Punjab-Haryana High Court
Suresh Kumar & Ors vs State Of Haryana & Ors on 21 November, 2024
Neutral Citation No:=2024:PHHC:153678
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
468
CWP-13973-2003
Date of decision : 21.11.2024
Suresh Kumar and another ....Petitioners
V/S
State of Haryana and others ....Respondents
CORAM : HON'BLE MR. JUSTICE NAMIT KUMAR
Present: Mr. Madan Pal, Advocate for the petitioners.
Mr. Ravi Dutt Sharma, D.A.G., Haryana.
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NAMIT KUMAR, J. (ORAL)
1. The petitioner has invoked the writ jurisdiction of this
Court by filing the instant petition under Articles 226/227 of the
Constitution of India, seeking a writ of certiorari, quashing the
impugned orders dated 06.08.2003 (Annexures P-3 and P-4), whereby
the benefit of additional increment w.e.f. 01.07.1992/18.07.1993 and
H.S.S. Scale w.e.f. 01.01.1994 granted to the petitioners by counting
their apprentice service has been withdrawn.
2. The brief facts, as have been pleaded in the petition, are
that petitioner No.1 joined as apprentice Signaler on 09.07.1983 and he
became Signaler on 19.07.1983. Similarly, petitioner No.2 joined as
apprentice Signaler on 18.07.1983 and became Signaler on 01.07.1985.
Their services were regularized w.e.f. 01.11.1986. The Government of
Haryana issued policy dated 07.08.1992 (Annexure P-1) for granting the
benefit of additional increment on completion of 08 years of service and
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consequently, both the petitioners were granted additional increment
after completion of 08 years of service. The said benefit has been
ordered to be withdrawn by the respondents vide orders dated
06.08.2003 (Annexures P-3 & P-4). It is the case of the petitioner that
no opportunity of personal hearing before passing the said orders was
afforded to the petitioners, therefore, the said orders are bad in law and
are liable to be set aside.
3. Written statement on behalf of the respondents has been
filed, wherein it has been stated that since the benefit of additional
increment was wrongly granted to the petitioners, therefore, notice
dated 18.07.2003 was issued to them, to which they submitted their
replies on 31.07.2003 & 30.07.2003, respectively and thereafter, the
impugned orders dated 06.08.2003 were passed re-fixing the pay of the
petitioners after withdrawing the said benefit.
4. The present petition was admitted on 10.01.2005 and
further recovery from the petitioners was stayed.
5. During the course of hearing, it has been submitted by the
learned State counsel that both the petitioner have retired from service
on attaining the age of superannuation on 31.12.2020 and 28.02.2021,
respectively and their pensionary benefits have already been released.
However, only a sum of Rs.8,000/- each was recovered from the
petitioners upto November, 2004.
6. Learned counsel for the petitioners submits that neither any
specific order withdrawing the benefit of additional increment has been
passed by the respondents nor an opportunity of personal hearing was
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afforded to the petitioners and vide impugned orders dated 06.08.2003,
their pay was re-fixed after withdrawing the benefit of additional
increment. He further submits that there was no representation on the
part of the petitioners and the benefit of additional increment was
granted by the respondents on their own while interpreting the policy
dated 07.08.1992.
7. Per contra, learned State counsel submits that the
apprentice service rendered by the petitioners cannot be counted for the
grant of benefit of additional increment on completion of 08 years of
service and since the services of the petitioners have been regularized
w.e.f. 01.11.1986, therefore, they are entitled for the additional
increment after completion of 08 years of regular service, however, they
were wrongly granted the benefit of additional increment by counting
their service w.e.f. 09.07.1983 and 18.07.1983, respectively, when they
joined the service as apprentice Signaler.
8. I have heard learned counsel for the parties and perused the
relevant documents with their able assistance.
9. Admittedly, both the petitioners have already retired from
service on attaining the age of superannuation on 31.12.2020 and
28.02.2021, respectively, and all the pensionary benefits have been
released to them. Recovery of Rs.8,000/- each was effected from the
petitioners upto November, 2004 and further recovery from them was
stayed vide order dated 10.01.2005 passed by this Court. The facts and
circumstances of the present case suggests that it is not the case of the
respondents that it was due to some fraud or misrepresentation of the
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petitioners that they were granted additional increment but it was
granted by the respondents on their own. Even if an excess amount was
paid to the petitioners, the same cannot be recovered from them. The
action of the respondents is totally contrary to the law laid down by the
Hon'ble Supreme Court in State of Punjab Vs. Rafiq Masih (White
Washer) and others : 2015(1) S.C.T. 195. 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
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."
10. In view of the above, this Court is of the considered view
that the case of the present petitioners is squarely covered by Clauses
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(i) & (v) of para 12 of the judgment of Hon'ble Supreme Court passed
in Rafiq Masih (White Washer) and others case (Supra).
Consequently, respondents are directed to refund the recovered amount
i.e. Rs.8,000/- each to the petitioners, within a period of 02 months from
the date of receipt of certified copy of this order.
11. Disposed of in the above terms.
21.11.2024 (NAMIT KUMAR)
kothiyal JUDGE
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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