Present: Mr. M.K.Dogra Advocate Vs. Harish Chander ...Petitioner - Court Judgment

SooperKanoon Citationsooperkanoon.com/1068857
CourtPunjab and Haryana High Court
Decided OnMar-11-2013
AppellantPresent: Mr. M.K.Dogra Advocate
RespondentHarish Chander ...Petitioner
Excerpt:
228 in the high court of punjab and haryana at chandigarh cwp no.14324 of 2012 (o&m) date of decision:11.03.2013 harish chander ...petitioner v/s. state of punjab and others ...respondents coram: hon'ble mr.justice augustine george masih. present: mr.m.k.dogra, advocate for the petitioner. ms.sudeepti sharma, dag, punjab. **** augustine george masih, j. (oral).petitioner has approached this court with a prayer that recovery of `2,56,859/- from his gratuity on account of passing of the order dated 03.01.2012 (annexure p-2) is not sustainable. counsel states that he does not challenge the merits of the order dated 03.01.2012. however, he submits in the light of judgment of the hon'ble supreme court in case chandi prasad uniyal and others versus state of uttarakhand and others 2012 volume 8 scc 417.no recovery could have been effected from the retrial benefits of the employee. he, therefore, contends that withheld amount of `2,56,859/- from the gratuity of the petitioner should be released to him. counsel for the respondents has asserted that once the order on the basis of which recovery is being effected has not been challenged by the petitioner on merits, recovery of the gratuity amount from the petitioner is fully justified. she, accordingly, presses for dismissal of the writ petition. i have considered the submissions made by counsel for the parties and have gone through the record of the case. admittedly, recovery which has been effected from the gratuity of the petitioner which is from the retrial cwp no.14324 of 2012 (o&m) -2- benefits and, therefore, the recovery thus effected from the petitioner falls within the exceptions as carved out by the supreme court in chandi prasad (supra).the hon'ble supreme court has gone to the extent of holding that recovery in such cases cannot be effected, if there is no misrepresentation or fraud played by an employee. in the present case, it is not the stand of the respondents that benefits which the petitioner gained while in service was either on the basis of his misrepresentation, fraud or mis-statement rather it was because of mis-interpretation of certain instructions. that being the position in the present case the recovery from the petitioner could not have been effected. in view of the above, the present writ petition is allowed. direction is issued to respondents to release the withheld amount of `2,56,859/- to the petitioner within a period of one month from the date of receipt of the certified copy of the order. the petitioner shall also be entitled to the statutory rate of interest on the delayed payment of this amount of gratuity which shall also be calculated and released to him within a further period of one month. (augustine george masih) march 11, 2013 judge divyanshi
Judgment:

228 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.14324 of 2012 (O&M) Date of Decision:11.03.2013 Harish Chander ...Petitioner V/s.

State of Punjab and others ...Respondents CORAM: HON'BLE Mr.JUSTICE AUGUSTINE GEORGE MASIH.

Present: Mr.M.K.Dogra, Advocate for the petitioner.

Ms.Sudeepti Sharma, DAG, Punjab.

**** AUGUSTINE GEORGE MASIH, J.

(Oral).Petitioner has approached this Court with a prayer that recovery of `2,56,859/- from his gratuity on account of passing of the order dated 03.01.2012 (Annexure P-2) is not sustainable.

Counsel states that he does not challenge the merits of the order dated 03.01.2012.

However, he submits in the light of judgment of the Hon'ble Supreme Court in case Chandi Prasad Uniyal and others versus State of Uttarakhand and others 2012 Volume 8 SCC 417.no recovery could have been effected from the retrial benefits of the employee.

He, therefore, contends that withheld amount of `2,56,859/- from the gratuity of the petitioner should be released to him.

Counsel for the respondents has asserted that once the order on the basis of which recovery is being effected has not been challenged by the petitioner on merits, recovery of the gratuity amount from the petitioner is fully justified.

She, accordingly, presses for dismissal of the writ petition.

I have considered the submissions made by counsel for the parties and have gone through the record of the case.

Admittedly, recovery which has been effected from the gratuity of the petitioner which is from the retrial CWP No.14324 of 2012 (O&M) -2- benefits and, therefore, the recovery thus effected from the petitioner falls within the exceptions as carved out by the Supreme Court in Chandi Prasad (supra).The Hon'ble Supreme Court has gone to the extent of holding that recovery in such cases cannot be effected, if there is no misrepresentation or fraud played by an employee.

In the present case, it is not the stand of the respondents that benefits which the petitioner gained while in service was either on the basis of his misrepresentation, fraud or mis-statement rather it was because of mis-interpretation of certain instructions.

That being the position in the present case the recovery from the petitioner could not have been effected.

In view of the above, the present writ petition is allowed.

Direction is issued to respondents to release the withheld amount of `2,56,859/- to the petitioner within a period of one month from the date of receipt of the certified copy of the order.

The petitioner shall also be entitled to the statutory rate of interest on the delayed payment of this amount of gratuity which shall also be calculated and released to him within a further period of one month.

(AUGUSTINE GEORGE MASIH) March 11, 2013 JUDGE Divyanshi