State of Punjab and others vs Jagdish Raj

L.N. Mittal, J.

C.M. No. 11194-C of 2011:

This is application by appellants (State of Punjab and others) for condonation of delay of 193 days in filing the second appeal. The application is accompanied by affidavit. Initially, delay as per application was by District Attorney, who gave his opinion six weeks after receiving certified copy of judgment and decree of the lower appellate court. However, even then the appeal could have been filed within limitation without further delay that took place in the office of Advocate General, Punjab. According to averments in the application, relevant record was submitted in the office of Advocate General, Punjab on 04.02.2011 along with Sanction for preferring the appeal and the office of Advocate General, Punjab processed, prepared and filed the appeal on 24.08.2011 i.e. after consuming 06 months 20 days, for which there is practically no explanation in the application. In the aforesaid circumstances, strictly speaking, there is no sufficient ground for condoning the delay of 193 days in filing the appeal. However, still adopting liberal approach, the application is allowed and delay of 193 days in filing the appeal is condoned.

A copy of this order be sent to the Advocate General, Punjab, who may devise some mechanism to avoid such delays in his Office.

Main Appeal :

Defendants�State of Punjab and others have filed this second appeal having partly failed in both the courts below.

Respondent-plaintiff Jagdish Raj filed suit against defendants/appellants. Facts in the case are not very much in dispute. The plaintiff sought voluntary retirement from service and accordingly retired on 30.04.2008 after serving three months'' notice. However, after his retirement, the defendants re-fixed his pay thereby withdrawing benefits of some increments granted on completion of 4, 9 and 14 years'' service and ACP increments granted on completion of 16 years and 24 years of service, thereby reducing his pay and ordering recovery of excess amount from the plaintiff. The plaintiff in the suit challenged the said order of re-fixation of his pay and claimed retiral benefits along with interest. He also claimed recovery of the amount, if in the meantime, some recovery of alleged excess amount was effected from the plaintiff.

The defendants pleaded that after retirement of plaintiff, his case was sent to Accountant General for pension. However, the Accountant General raised objections regarding fixation of pay at different stages and regarding grant of proficiency step-up increments on completion of 16 years and 24 years and also regarding grant of other increments and pursuant thereto, pay of plaintiff has been rightly re-fixed and recovery of excess amount has been rightly ordered. Order dated 17.07.2008 passed in this respect was accordingly defended. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Sardulgarh, vide judgment and decree dated 09.01.2010, partly decreed the plaintiff''s suit to the extent that defendants are not entitled to recover the excess amount of emoluments on account of wrong payment of benefits of proficiency step-up given to the plaintiff. It was also held that amount of Rs. 73,029/-, already deducted by defendant No. 3 from death-cum-retirement gratuity of the plaintiff, is wrong and illegal. The defendants were accordingly directed to return the said amount within four months. First appeal preferred by the defendants stands dismissed by learned Additional District Judge (Adhoc), Fast Track Court, Mansa, vide judgment and decree dated 19.10.2010. Feeling aggrieved, defendants have filed the instant second appeal.

I have heard learned counsel for the appellants and perused the case file.

It has come in evidence of defendants themselves that plaintiff did not play any role in initial fixation of his pay and grant of various increments, which have now been withdrawn by re-fixation of pay. The plaintiff also did not commit any fraud or misrepresentation in the said matter. On the other hand, defendants themselves, by wrong interpretation of rules and instructions, fixed the pay of the plaintiff and paid the same to him. Consequently, in view of Full Bench judgment of this Court in the case of Budh Ram and others vs. State of Haryana and others reported as 2009 (3) SCT 333, the defendants are not entitled to recover the excess amount already paid to the plaintiff, although for future benefits, the pay of the plaintiff, as re-fixed, would hold good. In view of said judgment, courts below have rightly decreed the suit of the plaintiff partly holding that defendants are not entitled to recover the excess amount already paid to the plaintiff, although the pay, as re-fixed, would hold good prospectively.

In view of the aforesaid, there is no merit in the instant second appeal. The question of law arising in the appeal has already been settled by Full Bench of this Court in the case of Budh Ram (supra) and courts below have decided the lis accordingly in consonance with ratio of the said judgment.

The appeal is thus found to be meritless and is accordingly dismissed in limine.