Principle of Locus Poenitentiate and Recovery of Received Benefits

Principle of Locus Poenitentiate and Recovery of Received Benefits Case Laws Constitutional Law Employment & Incentives Knowledge - Constitutional Law Lahore High Court Litigation & Arbitration Locus Poenitentiae Maintainability Solutions - Constitutional Law Mr. Justice Shahid Mubeen in his judgment has decided the issue regarding principle of locus poenitentiate and recovery of received benefits in Writ Petition No. 6129 of 2009.

1. Through the instant writ petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 the petitioner has called into question the legality and validity of impugned office order dated 13.05.2009 issued by Regional HR Chief, National Bank of Pakistan, D.G. Khan and letter dated 19.05.2009 issued by Manager, National Bank of Pakistan, Qasba Gujrat whereby the respondents withdrew the benefits of advance increments which were awarded to the petitioner on having higher qualification.

2. Briefly the facts of the case are that the petitioner was appointed as Cashier Grade-I in National Bank of Pakistan on 20.05.1995. The petitioner was allowed five increments on the basis of higher qualification/B.A. In consequence of this order, the petitioner continued to draw the pay fixed in terms of the said order. The respondent No.3 vide office order dated 13.05.2009 withdrew the said benefit of advance increments given to the petitioner since 1995. Similarly, the respondent No.5 has also issued letter dated 19.05.2009 on the same subject. Hence, this writ petition.

3. It is contended by the learned counsel for the petitioner that the respondents are not entitled to recover the paid amount of increments for a period of 14-years under the principle of locus poenitentiate.

4. On the other hand, learned counsel for the respondents submits that the writ petition is not competent as their rules are non-statutory. He further states that the petitioner was not entitled to have incentives increments as he has not improved his qualification during service as mentioned in circular No.23/93 dated 31.03.1993 issued by respondents’ bank. He further submits that rules framed in the year 1980 are non-statutory which impliedly repealed Rules, 1973.

5. Heard. Record perused.

6. The contention of the learned counsel for the respondents that the writ petition is not competent as Rules, 1980 of respondents’ bank are non-statutory, has no force. The rules of National Bank of Pakistan Staff Service Rules 1973 were framed with prior approval of the Federal Government. The same could only be repealed by subsequent rules with prior approval of Federal Government. 1980 Rules were undoubtedly framed but merely framing of those Rules would not repeal the earlier statutory Rules, therefore, this objection is overruled. As the rules of respondents’ bank of 1973 are statutory, therefore, writ petition is competent. Reference may be made to a case reported as “National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and 2 others” (1993 SCMR 105).

7. The petitioner was allowed to receive five increments on the basis of his qualification/B.A. by the respondent’s bank. The petitioner has received the said increments bonafide and without committing any fraud upon the respondents. As the disputed amount has been received by the petitioner, therefore, the respondents are not entitled to recover the amount drawn by the petitioner under the principle of locus poenitentiate. Reference may be made to a case reported as “The Engineer in Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin” (PLD 1992 Supreme Court 207). Relevant portion of the judgment is reproduced herein below:

“It is therefore, clear that the Tribunal has also not disputed the contention of the appellant that respondent was not entitled to be fixed in Grade-11 of National Pay Scale. The principle of locus poenitentiae was invoked by the learned Tribunal in aid of the respondent. Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present case. Additionally, under section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order. The order under which the payment was made to the respondent had no sanction of law. Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade-11, they withdrew the said letter. 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) during this period but the Engineer-in-Chief had directed the recovery of Rs.1,860.00 only (Rupees one thousand, eight hundred, sixty and paisa nil only). We consider that as far as the recovery of 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.”

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