Punjab-Haryana High Court
B.P. Sharma vs Uttar Haryana Bijli Vitran Nigam ... on 2 August, 2022
CWP-21747-2021 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(205) CWP-21747-2021 (O&M)
Date of Decision : August 02, 2022
B.P. Sharma .. Petitioner
Versus
Uttar Haryana Bijli Vitran Nigam Limited and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. V.D. Sharma, Advocate, for the petitioner.
Mr. Dhananjay Mittal, Advocate, for the respondents.
HARSIMRAN SINGH SETHI J. (ORAL)
Learned counsel for the petitioner argues that though, in the
present petition, the challenge is also to the withdrawal of the benefit of
ACP but the petitioner restricts his claim in the present petition with regard
to the recovery, which is being done after withdrawing the benefit of ACP
which was extended to him in the year 2017.
As per the facts mentioned in the petition, the petitioner retired
from service on 31.03.2006. The respondents issued a clarification on
06.01.2017 (Annexure P-2) to the effect that where, the experience required
for promotion under the rules governing the service, is more than the period
prescribed for the grant of ACP, the rules should be amended suitably so as
to bring them in consonance with Rules for the grant of ACP. Keeping in
view the said letter, the petitioner was extended the concession of ACP on
28.03.2017. At the time when the petitioner retired, the petitioner was not
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eligible for promotion keeping in view the experience provided but, keeping
in view the letter issued by the respondents dated 06.01.2017 (Annexure P-
2), the petitioner was extended the benefit of ACP. After the grant of the
benefits of ACP, the consequential benefits were also extended to the
petitioner including the arrears and his pay was also re-fixed accordingly.
After the grant of the benefit to the petitioner, the respondents
realize that the petitioner has already retired even prior to the issuance of the
policy Annexure P-2, and the said policy was implemented retrospectively
qua the petitioner, the benefit of ACP extended to the petitioner on
28.03.2017 was withdrawn by the respondents by passing the impugned
order dated 06.10.2021 (Annexure P-9) and directed that excess amount
paid to the petitioner, be recovered. The said withdrawal is under challenge
in the present petition.
Learned counsel for the petitioner argues that though the
withdrawal of the ACP as extended to the petitioner vide order dated
28.03.2017 (Annexure P-4) is also under challenged but the petitioner does
not wish to press the said claim but only restricts his claim with regard to
the recovery of the excess amount which is being sought to be recovered
from the petitioner after withdrawing the said benefits, which is
impermissible as the petitioner has already retired from service.
After notice of motion, the respondents have filed the reply
where, they have justified that the grant of the benefit of ACP to the
petitioner vide order dated 28.03.2017 (Annexure P-4) was erroneous and
order dated 06.01.2017 (Annexure P-2) was wrongly interpreted by the
respondents and hence, the mistake was rectified by the respondents by
withdrawing the benefit of ACP extended to the petitioner with
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retrospective effect.
Learned counsel for the respondents submits that as the main
benefits have been withdrawn, the excess amount paid to the petitioner is
liable to be recovered being the public money.
I have heard learned counsel for the parties and have gone
through the record with their able assistance.
The only question which arises for determination in the present
petition is whether, the excess amount paid to the petitioner can be
recovered. Nothing has come on record that the petitioner misrepresented in
any manner to claim the benefit, which was extended to him on 28.03.2017
by which, the benefit of ACP was extended to him with retrospective effect.
Once, there is no misrepresentation on part of the petitioner, the excess
amount paid by the respondents themselves, cannot be recovered keeping in
view the settled principle of law settled by the Hon'ble Supreme Court of
India in Civil Appeal No.7115 of 2010 titled as Thomas Daniel versus
State of Kerala and others, decided on 02.05.2022. According to the said
judgment, once an employee has not misconducted himself or has
misrepresented or has not played any fraud so as to get the benefit, though
not entitled for, the excess amount paid cannot be recovered. The relevant
paragraph of the said judgment is as under:-
"(9) This Court in a catena of decisions has consistently
held that if the excess amount was not paid on account of any
misrepresentation or fraud of the employee or if such excess
payment was made by the employer by applying a wrong
principle for calculating the pay/allowance or on the basis of a
particular interpretation of rule/order which is subsequently
found to be erroneous, such excess payment of emoluments or
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allowances are not recoverable. This relief against the
recovery is granted not because of any right of the employees
but in equity, exercising judicial discretion to provide relief to
the employees from the hardship that will be caused if the
recovery is ordered. This Court has further held that if in a
given case, it is proved that an employee had knowledge that
the payment received was in excess of what was due or wrongly
paid, or in cases where error is detected or corrected within a
short time of wrong payment, the matter being in the realm of
judicial discretion, the courts may on the facts and
circumstances of any particular case order for recovery of
amount paid in excess."
Further, even as per the judgment of the Hon'ble Supreme
Court of India in State of Punjab and others Vs. Rafiq Masih (White
Washer) etc., 2015(1) S.C.T., 195, once an employee has already retired, no
excess amount paid can be recovered. The relevant paragraph of the said
judgment is as under:-
"12. It is not possible to postulate all situations of
hardship, which would govern employees on the issue of
recovery, where payments have mistakenly been made by the
employer, in excess of their entitlement. Be that as it may,
based on the decisions referred to herein above, we may, as a
ready reference, summarise the following few situations,
wherein recoveries by the employers, would be impermissible
in law:-
(i) Recovery from employees belonging to Class-III and
Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who
are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment
has been made for a period in excess of five years, before the
order of recovery is issued.
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(iv) Recovery in cases where an employee has wrongfully
been required to discharge duties of a higher post, and has
been paid accordingly, even though he should have rightfully
been required to work against an inferior post.
(v) In any other case, where the Court arrives at the
conclusion, that recovery if made from the employee, would be
iniquitous or harsh or arbitrary to such an extent, as would far
outweigh the equitable balance of the employer's right to
recover."
Learned counsel for the respondents has not been able to
differentiate the case of the petitioner from the law cited hereinbefore so as
to contend that the recovery of the excess amount can be done from the
petitioner.
Keeping in view the above, though the claim of the petitioner
only with respect of the recovery of the excess amount paid is allowed. The
respondents will be treated well within their right to withdraw the benefit of
ACP but not the excess amount paid on the said account.
The present writ petition is allowed in above terms.
August 02, 2022 (HARSIMRAN SINGH SETHI)
harsha JUDGE
Whether speaking/reasoned : Yes
Whether reportable : No
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