JUDGMENT Narinder Thakur, Vice-Chairman.—The applicant is aggrieved by the issuance of Annexure-A-1 dated 26.2.2005 whereby the proficiency salary/ increments/ Senior Selection Scale granted to the applicant, has been withheld and further more, stoppage of increment with cumulative effect and thereafter recovery is going to be effected by the respondents after the issuance of impugned Annexure-A-1. He is thus praying for grant of following main relief(s):— "(i) That impugned Annexure-A-1 dated 26.2.2005 may be quashed and set aside and thereby directing the respondents to maintain the status-quo prior to the issuance of this impugned order and consequently, reliefs ensuing may be passed in favour of the applicant. (ii) That the respondents further may be directed to award the special certificate of teaching between the period 1964 to 1969 and consequently the applicant may be given salary of that period equivalent to the salary of persons or teachers, who were possessing the JBT Course Certificate, because it was the practice in the Education Department to engage the teachers without demanding from them JBT course certificate, since at that time, there was dearth of teachers in the State of H.P. and all increments may be given to the applicant of the period 1964 to 1969 and all reliefs which accrues in view of that services. (iii) The respondents may be directed to produce the entire record before this Honble Court. (iv) Any other orders which this Honble Tribunal may deem fit, just and proper in the facts and circumstances of the instant case, may be passed in favour of the applicant, in the interest of law and justice. (v) The cost of the original application may please be awarded in favour of the applicant." 2. The applicant initially joined as JBT with the respondent department on 22.11.1964 and now as per the affidavit filed by the applicant he has been retired from service, The applicant remained as untrained teacher with the respondent department since 1964 to 1968 and he had completed his JBT training course in the year, 1968 at JBT Centre Sunni, District Mahasu. It is alleged by the applicant that from 1964 to 1969 he remained in the capacity of un-trained teacher. It is alleged by the applicant that from 1964 to 1969 he remained in the capacity of un-trained teacher. Instead of appreciating that period from 1964 to 1969 of the applicant as untrained teacher by giving him special increments /emoluments which was being drawn by the trained teachers, the respondent department imposing harsh penalty upon the applicant as per Annexure-A-1 dated 26.2.2005. Now the respondent department is going to make recovery from the applicant i.e. proficiency salary/ increment/ Senior Selection Scale w.e.f. 1, 1.1986 without assigning any reason and affording an opportunity of being heard to the applicant. 3. To the above averments of the applicant the respondent department has filed its reply. In the reply it has been averred that the present application is not maintainable because order dated 26.2.2005 Annexure-A-1 addressed to respondent No. 3 i.e. Deputy Director of Primary Education, Shimla has rightly been issued by the respondents wherein it has been stated that the excess payment be calculated and the entry of the same may be made in the service book and the pension benefit/gratuity may not be released till the final decision of the Original Application filed by the teachers. In the present case also the gratuity cannot be released in favour of the applicant who had retired on 30.6.2006, because the excess payment has been made to the applicant by counting his untrained period of JBT teachers which as per rule cannot be counted and this question stands already adjudicated by this Tribunal in OA No. 1167/93 titled as Hira Lal v. State of H.P. and others, decided on 28.4,1997. In the said judgment this Tribunal has held in para 16 as under:— "A J.B.T. teacher is entitled to senior scale and selection scale after 8 or 18 years of service as JBT teacher, meaning thereby that 8 years or 18 years service has to be reckoned on such vis-a-vis the post of JBT teacher none else. In this view of the matter the instruction issued by the respondent State that for the purpose of proficiency step up increments, the period of 8 or 18 years of service has to be reckoned from the date of employee, qualifying the training course of JBT to be legal and valid." 4. In this view of the decision of this Tribunal the original application for same relief cannot be filed. In this view of the decision of this Tribunal the original application for same relief cannot be filed. Hence the applicant is stopped to file the present original application. Therefore, in view of these facts the untrained period of JBT service cannot be counted for the purpose of allowing proficiency Step-up and seniority/Selection grade. Hence Annexure-A-1 as annexed by the applicant with the present original application has rightly been issued. 5. Rejoinder has been filed applicant which is just repetition to the Original Application. 6. I have heard the learned Counsel for the applicant and the learned Additional Advocate General and have gone through their pleadings and record very carefully. 7. The fact remains that the impugned order Annexure-/Al has been issued without affording an opportunity of hearing to the applicant thus the principle of natural justice have been violated. The parties with respect to this issue are not at variance, nor could it be found out from the pleadings that the applicant was afforded any opportunity of hearing by the respondent department before having resorted to impugned Annexure-A/1. 8. Admittedly the applicant has been receiving the benefits, now sought to be withdrawn, since 1.1.1986 as is evident vide Annexure-A/ 1 itself. The alleged clarification is of much later date. The parties are not at variance to the position that the benefits were given by the respondent department itself and there was no misrepresentation of facts on the part of the applicant. The benefits were given in pursuance to certain instructions issued by the department itself. Now, the department is seeking to withdraw the said benefits, more so after the applicant has retired, which cannot be permitted to be done in view of the well settled legal position in this regard. 9. From the pleadings and the arguments advanced by the learned Counsel for the respective parties, it remains to be seen whether respondent department has rightly resorted to the impugned action against the applicant at the fag end of his service without affording any opportunity of being heard. 10. So far as the question of none observation of principle of natural justice is concerned, it leaves no doubt to my mind, that same has been violated. Salary, pension, gratuity etc. are the property of an individual under Article 300-A of the Constitution of India. 10. So far as the question of none observation of principle of natural justice is concerned, it leaves no doubt to my mind, that same has been violated. Salary, pension, gratuity etc. are the property of an individual under Article 300-A of the Constitution of India. The said article provides that no person shall be deprived of his property save by authority of law. Therefore, it was not essential but also mandatory on the part of respondents to issue show-cause notice to the applicant before having resorted to their impugned action. The Honble Apex Court in AIR 1994 SC 2480, Bhagwan Shukla v. Union of India and others, has held that:— "3. We have heard learned Counsel for the parties. That the petitioners basic pay had been fixed since 1970 at Rs. 190/- p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs. 181/- p.m. from Rs. 190/-. P.m. in 1991 retrospectively w.e.f. 18.12.1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show-cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There, has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25.7.1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17.9.1993 as well as the order (memorandum) impugned before the Tribunal dated 25.7.1991 reducing the basic pay of the appellant from Rs. 190/- to Rs. 181/- w.e.f. 18.12.1970." 11. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17.9.1993 as well as the order (memorandum) impugned before the Tribunal dated 25.7.1991 reducing the basic pay of the appellant from Rs. 190/- to Rs. 181/- w.e.f. 18.12.1970." 11. In fact similar observation have been made by the Honble High Court of H.P. titled as Mahavir Singh v. Union of India, 1997 (2) Shimla Law Cases page 385. 12: Similarly the Honble Apex Court has restrained the department from effecting the recovery in the case reported in 1995 (2) SCT 421 titled as State of Orissa v. Adwait Charan Mohanty, 1994 (2) SCC 521 titled as Shyam Babu v. Union of India and 1995 Suppl 1 SCC 18 titled as Sahib Ram v. State of Haryana.. 13. Admittedly, there was no misrepresentation or fraud on the part of the applicant in getting the excess payment. It will not only be unfair but also unjust if what has been paid to the applicant about two decades ago is taken back from him at the time of his retirement. The impugned order visits upon the applicant civil consequences and will leave to undue financial hardship and as such cannot be sustained in the eyes of law. 14. In Ashish Taru Gosh v. State of West Bengal 2005 (5) SLR 390, Calcutta High Court while dealing with the similar question held that in case where the employee has been getting higher scale and had been enjoying the benefits thereof, those have created vested right in such employee and, therefore, before curtailing their vested right, the petitioners should have been given the show-cause notice and in the absences of such notice act of reducing the pay scale is render illegal and as such order is liable to be set aside. 15. The learned Counsel for the applicant has cited case law Rameshwar Lal Panzvar v. State of Rajsthan reported in 2005 (4) SLR 49 para 32 and Inder jit Kaur Chahal v. State of Punjab and others, 2005 (4) SLR 247 Para’s 5 and 24 and Been Dayal Sharma v. State of Haryana and Punjab, 2005 (5) SLR 506 Para’s 5, 6 and 24. 16. 16. This view was subsequently followed by the Division of this Court in case of Virender Chawala v. Chandigarh Administration reported in 1984 (1) P&H 452. I am also fortified in my view by the observation of the Apex Court in case of Sahib Ram (supra). In the aforesaid case the Honble Supreme Court observed as under:— "Admittedly, the appellant does not posses the required education qualifications. Under these circumstances, the appellant would to be entitled to relaxation. The principle erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of higher pay scale was given to him but by wrong construction made by the principal for whom the appellant cannot be held to be at fault. Under these circumstances, the amount paid till date may not be recovered from the appellant. The principle for equal pay for equal work would not apply to the scales prescribed by the University Grant Commission. The appeal is allowed partly without any order as to costs. In view of the settled law, we have no hesitation in holding that the entire action of the respondents is arbitrary, being violative of rules of natural justice, and therefore, contrary to Article 14 of the Constitution of India. The petitioner had joined the respondent department on 28.10.1971. We find it a little difficult to accept that wrong fixation of the pay could not be recovered for a period of almost 40 years. We are also satisfied that the petitioner cannot be held responsible for having made any misrepresentation to the respondents which resulted in wrong fixation of his pay. Now the petitioner has retired it would be wholly injustice to permit the respondent to recover the amount allegedly over paid to the petitioner. In our opinion the matter is securely covered by the observation made by the Supreme Court in case of Sahib Ram supra." 17. A similar view has been taken by this Tribunal in Brij Bhushan Aggarwal v. State of H.P. and others, OA 2982/2002, decided on 30.3.2005 and Mohinder Singh v. State of H.P. reported in 2006 (1) LHLJ 349. 18. A similar view has been taken by this Tribunal in Brij Bhushan Aggarwal v. State of H.P. and others, OA 2982/2002, decided on 30.3.2005 and Mohinder Singh v. State of H.P. reported in 2006 (1) LHLJ 349. 18. The learned Additional Advocate General during the course of arguments has referred to decision of this Tribunal in OA No. 1167/93 titled as Hira Lal v. State of H.P.; the same is not applicable in the instant case. In the case of Hira Lal the respondent department has not paid any benefit to the said person. So he was claiming the benefit which this Tribunal denied as not found within the purview of the rules. In the present case, admittedly the benefits have been given by the respondent department on its own and without any mis-representation or fraud on the part of the applicants. Thus, in view of the case law discussed above, once the benefit has been given to an employee and there is no element of mis-representation or fraud on his part, the same cannot be recovered. As such, the decision of Hira Lal is totally in different context and cannot be made a basis for effecting the recovery. In the above factual backdrop and the well settled legal position, I am of the considered view that the present Original Application deserves to be allowed and the same is allowed with direction that the illegal action of the respondents whereby they have re-fixed the pay of the applicant w.e.f. 1.1.1986 is quashed along with the impugned order contained in Annexure-A/1 qua the applicant and as a result, the respondents are directed to release all the pensionary benefits of the applicant who has since been retired and repay the recovered amount (if recovered) in respect of the applicant. So far as recoveries are concerned, respondent department is restrained from making any recovery from the applicant of any amount paid to him. The respondents will also not be justified now in re-fixing the salary of the applicant who has retired, after issuing him show-cause notice as the applicant has since retired from the service. So far as the payment of interest on account of pensionary dues is concerned we allow the same on the analogy of Government charges from an individual in case of refund of pension as per GI department of Pen. So far as the payment of interest on account of pensionary dues is concerned we allow the same on the analogy of Government charges from an individual in case of refund of pension as per GI department of Pen. And PW OM No. F 7/1/1993-P & PW (F) dated 25.8.1994 and 31.8.1995 published in Swamy Pension Compilation 14th Ed. 1998 at 40-41 wherein it is laid down that it has been decided that wherever the employees are required to refund the pensionary benefit received by them for service already rendered by them under the Central Government and State Government or autonomous bodies in order to avail of benefit of counting of past service for pension purposes in terms of the provisions of Rules 17 to 20 of CCS (Pension) Rules, 1972 and the department of Pension and pensioners welfare OM No. 28/10/84-PU dated 29.8.1984 as amended from time to time, the rate of interest will be rate applicable on GPF accumulation from time to time, from the period from the date of receipt of pensionary benefit to the date of their refund to the Government/autonomous body. The interest will be calculated in the same manner as is done in respect of GPF balances. The above directions will be complied with by the respondents within a period of two months from this order. With these observations the Original Application stands finally disposed of. O.A, Finally disposed of.