DakshIn Haryana Bijli Vitran Nigam and Others Vs. Harish Chand Sharma - Court Judgment

SooperKanoon Citationsooperkanoon.com/1128323
CourtPunjab and Haryana High Court
Decided OnFeb-11-2014
AppellantDakshIn Haryana Bijli Vitran Nigam and Others
RespondentHarish Chand Sharma
Excerpt:
lpa no.225 of 2014(o&m) 1 in the high court of punjab and haryana at chandigarh lpa no.225 of 2014(o&m) date of decision: 11.02.2014 dakshin haryana bijli vitran nigam and others …..appellants versus harish chand sharma ……respondents coram: hon’ble mr.justice jasbir singh hon’ble mr.justice harinder singh sidhu present: mr.mohnish sharma, advocate for the appellants jasbir singh, j. (oral) cm no.563 of 2014 this application has been filed for condonation of 91 days delay in filing the appeal. the application is accompanied by an affidavit. in view of reasons mentioned therein, it is allowed and delay stands condoned. lpa no.225 of 2014 (o&m) respondent – harish chand sharma entered service with the appellant in the year 1972 as ldc. during service career, he was promoted to the higher posts and retired from service on 31.7.2010 on attaining the age of superannuation. thereafter pension and other benefits were released in his favour on 10.8.2010. on 24.11.2010, the appellant withdrew 1st and 2nd acp scale and pay of the respondent was reduced from rs.33,840/- to rs.31,610/-. consequently, pension and other benefits were also decreased. respondent sent a representation followed by a legal notice seeking withdrawal of above said order, however, vide letter dated 22.5.2012 (p13).krishan gopal 2014.02.21 12:46 i attest to the accuracy of this order high court chandigarh lpa no.225 of 2014(o&m) 2 his claim was rejected. above orders were challenged in cwp no.20907 of 2012 which was allowed by the learned single judge on 9.10.2013, by observing as under:- “it is admittedly not the case of the respondents that the financial benefits were obtained by the petitioner by playing any fraud in an illegal manner. financial benefits granted to an employee cannot be withdrawn unless and until it is established that the benefits have been granted by fraud. in this context a reference can be made to judgment in case budh ram and others vs.state of haryana, 2009 (4) slr page 298, in which it has been held that benefits granted to an employee who has not committed any fraud to obtain such benefits may be stopped for future but amount already paid to the employees cannot be recovered from them. benefits given to an employee can be withdrawn only after giving him an opportunity of hearing but the recovery cannot be effected unless until it is established that there was an illegal act or fraud on the part of employee.”. it was noticed by the learned single judge that when 1st and 2nd acp scales were granted, no misrepresentation was made by the respondent. it was suo moto action of the appellants in granting those scales. by placing reliance upon full bench judgment of this court in budh ram and others vs.state of haryana, 2009 (4) slr page 298, order qua recovery was quashed and action in withdrawing 1st and 2nd acp scales from retrospective date i.e.1.1.1996 was held illegal. counsel for the appellants has contended that once it has come on record that benefit was given under some mistake, recovery was justified. krishan gopal 2014.02.21 12:46 i attest to the accuracy of this order high court chandigarh lpa no.225 of 2014(o&m) 3 we are not inclined to agree with the contention raised. it was held in the case of budh ram (supra).that if some benefit is given to an employee without any misrepresentation made by that employee, recovery cannot be effected. in the present case, the respondent had already retired from service. thereafter, without issuing any notice to him, 1st and 2nd acp pay scales were withdrawn. their lordships of the hon'ble supreme court in the case of syed abdul qadir and others v. state of bihar and others 2009(1) s.c.t.611, under similar circumstances, held as under:- “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 krishan gopal 2014.02.21 12:46 i attest to the accuracy of this order high court chandigarh lpa no.225 of 2014(o&m) 4 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.”. in the said case, it was noted that the employees concerned were at the verge of retirement. taking note of the same, recovery of the excess amount paid was quashed. same is the situation in the present case. respondent had already retired from service, his pensionary and other benefits were sanctioned and thereafter, suddenly, the department has woken up from slumber and order of withdrawal of 1st and 2nd acp scales from retrospective date was passed and recovery was ordered. action was not justified and has rightly been set aside by the learned single judge. no case is made out for interference. the appeal stands dismissed. (jasbir singh) judge 11.02.2014 (harinder singh sidhu) gk judge krishan gopal 2014.02.21 12:46 i attest to the accuracy of this order high court chandigarh
Judgment:

LPA No.225 of 2014(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.225 of 2014(O&M) Date of decision: 11.02.2014 Dakshin Haryana Bijli Vitran Nigam and others …..Appellants versus Harish Chand Sharma ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Harinder Singh Sidhu Present: Mr.Mohnish Sharma, Advocate for the appellants Jasbir Singh, J.

(Oral) CM No.563 of 2014 This application has been filed for condonation of 91 days delay in filing the appeal.

The application is accompanied by an affidavit.

In view of reasons mentioned therein, it is allowed and delay stands condoned.

LPA No.225 of 2014 (O&M) Respondent – Harish Chand Sharma entered service with the appellant in the year 1972 as LDC.

During service career, he was promoted to the higher posts and retired from service on 31.7.2010 on attaining the age of superannuation.

Thereafter pension and other benefits were released in his favour on 10.8.2010.

On 24.11.2010, the appellant withdrew 1st and 2nd ACP scale and pay of the respondent was reduced from Rs.33,840/- to Rs.31,610/-.

Consequently, pension and other benefits were also decreased.

Respondent sent a representation followed by a legal notice seeking withdrawal of above said order, however, vide letter dated 22.5.2012 (P13).Krishan Gopal 2014.02.21 12:46 I attest to the accuracy of this order High Court Chandigarh LPA No.225 of 2014(O&M) 2 his claim was rejected.

Above orders were challenged in CWP No.20907 of 2012 which was allowed by the learned Single Judge on 9.10.2013, by observing as under:- “It is admittedly not the case of the respondents that the financial benefits were obtained by the petitioner by playing any fraud in an illegal manner.

Financial benefits granted to an employee cannot be withdrawn unless and until it is established that the benefits have been granted by fraud.

In this context a reference can be made to judgment in case Budh Ram and others Vs.State of Haryana, 2009 (4) SLR Page 298, in which it has been held that benefits granted to an employee who has not committed any fraud to obtain such benefits may be stopped for future but amount already paid to the employees cannot be recovered from them.

Benefits given to an employee can be withdrawn only after giving him an opportunity of hearing but the recovery cannot be effected unless until it is established that there was an illegal act or fraud on the part of employee.”

.

It was noticed by the learned Single Judge that when 1st and 2nd ACP scales were granted, no misrepresentation was made by the respondent.

It was suo moto action of the appellants in granting those scales.

By placing reliance upon Full Bench judgment of this Court in Budh Ram and others Vs.State of Haryana, 2009 (4) SLR Page 298, order qua recovery was quashed and action in withdrawing 1st and 2nd ACP scales from retrospective date i.e.1.1.1996 was held illegal.

Counsel for the appellants has contended that once it has come on record that benefit was given under some mistake, recovery was justified.

Krishan Gopal 2014.02.21 12:46 I attest to the accuracy of this order High Court Chandigarh LPA No.225 of 2014(O&M) 3 We are not inclined to agree with the contention raised.

It was held in the case of Budh Ram (supra).that if some benefit is given to an employee without any misrepresentation made by that employee, recovery cannot be effected.

In the present case, the respondent had already retired from service.

Thereafter, without issuing any notice to him, 1st and 2nd ACP pay scales were withdrawn.

Their Lordships of the Hon'ble Supreme Court in the case of Syed Abdul Qadir and others v.

State of Bihar and others 2009(1) S.C.T.611, under similar circumstances, held as under:- “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 Krishan Gopal 2014.02.21 12:46 I attest to the accuracy of this order High Court Chandigarh LPA No.225 of 2014(O&M) 4 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.”

.

In the said case, it was noted that the employees concerned were at the verge of retirement.

Taking note of the same, recovery of the excess amount paid was quashed.

Same is the situation in the present case.

Respondent had already retired from service, his pensionary and other benefits were sanctioned and thereafter, suddenly, the department has woken up from slumber and order of withdrawal of 1st and 2nd ACP scales from retrospective date was passed and recovery was ordered.

Action was not justified and has rightly been set aside by the learned Single Judge.

No case is made out for interference.

The appeal stands dismissed.

(Jasbir Singh) Judge 11.02.2014 (Harinder Singh Sidhu) gk Judge Krishan Gopal 2014.02.21 12:46 I attest to the accuracy of this order High Court Chandigarh