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2001 DIGILAW 77 (PAT)

Jitendra Kumar v. Bihar State Electricity Board

2001-01-31

RADHA MOHAN PRASAD

body2001
Judgment 1. In this writ petition, petitioner is aggrieved by the order dated 6.8.1999, contained in Annexure-3, whereby and whereunder the amount drawn against arrear increment by the petitioner has been directed to be adjusted by making recovery @ Rs. 2,000/- per month from next salary bill against the pending recoverable amount for his not passing Hindi Noting and Drafting examination. After the said order, petitioner superannuated from service on 31.5.2000. 2. The question as to whether such recovery is permissible came up for consideration by a Division Bench of this Court in the case of Bijay Bahadur & another V/s. Bihar State Electricity Board & ors. (C.W.J.C. Nos. 1007 and 4576 of 1997 disposed of on 19th May, 1998) and this Court besides relying upon the principle decided by the Apex Court in the case of Sahib Ram V/s. State of Haryana, reported in 1995 Supp.(1) S.C.C. 18 also held that as both the writ petitioners passed the aforesaid examination in the year 1993 itself, "they were entitled to all the increments as if such stoppage had never taken place. The Respondent-Board went up in Appeal to the Apex Court in Civil Appeal No. 6914 of 1999 against the said Division Bench judgment of this Court. The Supreme Court while disposing of the said appeal recorded concurrence with the observation in its earlier decision in Sahib Rams case and came to a conclusion that since payment has been made without any representation or misrepresentation, appellant-Board could not possible be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The Apex Court further held that the act or acts on the part of the appellant-Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice, and that concept of fairness has been given a go-by. It was, thus, held that the actions initiated for recover/cannot be sustained under any circumstances. The Apex Court further held that the act or acts on the part of the appellant-Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice, and that concept of fairness has been given a go-by. It was, thus, held that the actions initiated for recover/cannot be sustained under any circumstances. However, the Supreme Court, further, after noticing the factual aspect that the Respondents in Appeal (writ petitioner) were appointed in the year 1966 and were allowed to have due increments in terms of the service conditions and salary structure and were also granted promotions in due course of service and have been asked after expiry of 15 years to replenish the Board exchequer from out of the employees salary which were paid to them since the year 1979, observed that it is on this score that the High Court observed that as both the petitioners have passed the examination in the year 1993, their entitlement for relief cannot be doubted in any way. 3. The said order was, however, restricted to the facts of the writ petitioners of the said case. The Apex Court clarified that Rule 8 would operate on its own and the Board will be at liberty to take appropriate steps in accordance with law except, however, in the case or cases which has/have attained finality. The Apex Court in the operative part recorded concurrence, as noted above, in regard to the decision of the matter in issue and in particular reference to the factual aspect except declining to accept the observations of the High Court pertaining to Rule 8 of the Rules, made in paragraph 13 that the Board would not be allowed to pass an order for recovery of the said amount as the said amount has already become due to them. About the said observation, the Apex Court said that it sounds contrary to Rule 8 of the Regulations which records that no arrears of the stopped increments shall be payable even though the person would pass the examination later on, and accordingly, recorded disapproval insofar as the said observation of the High Court is concerned. With the above, the Apex Court dismissed the appeal filed by the Board. 4. Mr. With the above, the Apex Court dismissed the appeal filed by the Board. 4. Mr. Shivendra Kishore, learned counsel for the Board has submitted that, in fact, the present order is fully justified in view of the decision of the Apex Court in Civil Appeal No. 6914 of 1999 in which the Apex Court has disapproved the observation of the Division Bench of this Court that the Board would not be allowed to pass order for recovery of the amount as the said amount has already become due to them, and that the said observation sounds contrary to Rule 8 of the Regulations which records that no arrears of the stopped increments shall be payable even though the person would pass the examination later on. 5. I am unable to accept the said submission of the learned counsel for the Board. The Apex Court concurring with the law laid down in Sahib Rams case (supra) concluded that since payment has been made without any representation or misrepresentation, the appellant-Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time, and that the act or acts on the part of the appellant- Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice. The Apex Court also held that such action initiated for recovery cannot be sustained under any circumstances. However, in regard to Rule 8 the Apex Court made it clear that it will operate on its own and the Board will be at liberty to take appropriate steps in accordance with law except in the case or cases which has/have attained finality, by which the Apex Court obviously meant on the basis of the principle decided/observation made in Sahib Rams case. 6. There is distinction between two types of cases. One where an employee is claiming entitlement for grant of benefit of increment from the due date on passing of Hindi Noting and Drafting Examination on later date and the other where payments have already been made, but later recovery is sought to be made. 6. There is distinction between two types of cases. One where an employee is claiming entitlement for grant of benefit of increment from the due date on passing of Hindi Noting and Drafting Examination on later date and the other where payments have already been made, but later recovery is sought to be made. In the later case the principle decided by the Apex Court in the case of Sahib Ram (supra) shall apply and it is only when the Board on holding enquiry would come to a conclusion that it was on account of representation or misrepresentation that the petitioner drew or paid the increments unauthorisedly, such recovery will be permissible, otherwise, in my opinion, not. In the first type of cases, in view of the principle decided by the Apex Court in Civil Appeal No. 6914 of 1999, employee cannot claim entitlement for payment of salary from the due date on passing of Hindi Noting and Drafting Examination on a later date, as Rule 8 prohibits any such entitlement and the validity of the same has been upheld by the Apex Court. 7. However, in the instant case, the facts are identical to the case of Bijay Bahadur & another and following the principle decided in Civil Appeal No. 6914 of 1999, this Court does not find any justification to uphold the impugned order for recovery of the alleged excess payment of increment on account of non-passing of the petitioners Hindi Noting & Drafting Examination. 8. In the result, writ petition is allowed and the impugned order, contained in Annexure-1 is quashed. Respondents are directed to refund the amount, if already recovered in pursuance to the impugned order (Annexure-3), within two weeks of the receipt/production of a copy of this order.