' Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan a prayer is made for the declaration of the acts of the respondents alleging the wrong fixation of pay scales/anomalies and thus excess payments to the employees of Faisalabad Region of respondent No,1, beginning from 1-6-1991 as without lawful authority and thus of no legal effect.
2. Brief facts of the case are that respondent No,1 is a statutory Corporation formed and established under the Punjab Small Industries Corporation Act, 1973 (Punjab Act No,XV of 1973) and petitioner is duly formed/registered Union of workers employed in the Faisalabad Region/Division of the respondent No,1 and is also certified as the Collective Bargaining Agent on behalf of all the workers/employees, engaged by respondent No,1 in the aforesaid Region/Division.
3. The Government of Punjab Finance Division issued a notification by which the pay scales were revised on 27-7-1987. Respondent-Corporation adopted the revised pay scales of the Government of Punjab vide Notification dated 26-8-1987. Through this notification respondent No,1 adapted the revised pay scales and fringe benefits as the Punjab Government has laid down in its Scheme dated 27-7-1987 and accorded to its employees the same pay scales as those of the Government employees. Government of Punjab, Finance Department, vide Notification dated 1-8-1991 once again revised the pay scales and fringe benefits of its employees in BPS-1 to BPS-16. Respondent No,1 again adopted the revised pay scales vide Notification dated 1-10-1991 and pays were fixed on the above said revised pay scales of the employees and advance increments were also granted.
Some anomalies were brought into the notice of Government of Punjab due to the fixation of the pay scales in pursuance of the above said notification. Notification was issued on 22-7-1987 in order to remove the anomalies and Corporation adopted the same as well and the revised pay scales were again fixed. However, in April, 1999, while preparing salary bills of the employees respondent No,4 due to some Audit Report prepared by respondent No,3 and his advise ordered to deduct various amounts out of their respective salaries said to have been paid in excess of their entitlement due to implementation of revised pay scales/anomalies since 1-6-1991. The petitioners through this writ petition have voiced grievance against this act of the respondents.
4. Learned counsel for the petitioner contends that .The payments made to the employees cannot be taken back and it is within the powers of the respondent No,1 to issue revise the pay slips if fixation was not in accordance with the policy adopted by respondent No,1 issued 'by the Government of the Punjab but the deduction of various amount out their respective salaries said to have, been paid in excess of their respective entitlement cannot be made as the members of the petitioner CBA Union have received the salaries according to the fixation of their pay scales and to this extent the principle of locus poenitentiae is applicable and he relied upon PLD 1992 SC 207 Jalal-ud-Din's case and also relied upon PLD 1993 SC 200.
5. Learned counsel appearing on behalf of respondents has opposed this petition on the ground that the over payments made to the employees due to the wrong fixation of their pays can be deducted and recovered by the respondent No, 1 . It is further contended that the audit was conducted in the Department twice first on 16-10-1997 and 2nd on 15-5-1999 wherein it revealed that an amount of Rs,2,12,585 had been paid in excess by wrong fixation of the salaries to the employees, out of which Rs,50,170 have already been deducted. According to him, nobody has personally agitated the matter except CBA Union which has no authority to agitate the same. He also relied upon the same case-law relied upon by the learned counsel for the petitioner.
6. I have heard the learned counsel for, the parties and also perused the documents attached with this petition. Both the learned counsel for the parties have relied upon PLD 1993. SC 200 in which case Board of Technical Education after the upgradation/promotion of the respondent when sent the case to the Controlling Authority, the Governor of the Province or his nominee for approval under section 15 of the Board of Technical Education Ordinance, 1972, the Controlling Authority refused to accord the approval and the Notification dated 14-9-1985 issued by the Government in this behalf regarding promotion of the respondent. From Grade-18 to Grade-19 was declared null and void and consequently direction was issued for immediate refund of the excess amount received by him as pay and allowances on the basis of promotion. The Peshawar High Court accepted the writ petition filed by respondent No,1 while declaring that the petitioner was already holding the post of the Secretary of the Board and he was rightly promoted in Grade-19. Feeling aggrieved by the said judgment the Controlling Authority filed a Civil Appeal No,261-P of 1990. This petition was accepted by the august Supreme. Court to the extent that the question whether the post of the Secretary will be in Basic Pay Scale in 19 or in Grade-18 it was a matter of policy but direction through the notification impugned before the High Court for the refund of the excess amount received by him as pay and allowances on the basis of promotion order was declared as null and void being not enforceable relying upon PLD 1992 SC 207. The second case relied upon by both the parties is the same citation i,e, PLD 1992 SC 207. The facts of this case are applicable to the facts and circumstances of the case in hand. In this case also Jalal-ud-Din respondent was appointed as Draftsman. On the implementation of the National Pay Scale respondent was placed in National Pay Scale No,5. As per Rules. He was promoted to Draftsman Class B on 15-5-1976.
Memorandum was issued by the Ministry of Finance of the pay scale whereby BPS-11 was given to the Draftsman, Scale of respondent Jalalud-Din was thus escalated hence it was subsequently found that he was not entitled to Basic Pay Scale 11 according to the memorandum issued by the Finance Department as he was not holding the prescribed qualification. Hence letter dated 12-10- 1977 was issued by which the basic qualification of Draftsman B-Class was made clear. By letter dated 27-2-1989 MAG was directed to recover the over payment of the last 12 months from the respondent Jalal-ud-Din as excess payment has been made to them by wrong fixation of the pay.
Appeal was filed by Jalal-ud-Din before the Tribunal which was accepted on the ground of principle of locus poenitentiae as the order once passed could not be taken back by the Authorities. The Supreme Court of Pakistan accepted the appeal and held as under: "The principle of locus poenitentiae would not apply in this case. However, as the respondent had received the amount on the bona fide belief, the appellant is not entitled to recover the amount drawn by the respondent during the period when the latter remained in the field. Learned counsel for the appellants had submitted that the appellants had drawn Rs,12,890.86 (Rupees twelve thousand, eight hundred, ninety and paisa eighty-six only). We consider that as far as the recovery of the amount in question is concerned, the principle of locus poenitentiae would be applicable and the appellants are not entitled to recover the amount. The appellants have themselves taken a liberal view and the recovery of only 12 months is being made."
So, the case of Chief Engineer is applicable to the facts and circumstances of this case. The orders passed for the refixation of the pays of the employees of the petitioner were with lawful authority and of legal effect and cannot be declared as illegal as is prayed for. However, the order to the extent of the refund of the excess amount already received by respondent No,1 due to wrong fixation is hit by principle of locus poenitentiae and amount is not recoverable from the members of the petitioner. This writ petition is decided accordingly that the order could be passed for the refixation of the pays/salaries, fringe benefits according to the revised pay scales wrongly fixed earlier but amount of Rs,2,13,585 which has been paid in excess to the employees due to the wrong fixation of the pay cannot be recovered by respondent No,1.
' With this observation, this petition is disposed of.