[Cites 7, Cited by 0]
Punjab-Haryana High Court
Pawan Kumar And Ors vs Uhbvn Ltd And Anr on 10 December, 2025
CWP-19711-2024 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-19711-2024 (O&M)
Pawan Kumar and others
... Petitioners
Vs.
Uttar Haryana Bijli Vitran Nigam Limited and another
... Respondents
Reserved on: 13.11.2025
Pronounced on: 10.12.2025
Uploaded on: 10.12.2025
Whether only the operative part of the judgment is pronounced ? No
Whether full judgment is pronounced ? Yes
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. R.K. Malik, Senior Advocate with
Mr. Ankur Sheoran, Advocate
for the petitioners.
Mr. D.S. Patwalia, Senior Advocate with
Mr. A.S. Chadha, Advocate
for the respondents.
*******
HARPREET SINGH BRAR, J.
1. Present civil writ petition has been filed under Articles 226/227 of
the Constitution of India for issuance of a writ in the nature of certiorari
seeking quashing of the order dated 06.08.2024 (Annexure P-12), vide which,
while directing to refix/disburse the pay/pension w.e.f. 01.09.2015 by
withdrawing the benefit of notional pay extended to the employees/retirees
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from the date of their actual promotion as Senior Accountants, recovery of
excess amount paid to them was ordered. Further, to quash the decision taken
by the Board of Directors on 29.07.2024, vide which the benefit of pay scale
notionally fixed w.e.f. 01.01.2006 and actually granted w.e.f. 01.09.2015 was
ordered to be withdrawn. A further prayer is made for a declaration to the effect
that the petitioners were rightly granted the benefit of pay scale prior to
01.09.2015 and actually w.e.f. 01.09.2015 and the respondents do not have the
jurisdiction to reduce the same or effect recovery after about 10 years.
FACTUAL BACKGROUND
2. On 27.11.2009, the Board of Directors of the respondent-Nigam
approved the decision to equate the pre-revised pay scales of Deputy General
Manager, General Manager, Chief General Manager in the Finance and
Accounts cadre with that of Executive Engineer (XEN), Superintending
Engineer and Chief Engineer, respectively, w.e.f. 01.01.2006. It was further
decided that the revised pay scale and time scale may be allowed to the officers
of the said cadre upto 01.01.2006 on notional basis and thereafter, in cash.
Initially, a condition was imposed in this regard i.e. approval from the Haryana
Bureau of Public Enterprise (for short 'HBPE') was made necessary. However,
HBPE did not approve the case of some of the petitioners, which resulted into
filing of CWP-9262-2012 before this Court, whereby this condition was
challenged and by holding that the HBPE has no role to play, the said writ
petition was allowed vide judgment dated 12.09.2013 (Annexure P-2).
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However, the Board of Directors was given the liberty to implement the
decision regarding revision of pay scales from a date it deems appropriate. The
respondent-Nigam preferred an appeal by way of filing LPA-383-2014, which
was dismissed on 18.02.2015 (Annexure P-3), followed by dismissal of Special
Leave to Appeal (C) No.21263 of 2015 filed against the same, vide order dated
14.08.2015 (Annexure P-4).
3. Thereafter, vide order dated 31.08.2015 (Annexure P-5), the
decision of the Board dated 27.11.2009 was implemented w.e.f. 01.09.2015.
The pay of all the petitioners was fixed notionally upto 31.08.2015 and
payment in actual cash was made w.e.f. 01.09.2015. However, the Chief
General Manager, with the approval of Managing Director, decided to
withdraw the benefit of notional fixation of the pay of the petitioners prior to
01.09.2015 and reduced the pay/pension of the petitioners and further directed
to effect recovery of the excess amount disbursed to them.
CONTENTIONS
4. Learned senior counsel for the petitioners, inter alia, contended
that undisputedly, the Board of Directors took a decision on 27.11.2009 to fix
the pay of the petitioner notionally upto 01.01.2006 and thereafter, actual cash
be paid. Subsequently, on 31.08.2015, the Board took a decision that actual
cash be paid w.e.f. 01.09.2015 instead. Since the pay of the petitioners was
notionally fixed prior to 01.09.2015, they were receiving benefits accordingly.
Thus, the impugned order dated 06.08.2024 (Annexure P-12), whereby these
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benefits were withdrawn and recovery was ordered, is untenable, as the earlier
decision in this regard was never withdrawn. Further, the audit report of the
Principal Accountant General (Audit), Haryana obtained by the respondent-
Nigam clearly indicates that the pay scale was correctly fixed in line with the
decisions taken by the Board on 27.11.2009 and 24.07.2015. However, this
report was not taken into consideration before passing the impugned order
(Annexure P-12). Learned senior counsel further contended that the Hon'ble
Supreme Court in Thomas Daniel Vs. State of Kerala and others, 2022 AIR
SC 2153 has settled the controversy by holding that if the excess payment has
been made by the employer, the same cannot be recovered from the employee,
if there has been no misrepresentation or fraud on part of the latter. Moreover,
in view of the judgment rendered by the Hon'ble Supreme Court in State of
Punjab Vs. Rafiq Masih, 2015(1) SCT 195 and the instructions dated
20.01.2017 (Annexure P-13), duly approved by the Whole Time Directors vide
order dated 07.06.2018, no recovery can be effected from retired employees,
when the said excess payment was made over five years ago. Notably,
petitioners No.1 to 7 are already retired while Deepak Jain and Harshvardhan
have already passed away. Additionally, all the petitioners had received the
relevant benefits w.e.f. 01.09.2015, thus, over five years have passed and no
recovery can be effected at this stage. Lastly, the Board of Directors had duly
approved the decision to grant the said notional and actual benefits to the
petitioners, as discernible from the decisions dated 27.11.2009/04.12.2009
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(Annexure P-1) and 31.08.2015 (Annexure P-5). Now, in its meeting held on
29.07.2024, the Board has changed its earlier decision, even though it was
passed by the competent authority. The right accrued to the petitioners by
virtue of a decision taken by a competent authority cannot be taken away
retrospectively, after efflux of over 15 years.
5. Per contra, learned senior counsel for the respondents argued that
the petitioners were promoted to the post of Senior Accounts Officer w.e.f. the
year 2002. As a matter of fact, the petitioners have taken undue advantage of
their position and fixed their own pay arbitrarily, causing a huge financial loss
to the respondent-Nigam. While the benefits of the revision of pay scales had
to be granted w.e.f. 01.09.2015, the petitioners granted themselves benefits of
the same w.e.f. the date of their promotion, which is prior in time. A copy of
one such order is available on record as Annexure R-1. Since the excess
amount was paid to the petitioners by playing fraud on the respondent-
Corporation, they cannot seek shelter of Thomas Daniel's case (supra) or
Rafiq Masih's case (supra). Learned senior counsel emphasized that the files
regarding revamping of finance accounts, audit wing and the notings with
respect to fixation of pay of Senior Accounts Officers were declared
'misplaced' by the officers of the department of the petitioners. These files
contained detailed notings, orders, letters with respect to the benefits of
revision of pay scales granted to Senior Accounts Officers in the year 2015, in
pursuance of the decision of the Board. The instance of fraud becomes rather
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self-evident by the fact that the petitioners, at that point of time, were at the
helm of the accounts department, with complete control over these files. In
order to cover his tracks, the Financial Advisor of the concerned department
addressed a letter (Annexure R-3) to his own office and also wrote a letter
(Annexure R-4) to the police authorities to file a complaint with respect to
missing files. Further, Rachna Garg, Senior Accounts Officer vide letter dated
12.03.2021 (Annexure R-6) wrote to the Superintendent of Police that no
single person can be held responsible for the files being misplaced. She herself
is a beneficiary of grant of revised pay scales retrospectively, who has also
been served identical notices and recovery orders, however, she has not
approached this Court against them.
OBSERVATIONS AND ANALYSIS
6. Having heard learned counsel for the parties and after perusing the
record of the case with their able assistance, it transpires that on 27.11.2009,
the Board of Directors of the respondent-Nigam approved the decision to
equate the pre-revised pay scales of DGM, GM, CGM in the Finance and
Accounts cadre with that of XEN, SE and CE, respectively, w.e.f. 01.01.2006.
However, the same was never expressly implemented, as application of the
said decision was made subject to approval of the HBPE. This condition was
challenged by some petitioners in CWP-9262-2012 before this Court, which
was eventually set aside vide judgment dated 12.09.2013 (Annexure P-2).
Further, this Court granted the liberty to the Board of Directors to decide the
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date of implementation for the revised pay scale. The relevant part is
reproduced below:
"In view of the above said circumstances, present writ petition is
allowed and the order Annexure P-8 dated 2.12.2012 declining the
proposal of the Board of Directors by the Standing Committee of
Bureau of Public Enterprises communicated through the
Superintendent Power for Financial Commissioner and Principal
Secretary to the Government of Haryana, Power Department, is
hereby set aside. It will be open to the petitioners to seek
implementation of the order of the Board of Directors and
consequential reliefs in accordance with law as the financial
burden is to be borne by none else by the Corporation itself. It is
left open to the Board of Directors to implement its decision with
effect from any date decided by the Board."
(emphasis added)
7. Thus, even at this stage, the decision dated 27.11.2009, seeking to
implement the revised pay scales w.e.f. 01.01.2006, was not formally
implemented. Subsequent to dismissal of LPA by this Court and SLP by the
Hon'ble Supreme Court, the respondent-Corporation, vide order dated
31.08.2015 (Annexure P-5), decided to grant the said benefits w.e.f.
01.09.2015.
8. Curiously, a perusal of the record, particularly Annexure R-1,
wherein disbursement of the pay of one S.B. Gupta is detailed, reflects that
notional benefits of revised pay scale were granted w.e.f. the date of his
promotion as Senior Accounts Officer i.e. 25.10.2007. These benefits have also
been granted to the petitioners in the same way. It appears that the petitioners
have repackaged a proposal (dated 27.11.2009) in form of an approval to
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unjustly claim benefits of the same by misusing their position as officers of the
finance and accounts department, in-charge of processing any changes in salary
structures of the employees of the respondent-Nigam.
9. Further still, the official records pertaining to grant of benefits of
revised pay scale to the Senior Accounts Officers were found to have been
'misplaced.' When a complaint was filed in this regard, the concerned officer
i.e. Rachna Garg, Senior Accounts Officer, vide memo dated 12.03.2021
(Annexure R-6), informed the Superintendent of Police that liability could not
be fastened upon single employee. Notably, Rachna Garg herself has availed
benefits of the revision of pay. A perusal of noting sheet (Annexure R-8) would
indicate that the Board has made the following observations:
"From the pre-page & above, it can be seen that the office of
FA/HQrs, UHBVNL, Panchkula has misplaced his original noting
titled as Revamping of Finance, Accounts & Audit wing. On the
other hand the office of Chief Accounts Officer, UHBVNL,
Panchkula has also misplaced his original file along with all
relevant documents/annexures wherein the approval has been
obtained to grant benefit of notional pay fixation prior to
01.09.2015 to all Accounts Personnels."
10. Be that as it may, this Court does not find it relevant to comment
on the veracity of criminal proceedings initiated in this regard. As far as the act
of the petitioners in granting themselves notional benefits w.e.f. 01.01.2006 is
concerned, it must be noted that they are specialized officers in the department
of finance and accounts. Thus, they cannot present themselves as innocent
while interpreting the resolutions passed by the Board in terms of the judgment
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rendered by this Court. By virtue of their position and specialized skills, it can
be reasonably expected of them to understand that the initial decision was
never implemented, thereby making their act and conduct fraudulent.
11. A two Judge Bench of the Hon'ble Supreme Court in Thomas
Daniel's case (supra) has unequivocally held that the right to recovery is
rooted in equity. Therefore, it is necessary that the excess amount was not
disbursed to the beneficiary on account of any fraud on his part or
misrepresentation made by him. Speaking through Justice S. Abdul Nazeer, the
following was opined:
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 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.
10. In Sahib Ram v. State of Haryana and Others, 1995 Supp (1)
SCC 18 this Court restrained recovery of payment which was
given under the upgraded pay scale on account of wrong
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construction of relevant order by the authority concerned, without
any misrepresentation on part of the employees. It was held thus :
"5. Admittedly the appellant does not possess the required
educational qualifications. Under the circumstances the
appellant would not be entitled to the relaxation. The
Principal erred in granting him the relaxation. Since the date
of relaxation, the appellant had been paid his salary on the
revised scale. However, it is not on account of any
misrepresentation made by the appellant that the benefit of
the higher pay scale was given to him but by wrong
construction made by the Principal for which the appellant
cannot be held to be at fault. Under the circumstances the
amount paid till date may not be recovered from the
appellant. The principle of equal pay for equal work would
not apply to the scales prescribed by the University Grants
Commission. The appeal is allowed partly without any order
as to costs."
11. In Col. B.J. Akkara (Retd.) v. Government of India and
Others, (2006) 11 SCC 709 this Court considered an identical
question as under:
"27. The last question to be considered is whether relief
should be granted against the recovery of the excess
payments made on account of the wrong
interpretation/understanding of the circular dated 7-61999.
This Court has consistently granted relief against recovery of
excess wrong payment of emoluments/allowances from an
employee, if the following conditions are fulfilled (vide Sahib
Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC
(L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2
SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC
121], Union of India v. M. Bhaskar [(1996) 4 SCC 416 :
1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt.
Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652]):
(a) The excess payment was not made on account of any
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misrepresentation or fraud on the part of the employee.
(b) 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.
28. Such relief, restraining back recovery of excess payment,
is granted by courts not because of any right in the
employees, but in equity, in exercise of judicial discretion to
relieve the employees from the hardship that will be caused if
recovery is implemented. A government servant, particularly
one in the lower rungs of service would spend whatever
emoluments he receives for the upkeep of his family. If he
receives an excess payment for a long period, he would spend
it, genuinely believing that he is entitled to it. As any
subsequent action to recover the excess payment will cause
undue hardship to him, relief is granted in that behalf. But
where the employee had knowledge that the payment
received was in excess of what was due or wrongly paid, or
where the error is detected or corrected within a short time
of wrong payment, courts will not grant relief against
recovery. The matter being in the realm of judicial discretion,
courts may on the facts and circumstances of any particular
case refuse to grant such relief against recovery.
29. On the same principle, pensioners can also seek a
direction that wrong payments should not be recovered, as
pensioners are in a more disadvantageous position when
compared to in-service employees. Any attempt to recover
excess wrong payment would cause undue hardship to them.
The petitioners are not guilty of any misrepresentation or
fraud in regard to the excess payment. NPA was added to
minimum pay, for purposes of stepping up, due to a wrong
understanding by the implementing departments. We are
therefore of the view that the respondents shall not recover
any excess payments made towards pension in pursuance of
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the circular dated 7-6-1999 till the issue of the clarificatory
circular dated 11-9-2001. Insofar as any excess payment
made after the circular dated 11-9-2001, obviously the Union
of India will be entitled to recover the excess as the validity
of the said circular has been upheld and as pensioners have
been put on notice in regard to the wrong calculations earlier
made."
12. In Syed Abdul Qadir and Others v. State of Bihar and Others,
(2009) 3 SCC 475 excess payment was sought to be recovered
which was made to the appellants-teachers on account of mistake
and wrong interpretation of prevailing Bihar Nationalised
Secondary School (Service Conditions) Rules, 1983. The
appellants therein contended that even if it were to be held that the
appellants were not entitled to the benefit of additional increment
on promotion, the excess amount should not be recovered from
them, it having been paid without any misrepresentation or fraud
on their part. The Court held that the appellants cannot be held
responsible in such a situation and recovery of the excess payment
should not be ordered, especially when the employee has
subsequently retired. The court observed that in general
parlance, recovery is prohibited by courts where there exists no
misrepresentation or fraud on the part of the employee and
when the excess payment has been made by applying a wrong
interpretation/ understanding of a Rule or Order. It was held
thus:
"59. Undoubtedly, the excess amount that has been paid to
the appellant teachers was not because of any
misrepresentation or fraud on their part and the appellants
also had no knowledge that the amount that was being paid
to them was more than what they were entitled to. It would
not be out of place to mention here that the Finance
Department had, in its counter-affidavit, admitted that it was
a bona fide mistake on their part. The excess payment made
was the result of wrong interpretation of the Rule that was
applicable to them, for which the appellants cannot be held
responsible. Rather, the whole confusion was because of
inaction, negligence and carelessness of the officials
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concerned of the Government of Bihar. Learned counsel
appearing on behalf of the appellant teachers submitted that
majority of the beneficiaries have either retired or are on the
verge of it. Keeping in view the peculiar facts and
circumstances of the case at hand and to avoid any hardship
to the appellant teachers, we are of the view that no recovery
of the amount that has been paid in excess to the appellant
teachers should be made."
12. Since the petitioners cannot claim lack of knowledge with regards
to application of revised pay scales and were in a position of authority to pass
requisite orders, bequeathing such benefits upon themselves, this Court is of
the considered opinion that the present case is indicative of fraud. At this
juncture, it would be profitable to refer to the legal maxims- nullus commodum
capere potest de injuria sua propria, which can be translated to - no man can
take advantage of his own wrong, and sublato fundamento cadit opus, which
translates to - when the foundation is removed, the structure falls. In that vein,
the petitioners cannot be allowed to be illegitimately benefited from their own
wrong merely because the charade was discovered later in time, as fraud
vitiates all. A two-Judge Bench of the Hon'ble Supreme Court in Ram
Chandra Singh Vs. Savitri Devi and others, (2003) 8 SCC 319, speaking
through Justice S.B.Sinha, wherein the following was opined:
"15. Commission of fraud on court and suppression of material
facts are the core issues involved in these matters. Fraud as is
well known vitiates every solemn act. Fraud and justice never
dwell together.
16. Fraud is a conduct either by letter or words, which induces the
other person or authority to take a definite determinative stand as
a response to the conduct of the former either by word or letter.
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17. It is also well settled that misrepresentation itself amounts to
fraud. Indeed, innocent misrepresentation may also give reason to
claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists
in leading a man into damage by wilfully or recklessly causing
him to believe and act on falsehood. It is a fraud in law if a party
makes representations which he knows to be false, and injury
ensues therefrom although the motive from which the
representations proceeded may not have been bad.
(emphasis added)
CONCLUSION
13. In view of the discussion above, present petition is dismissed. The
petitioners cannot be protected by this Court against the consequences of their
intentional wrongdoings.
14. The pending miscellaneous application(s), if any, shall stand
disposed of.
[ HARPREET SINGH BRAR ]
10.12.2025 JUDGE
vishnu
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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