Rajesh Kumar vs Punjab State Power Corporation Ltd And ...
2024 Latest Caselaw 7395 P&H

Punjab-Haryana High Court

Rajesh Kumar vs Punjab State Power Corporation Ltd And ... on 8 April, 2024

                                   Neutral Citation No:=2024:PHHC:047681



                                                       2024:PHHC:047681

         IN THE HIGH COURT OF PUNJAB & HARYANA
                     AT CHANDIGARH

262+109
                                                 CWP-8057-2022 (O&M)
                                                 Decided on : 08.04.2024

Rajesh Kumar                                                   .....Petitioner

                                  Versus

Punjab State Power Corporation Ltd. and others               .....Respondents


CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR

Present :    Mr. Pankaj Sharma, Advocate
             for the petitioner.

             Mr. Gauravdeep Singh Dhaliwal, Advocate
             for the respondents.

NAMIT KUMAR, J. (Oral)

CM-4205-CWP-2024

Prayer in the instant application filed under Section 151 of

CPC is for placing on record the affidavit of petitioner along with

document as Annexure P-7.

Allowed as prayed for subject to all just exceptions.

CWP-8057-2022

1. The petitioner has filed the instant writ petition under

Articles 226 and 227 of the Constitution of India seeking a writ of

mandamus directing the respondents to release the retirement benefits to

the petitioner i.e. gratuity, commuted pension, full pension along with

interest @ 18% per annum on the delayed payment of retiral benefits

and not to recover the amount of Rs.1,53,675/- from the pensionary

benefits/gratuity of the petitioner.

1 of 8

Neutral Citation No:=2024:PHHC:047681

2024:PHHC:047681

2. Brief facts of the case, as have been pleaded in the present

petition, are that the petitioner was initially appointed as Regular T-mate

in the Electricity Wing of the Municipal Corporation, Amritsar on

02.03.1988. Thereafter, he was promoted as Assistant Lineman on

05.10.2001 and Lineman in the year 2018 and retired as such on

30.09.2021. During his service tenure, the petitioner also got

proficiency step-up after 8 years of service w.e.f. 02.03.1996; 1st time

bound scale after completing 09 years of service on 05.10.2010 and 2nd

time bound scale after completing 16 years of service on 05.10.2017.

The respondent-Corporation issued a letter dated 30.07.2018 to the

petitioner vide which it was mentioned that in view of Finance Circular

No.05/2013, promotional increment given to the petitioner, at the time

of his promotion from Regular T-mate to Assistant Lineman on

05.10.2001, is liable to be taken back and after re-fixing his salary, an

amount of Rs.1,53,675/- is liable to be recovered from him. It was

further mentioned in the letter that after getting 16 years scale on

06.10.2017, the arrears upto 30.06.2018 has come out to Rs.8,653/- and

after deducting the said amount from Rs.1,53,675/-, the recovery of

Rs.1,45,022/- is liable to be effected from the petitioner. The petitioner

was asked to reply the said letter within 07 days. The petitioner after

receiving the said letter gave his detailed reply submitting that recovery

cannot be effected from him as per Finance Circular 56/1990 and

33/1988. Meanwhile, the petitioner retired from the respondent-

Corporation as Lineman on 30.09.2021, on attaining the age of

superannuation. When the petitioner was waiting for the retiral benefits

2 of 8

Neutral Citation No:=2024:PHHC:047681

2024:PHHC:047681

to be released to him then during verification of the service book of the

petitioner, respondent No.2 asked respondent No.3 to verify the service

book of the petitioner. During the verification, besides other objections,

an objection was raised that in view of Finance Circular No.05/2013,

salary of the petitioner is required to be re-fixed from 01.03.2011.

Earlier, the respondent-Corporation calculated the recovery amount

from the year 2001 but lateron respondent-Corporation decided to

calculate the recovery amount by re-fixing the salary of the petitioner

from the year 2010 onwards till the date of retirement. After re-fixing

the salary of the petitioner and other calculations, the recovery amount

comes to Rs.1,21,453/-. Hence this petition.

3. On issuance of notice of motion, reply on behalf of

respondents has been filed, in which it has been stated as under :-

"xx xx xx xx xx

3. It is respectfully submitted here reliance on Hon'ble Supreme Court judgment in the case of State of Punjab and others versus Rafiq Masih etc 2015(4) SCC 334 and Syed Abdul Qadir versus State of Bihar 2009(3) SCC 475 are not applicable to the instant case in hand as the petitioner opted for induction post as ALM and got the benefit of first time bound promotional scale after 9 years on 05.10.2010 and second time bound promotional scale after 16 years on 05.10.2017. It is pertinent to mention here that the process of recovery of excess amount paid to the petitioner had started before retirement of the petitioner on 30.07.2018 and proper correspondence was made in this regard. It is pertinent to mention here that nothing has been recovered from the retirement benefit/dues of the petitioner i.e. after pension, gratuity, CVO, GPF and Leave Encashment. All the pensionary dues have been paid to the petitioner.

            xx            xx              xx          xx         xx"




                                 3 of 8

                                   Neutral Citation No:=2024:PHHC:047681



                                                      2024:PHHC:047681

4. Learned counsel for the petitioner submits that the

petitioner has retired from service as Assistant Lineman on 30.09.2021

and although all the retiral benefits of the petitioner have been released

to him during the pendency of the present petition, however, the same

have been released after a considerable delay. He submits that now after

the retirement of the petitioner, recovery of Rs.1,21,453/- has been

ordered to be effected from the petitioner by re-fixing his salary from

the year 2010 to the year 2017 which is against the law laid down in

judgment of the Hon'ble Supreme Court passed in State of Punjab Vs.

Rafiq Masih (White Washer) and others : 2015(1) S.C.T. 195. He

further submits that since the retiral benefits of the petitioner were

released after a considerable delay, therefore, he is entitled for interest

on the delayed payment of retiral benefits in view of the law laid down

by a Full Bench of this Court in A.S. Randhawa Vs. State of Punjab

and others : 1997(3) S.C.T. 468 and J.S. Cheema Vs. State of Haryana

: 2014(13) RCR (Civil) 355. The details of payment of retiral dues is as

under :-

             Particulars              Amount        Date of       Paid
                                       (Rs.)      retirement

             Gratuity             9,84,555/-      30.09.2021   29.09.2022

             Commuted Pension 9,90,410/-          30.09.2021   10.10.2022

             Arrears of Pension 36,700/-          30.09.2021   01.09.2022

5. On the other hand, learned counsel for the respondents,

while referring to the averments made in the reply, submits that the

process of recovery of excess amount paid to the petitioner had started

4 of 8

Neutral Citation No:=2024:PHHC:047681

2024:PHHC:047681

before the retirement of the petitioner on 30.07.2018 and proper

correspondence was made in this regard. He submits that since all the

retiral benefits have been released to the petitioner and nothing has been

recovered from his retiral benefits, therefore, the present petition is

liable to be dismissed.

6. I have heard learned counsel for the parties and perused the

relevant documents.

7. It is the case of the petitioner that he stood retired as

Assistant Lineman on 30.09.2021 and after his retirement an amount of

Rs.1,21,453/- has been recovered from him by re-fixing his salary from

the year 2010 to the year 2017 and his retiral benefits were released

after a considerable delay.

8. The argument raised by learned counsel for the respondents

is not sustainable as even if an excess amount on the basis of wrong

fixation of pay was paid to the petitioner, the same cannot be recovered

from him after his retirement. The action of the respondent-Corporation

is totally contrary to the law laid down by the Hon'ble Supreme Court

in Rafiq Masih (White Washer) and others case (Supra). The relevant

portion of the aforesaid judgment is reproduced as under:-

"18. 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

5 of 8

Neutral Citation No:=2024:PHHC:047681

2024:PHHC:047681

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."

9. The petitioner is Class-III employee and the facts and

circumstances of the present case suggests that it is not the case of the

respondent-Corporation that it was due to some fraud or

misrepresentation of the petitioner that he was granted the excess

payment but it was granted by the respondent-Corporation on their own.

10. In view of the above, this Court is of the considered view

that the case of the present petitioner is squarely covered by the

judgment of Hon'ble Supreme Court passed in Rafiq Masih (White

Washer) and others case (Supra).

11. So far as the claim of the petitioner regarding payment of

interest on the delayed retiral benefits is concerned, it is an admitted fact

that since either before or after the retirement of the petitioner, no

departmental/criminal proceedings were pending against him, therefore,

his retiral benefits were required to be released within a reasonable time

6 of 8

Neutral Citation No:=2024:PHHC:047681

2024:PHHC:047681

after his retirement and the petitioner cannot be denied the benefit of

interest on the same.

12. A Full Bench of this Court in A.S. Randhawa Vs. State of

Punjab and others : 1997(3) S.C.T. 468 has held that where there is an

inordinate delay in releasing benefits and the delay is not justifiable,

employee will be entitled for interest. The relevant paragraph of said

judgment is as under:-

"Since a government employee on his retirement becomes immediately entitled to pension and other benefits in terms of the Pension Rules, a duty is simultaneously cast on the State to ensure the disbursement of pension and other benefits to the retiree in proper time. As to what is proper time will depend on the facts and circumstances of each case but normally it would not exceed two months from the date of retirement which time limit has been laid down by the Apex Court in M. Padmanabhan Nair's case (supra). If the State commits any default in the performance of its duty thereby denying to the retiree the benefit of the immediate use of his money, there is no gainsaying the fact that he gets a right to be compensated and, in our opinion, the only way to compensate him is to pay him interest for the period of delay on the amount as was due to him on the date of his retirement."

13. Apart from this, a Coordinate Bench of this Court in J.S.

Cheema Vs. State of Haryana : 2014(13) RCR (Civil) 355, had held

that an employee will be entitled for the interest on an amount which

has been retained by the respondents without any valid justification. The

relevant paragraph of the said judgment is as under: -

"The jurisprudential basis for grant of interest is the fact that one person's money has been used by somebody else. It is in that sense rent for the usage of money. If the user is compounded by any negligence on the part of the person with whom the money is lying it may result in higher rate

7 of 8

Neutral Citation No:=2024:PHHC:047681

2024:PHHC:047681

because then it can also include the component of damages (in the form of interest). In the circumstances, even if there is no negligence on the part of the State it cannot be denied that money which rightly belonged to the petitioner was in the custody of the State and was being used by it."

14. In view of the above factual position and settled principles

of law, the present petition is allowed and the order/letter dated

30.07.2018 (Annexure P-2) passed by the respondent-Corporation,

whereby an amount of Rs.1,53,675/- (which was reduced to

Rs.1,21,453/- later on) has been ordered to be recovered from the

petitioner, is quashed and if recovery has been made, the respondent-

Corporation is directed to refund the same and to pay interest @ 6% per

annum to the petitioner, on the delayed payment of retiral dues w.e.f.

01.12.2021 (i.e. after two months from the date of retirement) till the

actual date of payment, within a period of 03 months from the date of

receipt of certified copy of this order.

                                                       (NAMIT KUMAR)
08.04.2024                                                 JUDGE
Kothiyal

             Whether Speaking/reasoned          Yes/No
             Whether Reportable                 Yes/No




                                  8 of 8