Judgment:
Kanwaljit Singh Ahluwalia, J.
1. Present Civil Writ Petition has been filed by Union of India and two of its officials, namely, the Director General, Standardization, Testing & Quality Certification, Department of Information & Technology and the Director, Electronic Test Development Centre seeking quashing of the order dated 13th December, 2007 passed by the Central Administrative Tribunal (hereinafter referred to as, 'the Tribunal'), wherein it was held that the petitioner employers are not entitled to effect recovery of Rs. 1,35,913/-, as purportedly pay of the respondent employee was wrongly fixed at Rs. 12,375/- as on 1st January, 1996 instead of Rs. 11,300/-, due to revision of pay scale on the recommendation of the Vth Pay Commission.
2. It is not disputed that at the relevant time, respondent employee was working as Scientist Engineer 'SE' and has now retired on 31st January, 2005. It is also not the case of the petitioner employers that there was any misrepresentation, fraud or deceit practiced on the part of the respondent employee. The Tribunal, in the impugned order, relied upon a judgment of the Hon'ble Apex Court rendered in 'Sahab Ram v. State of Haryana 1994 (5) S.L.R. 753 and held that in this case the salary has been fixed due to mistake on the part of the employer, recovery of the amount from a retiree employee will cause great hardship and therefore, had quashed the order of recovery, as the same was in violation of the principles of natural justice and direction was given to refund the amount recovered from the leave salary of the employee.
3. Before we advert to the facts of the case and issues raised in the present petition, we are of the view that order of the Tribunal is to be upheld, as the same is in consonance with the ratio of law laid by a Full Bench of this Court in Civil Writ Petition No. 2799 of 2008 titled as 'Budh Ram and Ors. v. State of Haryana and Ors. : (2009-3) 155 P.L.R. 511 (F.B.) decided on 22nd May, 2009. One of us (T.S. Thakur, C.J.) was party to the Full Bench.
4. Om Parkash Kapoor respondent employee, on 6th February, 1986 joined the service as Electronic Engineer in Electronic Test & Development Centre ('ETDC for short) at Solan (HP). On 1st May, 1988, this project was taken over by the Government of India and petitioner No. 1 issued appointment letter to the employee Om Parkash Kapoor, to the post of Scientist 'SC in the pay scale of Rs. 2200-4000. The employee was further selected on 31st May, 1991 as Scientist Engineer 'SD' in the pay scale of Rs. 3000-4500. He was further promoted as Scientist Engineer 'SE' with effect from 1st January, 1996 in the pay scale of Rs. 3700-5000. The post of Scientist Engineer 'SE', held by the respondent employee, was redesignated as Scientist 'D'. The pay scale of Scientist was revised from Rs. 3700-5000 to Rs. 12000-375-16500. CCS (Revised Pay) Rules, 1997 were implemented and the respondent employee was held entitled to basic pay or Rs. 12375/- with effect from 1st January, 1996 in the revised pay scale of Rs. 12375-16500 12375-16500 , in accordance with the advice dated 3rd March, 1998 rendered by Internal Audit, PAO, Department of Information Technology. Thus, on the basis of internal audit observation the pay of the respondent No. 1 was revised under Rule 7(1) of the CCS (Revised Pay) Rules, 1997 as given below:
(i) 01.01.1996 Rs. 12,375/-(ii) 01.02.1996 Rs. 12,750/-(iii) 01.02.1997 Rs. 13,125/-(iv) 01.02.1998 Rs. 13,500/- and so on.
5. It is stated that on 14th October, 1997, respondent employee had furnished an undertaking to refund the excess amount, if any, found during the audit of arrears of pay and allowances paid on account of revision of pay scale with effect from 1st January, 1996.
6. Case of the petitioner employers is that the salary was wrongly fixed at Rs. 12,375/- instead of Rs. 12,000/-.
7. Mr. Ashwinie Bansal, learned Counsel appearing for the petitioners has stated that the respondent employee, even though was appointed as Scientist, but had retired as a very senior officer from the post of Additional Director, therefore, he had assess to the service book and all instructions issued by the Government. Mr. Ashwinie Bansal has further argued that the respondent employee retired as Additional Director and therefore, it cannot be held that recovery of the excess salary paid will cause hardship to him. To add spice to this argument, it was further submitted that respondent employee had retired in one of the top scales available in the ladder of the career by availing all promotions and on number of occasions had also acted as Drawing and Disbursing Officer. Therefore, it cannot be assumed that he was not aware of the wrong fixation of pay, even though, there was no mistake, fraud or deception on the part of the employee, yet it was his bounden duty to bring to the notice of the employer that his scale has been wrongly fixed. Therefore, it was urged that the case of the respondent employee will fall in category III envisaged in the judgment rendered by the Full Bench in Budh Ram's case (supra). The Full Bench was constituted to answer following question of law:
Whether the Government is entitled to recover from an employee any payment made in excess of what he was otherwise entitled to, on account of any mistake or bonafide but erroneous interpretation or belief regarding any Rule, Regulation or Government instructions whatsoever especially in cases where the employee concerned is not guilty of any fraud or misrepresentation in claiming or receiving such monetary benefits.
8. In Budh Ram's case (supra), the Full Bench had noted following three distinct dimensions for consideration:
i) Cases in which the benefits sought to be recovered from the employees were granted to them on the basis of any fraud, misrepresentation or any other act of deception;
ii) Cases in which the benefits sought to be recovered were 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 authorizing such grant regardless whether or not grant of benefits involved the performance of higher or more onerous duties by the employee concerned;
iii) Cases that do not fall in either one of the above two categories but where the nature of the benefit and extent is so unconnected with his service conditions that the employee must be presumed to have known that the benefit was flowing to him undeservedly because of a mistake by the authority granting the same.
9. It was pronounced by the Full Bench that in the Category -1, wherein the employee by reason of fraud, misrepresentation or any other act of deception, had obtained the benefit, he will be disentitled to retain the same and recovery of the amount can be effected. In Category-II, the Full Bench held that where the employees are recipient of the benefits extended to them on an erroneous interpretation or application of any rule, regulation, circular and instructions and have not in any way contributed to such erroneous interpretation nor have committed any fraud, misrepresentation or 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. Lastly, it was held that where the employee has an obligation to verify the reason of the windfall or the bounty that he has received, he is bound to refund the same as he is not lawfully entitled to the same.
10. From the facts and circumstances of the case, we are of the view that case of the respondent employee fall under the second category and by no means it can be construed that respondent employee was beneficiary of any bounty or windfall. Therefore, the alleged undertaking given by the respondent employee in 1997 will also pale into insignificance.
11. Hence, we find no infirmity in the order passed by the Tribunal, as the same is based upon correct interpretation of the judgments rendered by Hon'ble Apex Court and the view taken by the Full Bench of this Court in Budh Ram's case (supra).
Therefore, there is no merit in the present writ petition and the same is dismissed without any order as to costs.