Doaba Co-Operative Milk ... vs Gursharan Singh Saini And Anr
2023 Latest Caselaw 8741 P&H

                                                         Neutral Citation No:=2023:PHHC:080670




CM-5143-C-2023 in/and                                     2023:PHHC:080670
RSA-1776-2017
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        IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH


(106)                                          CM-5143-C-2023 in/and
                                               RSA-1776-2017
                                               Date of Decision : 01.06.2023

Doaba Co-operative Milk Producers Union Limited
                                                                        ...Appellant

                                    Versus

Gursharan Singh Saini and another
                                                                    ...Respondents


CORAM:      HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI


Present:    Ms. Sehar Navjeet Singh Sandhu, Advocate for
            Mr. Kannan Malik, Advocate for the appellant.

            ***

Harsimran Singh Sethi J. (Oral)

CM-5143-C-2023

Present application has been filed for recalling the order

dated 13.04.2023 (Annexure A-1), by which, the present appeal was

dismissed for non-prosecution.

Keeping in view the averments made in the application,

which is duly supported by an affidavit, the same is allowed. The order

dated 13.04.2023 (Annexure A-1) is recalled and the appeal is restored to

its original number and status.

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CM-5143-C-2023 in/and                                2023:PHHC:080670
RSA-1776-2017


RSA-1776-2017

1. The present regular second appeal has been filed challenging

the judgments and decrees of the courts below dated 27.01.2015 and

10.11.2016, by which the suit filed by the contesting respondent-plaintiff-

Gursharan Singh Saini, seeking the relief of retiral benefits along with the

interest has been allowed.

2. Certain facts needs to be mentioned herein for correct

appreciation of the issue in hand.

3. Respondent-plaintiff was appointed as a Clerk/Time Keeper

on temporary basis on 20.01.1981 with the appellant-defendant.

Thereafter, his services were regularized as Clerk on 01.07.1982. On

01.03.1986, the respondent-plaintiff was promoted as Accounts Clerk and

as Junior Accountant w.e.f. 02.03.1996 and ultimately, he retired from

service on 30.11.2009.

4. It may be noticed that while releasing the pensionary

benefits admissible to the respondent-plaintiff in respect of service

rendered by him, a sum of ₹81,486/- was deducted on the account that

the said amount has been received as a commission by the respondent-

plaintiff from the Post Office on the deposit of the money, which is illegal

and amounts to misconduct. The said recovery done from the retiral

benefits was challenged by the respondent-plaintiff on the ground that the

money has been paid by the Post Office to him and while he was in

service, no proceeding was initiated against him by treating the said

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action as a misconduct and even upto the date of recovery of the said

amount from the retiral benefits, there was no specific order passed for

the recovery of the said amount, hence, in the absence of any order

seeking the recovery of the amount, no recovery from the retiral benefits

could have been done by the appellant. The said contention of the

respondent-plaintiff was accepted by the courts below keeping in view

the evidence, which has come on record and a direction to the appellant-

defendant was issued that the amount of ₹78,806/-, which has been

deducted while releasing the pensionary benefits, be released to him

along with interest.

5. Further, a sum of ₹78,806/- was deducted qua the payment

of house rent for the period December, 2009 to October, 2010, which

deduction has also been held to be bad by the courts below on the ground

that the said deduction has been made without following the rules of

natural justice and the same is impermissible. Hence, the present regular

second appeal.

6. Learned counsel for the appellant argues that once certain

amount for which the respondent-plaintiff was not entitled for, were

released to him, the recovery of the same from the retiral benefits of the

respondent-plaintiff could have been done by the department being the

public money and the findings recorded by the courts below that in the

absence of any order passed for the recovery of the amount received by

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the respondent-plaintiff from the Post Office, cannot be recovered from

his retiral benefits, are liable to be treated as perverse.

7. It may be noticed that it is a settled principle of law that in

case any order of the employer visits the employee concerned with penal

consequences, the rules of natural justice have to be adhered while

passing such a punitive order. In the present case, the recovery of

amount has been done from the pensionary benefits of the respondent-

plaintiff and that too without passing so as to hold the respondent-

plaintiff liable for the said recovery. Further, learned counsel for the

appellant-defendant has not been able to rebut the fact that no

opportunity to defend was extended before effecting the recovery from

the pensionary benefit.

8. It is a settled principle of law settled by the Hon'ble Supreme

Court of India in Civil Appeal No. 2265 of 2011 titled as Chamoli

District Co-operative Bank Ltd through its Secretary/Mahaprandhak

and another vs. Raghunath Singh Rana and others, 2016(12) SCC 204,

decided on 17.05.2016 and in Civil Appeal No. 9417 of 2019 titled as

M/s Daffodills Pharmaceuticals Ltd. and another vs. State of U.P. and

another 2019 (12) JT 283, decided on 13.12.2019, that where any order

passed by the authority concerned causes prejudice to an employee,

especially financial liability, an opportunity of hearing is must and no

order causing prejudice to an employee can be passed by an employer

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unilaterally. The relevant para of Daffodills Pharmaceuticals's case

(supra) is as under:-

"15. In the present case, even if one assumes that Surender Chaudhary, the accused in the pending criminal case was involved and had sought to indulge in objectionable activities, that ipso facto could not have resulted in unilateral action of the kind which the State resorted to- against Daffodils, which was never granted any opportunity of hearing or a chance to represent against the impugned order. If there is one constant lodestar that lights the judicial horizon in this country, it is this: that no one can be inflicted with an adverse order, without being afforded a minimum opportunity of hearing, and prior intimation of such a move. This principle is too well entrenched in the legal ethos of this country to be ignored, as the state did, in this case.

16. The High Court, in the opinion of this court, fell into error in holding that in matters of award of public contracts, the scope of inquiry in judicial review is limited. Granted, such jurisdiction is extremely circumscribed; no doubt the court had refused to grant relief to Daffodils against its plea of wrongful rejection of its tender. However, what the impugned judgment clearly overlooks is that the action of the state, not to procure indefinitely, on an assumption of complicity by Daffodils, was in flagrant violation of principles of natural justice."

The relevant paragraph of the Chamoli's case (supra) is as

under:-

"19. The compliance of natural justice in domestic/disciplinary inquiry is necessary has long been

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established. This Court has held that even there are no specific statutory rule requiring observance of natural justice, the compliance of natural justice is necessary. Certain ingredients have been held to be constituting integral part of holding of an inquiry. The Apex Court in Sur Enamel and Stamping Works Pvt. Ltd. v. Their Workmen reported in (1964) 3 SCR 616 has laid down following:-

"... An enquiry cannot be said to have been properly held unless, (i) the employee proceeded against has been informed clearly of the charges levelled against him, (ii) the witnesses are examined - ordinarily in the presence of the employee - in respect of the charges, (iii) the employee is given a fair opportunity to cross-examine witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the inquiry officer records his findings with reasons for the same in his report."

9. Keeping in view the above cited principle of law, the action

of recovery of amount from the respondent-plaintiff has rightly been held

to be bad by the courts below.

10. Even otherwise, the said recoveries have been done after the

retirement and as per the settled principle of law settled by 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, no recovery can be done from

a retired employee, hence, even on the said account, the recoveries of the

amount which were done from the pensionary benefits of the respondent-

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plaintiff, cannot be upheld and have rightly been set-aside by the courts

below. 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.

(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."

11. Learned counsel for the appellant-defendant raises an

argument that as the action of the appellant-defendant in recovering the

amount is being set-aside due to the violations of the principles of natural

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justice, the appellant-defendant be given an opportunity to pass

appropriate order after observing the rules of natural justice.

12. Though, in the normal circumstances, the said argument

needs to be accepted but in the present case, it is a conceded position that

the respondent-plaintiff has already retired from service since long, the

said request will be too harsh to be accepted. Even otherwise, the post on

which the respondent-plaintiff was working, is not pensionable and as per

the settled principle of law, once the post is not pensionable and master

and servant relationship has already ceased, even the pending disciplinary

proceedings cannot continue, hence, keeping in view the facts and

circumstances of this case, the liberty being sought by the learned

counsel for the appellant-defendant cannot be extended.

13. No other point was raised.

14. Keeping in view the facts and evidence, which came on

record, learned counsel for the appellant-defendant has not been able to

prove that the findings recorded by the courts below are perverse so as to

invite any interference by this Court.

15. Dismissed.

June 01, 2023                               (HARSIMRAN SINGH SETHI)
kanchan                                              JUDGE

             Whether speaking/reasoned : Yes/No
             Whether reportable       : Yes/No




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