Ajai Lamba, J.@mdashThis petition under Articles 226/227 of the Constitution of India has been filed praying for issuance of a writ in the nature of
certiorari quashing letter dated 25.5.2010 (Annexure P-3), to the extent it directs recovery from the petitioner.
2. Learned Counsel for the petitioner, at the outset, contends that the claim of the petitioner is limited to challenge to recovery only. Refixation of
pay is not under challenge.
3. Learned Counsel for the petitioner further contends that the issue has been considered by Full Bench of this Court while dealing with Budh Ram
and Ors. v. State of Haryana and Ors. 2009(3) PLR 511.
4. Learned Counsel for the petitioner has also contended that the petitioner did not play any fraud and did not misrepresent any fact before the
respondents so as to gain monetary benefits.
5. Learned Counsel for the petitioner further states that the petitioner would be satisfied if the petition is disposed of in terms of decision of this
Court rendered in CWP 697 of 2010 (Kaur Chand v. State of Punjab and Ors.), decided on 2.3.2010.
6. Learned Counsel for the respondent-State also states that the matter be disposed of in terms of judgment rendered in Kaur Chand''s case
(supra).
7. I have considered the issue.
8. The following needs to be extracted from Budh Ram''s case (supra), for consideration of the issue raised in this petition:
It is in the light of the above pronouncement, no longer open to the authorities granting the benefits, no matter erroneously, to contend that even
when the employee concerned was not at fault and was not in any way responsible for the mistake committed by the authorities, they are entitled to
recover the benefit that has been received by the employee on the basis of any such erroneous grant. We say so primarily because 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known that the benefit being granted to him is likely to be withdrawn at any subsequent point of time on what may be then said to be the correct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. Having induced that belief in the employee and made him change his position and arrange his affairs in a
manner that he would not otherwise have done, it would be unfair, inequitable and harsh for the Government to direct recovery of the excess
amount simply because on a true and correct interpretation of the rules, such a benefit was not due. It does not require much imagination to say
that additional monetary benefits going to an employee may not always result in accumulation of his resources and savings. Such a benefit may
often be utilized on smaller luxuries of life which the employee and his family may not have been able to afford had the benefit not been extended to
him. The employees can well argue that if it was known to them that the additional benefit is only temporary and would be recovered back from
them, they would not have committed themselves to any additional expenditure in their daily affairs and would have cut their coat according to their
cloth. We have, therefore, no hesitation in holding that in case the employees who are recipient of the benefits extended to them 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 they 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.
9. Relying on Budh Ram''s case (supra), this Court in Kaur Chand''s case (supra), has held in the following terms:
(6). Following the dictum in Budh Ram''s case (supra), the writ petition is allowed in part; the action of the respondents in ordering recovery of the
excess payments received by the petitioner as a result of Stepping-up of his pay or grant of ACP is hereby quashed. However, the impugned
order(s) to the extent of re-fixation of his pay and consequential re-determination of the retiral benefits are upheld. The recovery, if any, already
made from the petitioner shall be refunded to him within a period of four months from the date of receipt of certified copy of this order.
(7). Since the respondents have not filed any counter-reply/affidavit, it shall be open to them to verify the records and if it is found that the
petitioner had actually misrepresented the facts and/order played fraud etc. to gain the monetary benefits, to seek review of this order within a
period of six months from the date of receipt of a certified copy of this order.
10. In view of the common prayer of Learned Counsel for the parties, the petition is allowed in limited terms, in terms of the judgment rendered in
Kaur Chand''s case (supra), portion whereof has been extracted above.