Uttarakhand High Court
(By Shailendra Nauriyal vs Employees State Insurance ... on 20 December, 2021
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE NARAYAN SINGH DHANIK
Special Appeal No. 371 of 2021
(Under Chapter VIII Rule 5 of High Court Rules)
Girish Chandra,
S/o Late Maya Ram Bahuguna,
R/o Village & P.O. Kaliasaurh (Dhari Devi),
District- Pauri Garhwal
.....Petitioner/Appellant
(By Shailendra Nauriyal, the learned proxy counsel for Mr. Vinod
Nautiyal, the learned counsel for the petitioner.)
VERSUS
1. Employees State Insurance Corporation,
Panchdeep Bhawan C 16 Marg,
New Delhi, through Deputy Director
2. Regional Manager, Regional Officer, Employees
State Insurance Corporation, Prem Nagar,
Wing-4, Shivpuri, Prem Nagar,
Dehradun
......Respondents
(By Mr. C.K. Sharma, the learned counsel for the respondents.)
Judgment Reserved on: 16.12.2021
Judgment Delivered on: 20.12.2021
JUDGMENT: (per Hon'ble Shri Justice Narayan Singh Dhanik)
Being serving as Machine Operator in Marsal
Cycle Pvt. Ltd. Meerut, the writ-petitioner was an
Insured Person under the E.S.I. Act. On
17.03.1973, he suffered Employment Injury and,
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accordingly, he was sanctioned pension under the
Permanent Disablement Benefit. The pension so
granted was revised from time to time and in
August 2013, it was erroneously revised @ Rs.
202.44 per day, while it had to be revised @ Rs.
31.76 per day. When this wrong
determination/revision of pension came into light,
the Employees' State Insurance Corporation, vide
its order dated 26.07.2017, directed for recovery
of the excess payment made to the writ-petitioner.
The writ-petitioner challenged the said order by
filing Writ Petition No. 3543 of 2018 (M/S). A
learned Single Judge of this Court, vide judgment
dated 14.01.2021, considering that there was no
pleading or establishment of fact of being
misleading or fraud committed by the petitioner
and also considering the proposition of law laid
down by the Hon'ble Apex Court in Ram Khelwan
Pathak Vs. State of U.P. and others, reported in
1998 (1) ACJ 596, held that the recovery of
excess payment made to the writ-petitioner is
bad in the eyes of law and accordingly allowed the
Writ Petition directing the respondents to refrain
from recovering the excess amount.
2. Petitioner again filed Writ Petition No.
1957 of 2021 (M/S) seeking a writ of mandamus
directing the respondents to pay the pension @
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Rs. 202.44 per day. The said Writ Petition has
been dismissed by the learned Single Judge on
the ground that the petitioner did not pray for the
same in the earlier writ petition in which the
order dated 26.07.2017 was put to challenge and
thus the petitioner already waived off part of his
claim. Aggrieved thereby, the present appeal.
3. It is evident, from the order under
appeal itself, that it is not the case of the writ-
petitioner/appellant that he was entitled to
receive pension @ Rs. 202.44 per day. The
petitioner has challenged the said action of the
respondents on the ground that once the
respondents have fixed the pension @ Rs. 202.44
per day and the pension at the said rate has been
paid for about two years, the department has no
authority to reduce the pension on the ground of
erroneous fixation.
4. Since it is not even the case of writ-
petitioner that he was entitled to receive pension
@ Rs. 202.44 per day and since excess amount of
pension has been granted without any authority
of law, we are of the considered opinion that the
respondents have rightly reduced the pension of
the writ-petitioner. There cannot be any contrary
opinion in this regard. It is a settled law that the
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correct fixation of pay, as applicable to an
employee, is to be effected and pension
permissible is to be paid in accordance with
relevant rules, otherwise it would amount to
unjust enrichment. Hence, learned Single Judge
has rightly dismissed the writ petition.
Interference in an entra-Court appeal would be
justified only if the order under appeal suffers
from a patent illegality. The order under appeal
does not suffer from any such infirmity.
5. Consequently, the appeal fails and is,
accordingly, dismissed.
_______
RAGHVENDRA SINGH CHAUHAN, C.J.
_____________
N.S. DHANIK, J.
RV
