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2009 DIGILAW 342 (HP)

BALDEV PARKASH v. STATE OF HIMACHAL PRADESH

2009-04-18

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, J.:-Brief facts necessary for adjudication of this writ petition are that the petitioner was appointed in Municipal Committee, Solan on 1.8.1960. He retired on 30.9.1993. He was paid pension with effect from 1.10.1993 on the basis of letter dated 6.3.1996. He was getting pension of Rs. 843/-, however, vide orders dated 7.8.2000 and 20.1.2001, his pension was reduced from Rs. 843/- to 652/-. He was not given benefit of seven years six months qualifying service towards pension. The case of the respondents is that it has decided to grant provisional pension to the petitioner and similarly situate persons on the basis of letter dated 14.9.1995. The H.P. Municipality Employees (Pension, Gratuity and General Provident Fund) Rules, 2000 were notified on 25.4.2000. There was no pension available to the municipal employees of the State before 1.4.1992. The qualifying service for the purpose of pensionary benefits to the municipal employees of the State was required to be taken into account from the date the employee started contributing towards the old Contributory Provident Fund Scheme, if any, so adopted by the Municipality concerned. The petitioner started depositing money towards the Contributory Provident Fund with effect from February, 1968. It is in these circumstances, his qualifying service of seven years six months was not counted with effect from 1.8.1960. 2. Mr. Lalit Sharma has strenuously argued that no notice was issued to the petitioner before reducing his pension on the basis of Annexures P-4 and P-5 dated 7.8.2000 and 20.1.2001. He then argued that the service of his client with effect from 1.8.1960 upto February, 1968 was required to be counted for the purpose of pension. He lastly contended that his client has retired on 30.9.1993 and in case recoveries are effected from his pension, it will cause immense hardship to him and his family. 3. The learned Senior Additional Advocate General has argued that the decision to grant provisional pension was taken on the basis of Annexure R-1 dated 14.9.1995 and thereafter, the Rules called “The H.P. Municipality Employees (Pension, Gratuity and General Provident Fund) Rules, 2000” were notified on 25.4.2000. According to him, the qualifying service of the petitioner towards pensionary benefits was to be counted from the date the petitioner has started depositing money in Contributory Provident Fund i.e. February, 1968. According to him, the qualifying service of the petitioner towards pensionary benefits was to be counted from the date the petitioner has started depositing money in Contributory Provident Fund i.e. February, 1968. He further argued that the petitioner was not required to be heard before the issuance of Annexures P-4 and P-5 respectively. 4. I have heard the parties and perused the record carefully. 5. It is not in dispute that the petitioner was appointed in Municipal Committee, Solan on 1.8.1960. He retired on 30.9.1993. He was paid pension of Rs. 843/- per month on the basis of letter dated 6.3.1996 with effect from 1.10.1993. The provisional pension granted to the petitioner was reduced from Rs. 843/- to Rs. 652/- on the basis of Annexures P-4 and P-5. The petitioner has not been heard before the issuance of Annexures P-4 and P-5. The petitioner has been visited with civil and evil consequences after his pension was reduced. He was required to be heard before the issuance of Annexures P-4 and P-5. Their Lordships of the Hon’ble Supreme Court in Rajesh Kumar and others Vs. Dy. CIT & others 2007 (2) Supreme Court Cases 181 have held that any action having civil or evil consequences should comply with the principles of natural justice. Their Lordships have held as under: “Effect of civil consequences arising out of determination of lis under a statute is stated in State of Orissa v. Dr. (Miss) Binapani Dei and Ors. [1967 (2) SCR 625]. It is an authority for the proposition when by reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. In such an event, although no express provision is laid down in this behalf compliance of principles of natural justice would be implicit. In case of denial of principles of natural justice in a statute, the same may also be held ultra vires Article 14 of the Constitution.” 6. It is true that the petitioner was appointed on temporary basis initially on 1.8.1960. However, his services were regularized thereafter. The temporary service was required to be taken into consideration for the purpose of payment of pension. The respondents have taken the decision to grant pension to the petitioner and similarly situate persons on the basis of letter dated 14.9.1995. It is true that the petitioner was appointed on temporary basis initially on 1.8.1960. However, his services were regularized thereafter. The temporary service was required to be taken into consideration for the purpose of payment of pension. The respondents have taken the decision to grant pension to the petitioner and similarly situate persons on the basis of letter dated 14.9.1995. The situation remained in limbo from 1995 till 25.4.2000 when the Rules were notified, as noticed above. 7. As per the Rules, the petitioner was required to deposit the Contributory Provident Fund from the very beginning i.e. 1.8.1960. The petitioner had started depositing Contributory Provident Fund with effect from February, 1968. It is not the case of the respondents that the petitioner had ever refused to pay towards the Contributory Provident Fund before 1968. In these circumstances, the entire length of service from 1.8.1960 onwards was to be counted as has been done vide letter dated 6.3.1996. 8. Mr. R.K. Sharma has vehemently argued that the petitioner has furnished the indemnity bond vide Annexure R-4 dated 7.3.1996 and has agreed to refund the excess amount if determined after the release of the pension. The petitioner has retired on 30.9.1993. He has been paid pension at the rate of Rs. 3650/- from 1.10.1993 till January, 2001. It would cause immense hardship to the petitioner in case he is directed to pay the excess amount which has been paid to him from 1.10.1993 to January, 2001. He has not misrepresented the authorities at the time when the provisional pension was released at the rate of Rs. 3650/- on 6.3.1996. Their Lordships of the Hon’ble Supreme Court have re iterated the circumstances in which the recoveries can be effected from an employee in latest pronouncement in Syed Abdul Qadir and others Vs. State of Bihar and others, (2009) 3 Supreme Court cases 475. Their Lordships have held as under: “This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employees, and (b) 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. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.” 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 if 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 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.” 9. In view the law laid down by their Lordships of the Hon’ble Supreme Court, no recoveries can be effected from the pensionary benefits paid to the petitioner with effect from 1.10.1993 to January, 2001 at this belated stage. The respondents were bound to take into consideration the entire length of service of the petitioner i.e. 33 years 2 months for the purpose of release of pensionary benefits. 10. Accordingly, the writ petition is allowed. The Annexures P-4 and P-5 dated 7.8.2000 and 20.1.2001 are quashed and set aside. The respondents were bound to take into consideration the entire length of service of the petitioner i.e. 33 years 2 months for the purpose of release of pensionary benefits. 10. Accordingly, the writ petition is allowed. The Annexures P-4 and P-5 dated 7.8.2000 and 20.1.2001 are quashed and set aside. The respondents are restrained from effecting any recovery from the petitioner for the excess pension paid to him with effect from 1.10.1993 to January, 2001. No costs.