Lakhwinder Bhagat vs Punjab State Power Corporation Limited ...
2024 Latest Caselaw 8546 P&H

Punjab-Haryana High Court

Lakhwinder Bhagat vs Punjab State Power Corporation Limited ... on 23 April, 2024

                                  Neutral Citation No:=2024:PHHC:054883



                                                      2024:PHHC:054883

        IN THE HIGH COURT OF PUNJAB & HARYANA
                    AT CHANDIGARH

238
                                                 CWP-4562-2020
                                                 Decided on : 23.04.2024

Lakhwinder Bhagat                                             .....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. Tarun Vir Singh Lehal, Advocate for the respondents.

NAMIT KUMAR, J. (Oral)

1. The petitioner has filed the instant writ petition under

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

certiorari for quashing the order dated 29.08.2019 (Annexure P-3)

passed by respondent No.3, whereby an amount of Rs.1,38,403/- has

been deducted and recovered from the death-cum-retirement gratuity of

the petitioner after his retirement and further sought a writ of mandamus

directing the respondents to restore the proficiency step up given in

1996 and promotional increment given on 16.04.1999 to the petitioner

by re-fixing the salary w.e.f. 01.03.1996 and to refund the recovered

amount to the petitioner along with interest @ 18% per annum.

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 and after 8 years of his service, he got one proficiency step

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in the year 1996. Thereafter, he was promoted as Assistant Lineman on

16.04.1999 and as Lineman on 09.03.2016 and retired as such on

30.06.2019, on attaining the age of superannuation. There was nothing

adverse against the petitioner in his entire service record. He had

completed all the formalities required for grant of retiral and other

service benefits and nothing more was required to be done by the

petitioner. When the petitioner was waiting for the retiral benefits to be

released to him, he came to know that recovery of certain amount has

been made from his gratuity as per Finance Circular No.1/2003. As per

the said circular the benefit of grant of proficiency step up increments

earlier allowed between 1996 to 1999 was discontinued. After re-fixing

the salary, the respondent-Corporation deducted the amount from the

gratuity of the petitioner. 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

2. That the present writ petition is liable to be dismissed on the ground that an amount of Rs. 138403/- was recovered from the DCRG of the petitioner after scrutinizing the service documents of the petitioner. The petitioner was initially appointed as Regular Team mate with the Municipal Corporation, Amritsar on 02.03.1988. Thereafter the petitioner was promoted to the post of Assistant Lineman on 16.04.1999. The benefit of 8 years proficiency step up was granted to the petitioner on 02.03.1996 which was wrongly given to petitioner because grant of proficiency step up was discontinued from 01-01- 1996 vide FC No.1/2003 (Annexure R/1). The finance circular 05/2013 dated 07/01/2013 was issued by PSPCL (Annexure P-5) regarding RTM (Regular Team Mate) post treated as Induction post and entitlement of 1st and 2nd

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Time Bound Promotional Scale (TBPS) of the post of Regular Team Mate (RTM). It is submitted that there is a condition in this circular that the employees opting for RTM as induction post shall be entitled to promotional benefits. If the employee is opting ALM (Assistant Lineman) as induction post then he shall not be entitled to promotional benefits. This circular is applicable w.e.f. 01.01.1986. In this case the petitioner got 1st TBPS from the post of ALM (Induction Post) on 17.04.2008 and 2nd TBPS on dated 17.04.2015 after completion of 16 years of service as ALM. The petitioner did not opt for RTM as induction post so, it is presumed that the petitioner does not want to change his induction post from ALM to RTM. Thus the respondents had rightly recovered the excess amount from the petitioner which was disbursed to the petitioner as promotional increment & by the way of proficiency step up.

3. That the present writ petition is liable to be dismissed on the ground that the petitioner was posted to the post of Assistant Lineman on 03.10.2001, however, the the petitioner is not entitled to the benefit of promotional increment from the post of RTM to ALM as the ALM iwas fixed as his induction post.

4. That the present writ petition is liable to be dismissed on the ground that the fact regarding payment of excess amount came to the knowledge of this office while scrutinizing the service record of the petitioner. The respondents had recovered only that amount from the petitioner which has been excessively paid to the petitioner after his posting as Assistant Lineman, as promotional increment from the post of RTM to ALM and proficiency step up increment from 02-03-1996 was discontinued from 01-01-1996 vide FC No. 1/2003. The petitioner is not entitled to unjust enrichment at the cost of public money and moreover, the entire facts were well within the knowledge of the petitioner. Office of the petitioner also issued a letter vide memo no:6235 dated :17-10-2019 (Annexure P-5) in which the petitioner was asked to deposit the amount of recovery on account of objection being raised by Audit office, EAD, Patiala.

         xx           xx              xx          xx         xx"



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4. Learned counsel for the petitioner submits that the

petitioner has retired from service as Lineman on 30.06.2019 and after

his retirement, an amount of Rs.1,38,403/-, being alleged excess

payment made to him, has been ordered to be recovered from his

gratuity on 29.08.2019. He submits that the recovery has been effected

from the petitioner without passing any specific order and without

issuance of any show cause notice or personal hearing in unilateral

manner, which is not only in violation of the principles of natural justice

but also 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. During the course of hearing, learned

counsel for the petitioner confines his prayer qua recovery of an amount

deducted from the gratuity of the petitioner.

5. On the other hand, learned State counsel, while referring to

the averments made in the reply, submits that the petitioner had wrongly

been granted the benefit of 8 years proficiency step up on 02.03.1996

because grant of proficiency step up was discontinued from 01.01.1996

vide FC No.1/2003 and the said fact has come to the knowledge of the

Corporation while scrutinizing the service record of the petitioner.

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

Lineman on 30.06.2019 and after his retirement an amount of

Rs.1,38,403/- has been ordered to be recovered from his gratuity vide

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gratuity payment order dated 29.08.2019, on the ground that he had

wrongly been granted the benefit of 8 years proficiency step up on

02.03.1996.

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:-

"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

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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 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, who was working

against Class III post, that he was granted the benefit of 8 years

proficiency step up on 02.03.1996 but it was granted by the respondent-

Corporation on their own. Recovery has been made on 29.08.2019 i.e.

after a span of 23 years.

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

that the case of the present petitioner is squarely covered by Clauses (i),

(ii) and (iii) of the judgment of Hon'ble Supreme Court passed in Rafiq

Masih (White Washer) and others case (Supra).

11. Further, the recovery has been ordered by the respondents

in violation of the principle of natural justice as neither any show cause

notice was issued to the petitioner nor he was granted an opportunity of

personal hearing.

12. Consequently, the present petition is allowed and the

impugned order dated 29.08.2019 (Annexure P-3), passed by

respondent No.3, to the extent an amount of Rs.1,38,403/- has been

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recovered from the gratuity of the petitioner, is quashed and the

respondents are directed to refund the said amount of Rs.1,38,403/- to

the petitioner, along with interest @ 6% per annum from the date it was

due 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)
23.04.2024                                                 JUDGE
Kothiyal

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




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