2 passed an order dated 22.12.2014 vide which the fixation of ACP was changed i.e for 9 years it was given 01.01.2006 instead of 01.01.2005 and ACP of 14 years have been given w.e.f. 01.01.2011 instead of 01.01.2010.(Annexure P-5).

It is further contended that the petitioner moved a representation dated 30.12.2014 and 05.09.2016 but no action was taken to it.(Annexure P- 6 and P-7). Further, the respondent no.3 vide order dated 30.08.2016 ordered to recover an amount of Rs. 1,91,411/- to be recovered in monthly instalment of Rs.31,901/- , later vide order dated 27.10.2016, the total recovery was stated to be 5,90,670/-which was ordered to be recovered in the monthly instalment of Rs.32,929/- and lastly, another order dated 27.12.2016, was passed imposing a recovery of Rs.3,20,815/- to be recovered in the monthly instalment of Rs. 22,915/- and to appose the above, the petitioner filed a representation to the respondent for recalling the orderes but no action was taken.

It is urged by the counsel for the petitioner that now, a total deduction of Rs. 55,844/- per month is being carried out in the pay of the petitioner which he is getting on the extended period granted by the respondent which is causing financial loss to the petitioner for no fault of his part.

Per contra the State counsel, submits that the ACP for 9 and 14 years w.e.f. 01.01.2005 and 01.01.2010 respectively were granted as an interim order by Director Health and Family Welfare Punjab subject to final approval by the Govt and the same was later rectified vide order dated 22.12.2014.

It is further submitted that the ACR’s for the period 1996-97, 1997-98 and 1998-99 were kept with the reporting authority and were not submitted to the competent authority for which No Report Certificate have been recorded for this period.

It is argued that the recovery of Rs.1,91,411/- to be recovered in the monthly instalment of Rs. 31,901/- has been passed rightly vide order dated 30.08.2016 since the said amount was paid to the petitioner in excess as part of interim order.

Heard counsels for the parties at length.

Having heard counsel for both parties at length and after perusal of the material placed on record this court is of the considered opinion that the facts are largely undisputed. It is a trite that 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.

In the present petition, if it was known to the petitioner that the additional benefit is only temporary and would be recovered back from him, he would not have committed himself to any additional expenditure in his daily affairs and would have cut the coat according to the cloth.

The ratio stands discussed in “Som nath Vs State of Haryana 2005(4) S.C.T. 303” wherein it has been observed that where no fraud or misrepresentation has been attributed to the employee, no recovery can be made from him on account of excess payment on refixation of his salary.

In “Sheetla Devi Vs State of Punjab and others 2009(4) S.C.T 471” it has been observed that the employer granting benefits to employee on the basis of either bona fide mistake or misrepresentation of any rule, circular or order cannot recover the said amount from the employee which has been paid in excess.

Coming to the defence raised regarding ACP being wrongly granted for the 9 and 14 years and later rectified by order dated 22.12.2014 does not hold good here since it it a settled principle of law that once the employee had completed the prescribed qualifying service and the ACP benefit has been sanctioned/ fixed with effect from the date on which eligibility accrued, the accrued financial benefit could not subsequently be altered to the employee’s disadvantage, particularly where the alteration was based merely upon a subsequent interpretation/order/policy.

Therefore, taking into consideration the above discussion, this court has no hesitation in holding that the benefit granted to the petitioner, which had been withdrawn without any allegation or finding of misconduct on his part, was sought to be taken away after the receipt of the ACRs which is certainly bad in law.

This court is sanguine of the fact that in case the employee who is recipient of the benefits extended to him 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 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.

In view of the above discussion and the settled position of law, this Court finds that taking away the benefit granted to the petitioner, categorically after receipt of ACRs without any act of misconduct on his part, amount to abuse of process of law and is certainly an illegal and arbitrary act in the eyes of this court. This court hereby quash the impugned order dated 06.12.2014 (Annexure P-5) and order dated 27.10.2016 and 27.12.2016(Annexure P-9 and P-10) vide which recovery of Rs. 8,47,683/- in monthly instalment of Rs.55,844/- has been ordered.

The respondents are directed to grant the ACP to the petitioner for the year 9 and 14 as per the eligibility and refix the pay and all consequential benefits accordingly. The benefits are to be released within a period of three months without any interest.

In the aforesaid terms, the petition stands allowed.

Pending application(s), if any, stands disposed of.