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2003 DIGILAW 1123 (PAT)

Bihar State Electricity Board v. Ajay Kumar And

2003-11-03

NAGENDRA RAI, R.S.GARG

body2003
Judgment Nagendra Rai, J. 1. This appeal has been filed against the order dated 30-8-1996 passed by the learned single Judge in C.W.J.C. No. 8816 of 1996 by which he has quashed two orders contained in Memo Nos. 2097 and 2098 dated 24-8-1995, annexed as Annexures 12 and 13 to the writ application, whereby direction has been issued for revision of pension as well as for recovery of excess salary that was paid to the writ petitioner respondent earlier on account of annual increments. 2. The writ petitioner-respondent was in the Government service and on 15-6-1963 he was appointed as Accounts Assistant in the Electricity Board. He was given annual increments and promotion and he superannuated on 31-1-1994. Before his retirement papers were sent by the concerned office to the headquarter of the appellant Board for grant of sanction of his retiral benefits by letter dated 21-1-1994. At that time verification was made as to whether the writ petitioner passed Hindi Noting and Drafting Examination which was condition precedent and which was mandatory for grant of promotion etc. An enquiry was made by the concerned Executive Engineer, who asked the writ petitioner-respondent to produce relevant documents in support of the fact that he passed Hindi Noting and Drafting Examination. The writ petitioner-respondent sent a reply to the Executive Engineer wherein he stated that he passed the aforesaid examination while he was in Government service in between 1956 and May, 1963. The Executive Engineer again asked for the documents in support of the said fact but no such document was produced by the writ petitioner-respondent and the Executive Engineer informed the said fact to the Board. Thereafter, the Executive Engineer on 5-12-1994 refixed the salary of the writ petitioner from 16-7-1979 when the Board had adopted the regulations of the State Government putting a condition for passing Hindi Noting and Drafting Examination for the purpose of increment, promotion etc. 3. While this enquiry was going on, pension of the writ petitioner was sanctioned but gratuity was withheld. After re-fixation of his pay, steps were taken to recover the excess money amounting to Rs. 95,567.75 and show-cause notice was issued to the writ petitioner respondent. The writ petitioner respondent filed his show-cause again reiterating that he had earlier passed the said examination while he was in Government service. After re-fixation of his pay, steps were taken to recover the excess money amounting to Rs. 95,567.75 and show-cause notice was issued to the writ petitioner respondent. The writ petitioner respondent filed his show-cause again reiterating that he had earlier passed the said examination while he was in Government service. Thereafter, the impugned orders were passed revising his pension on the basis of refixation of salary and taking steps for recovery of the aforesaid amount after adjustment of the gratuity amount from the pension of the petitioner at the rate of Rs. 500.00 per month which orders, as stated above, were challenged by the writ petitioner-respondent. 4. Learned single Judge quashed the orders and allowed the writ applications wholly on the ground that as the annual increments were granted to the writ petitioner-respondent without any misrepresentation or representation, after his retirement the authorities cannot recover the amount from the post retiral benefits even if the writ petitioner has not passed Hindi Noting and Drafting Examination. 5. There is no dispute between the parties that the State of Bihar made regulation known as "Bihar Government Service (Hindi Examination) Regulation, 1968." The appellant Board by resolution No. 537 dated 16-7-1979 adopted the aforesaid regulation. According to the said regulation, passing of Hindi Noting and Drafting Examination in Devnagri script or Hindi Reading and Writing Examination in Devnagri Script or both examinations are condition precedent for grant of increment, confirmation or crossing efficiency bar. In other words, mandatory requirement of regulation is that if an employee is not able to pass the aforesaid examination, he shall not be given any increment, promotion nor he will be allowed to cross efficiency bar till such employee passes the examination or examinations. 6. The case of the appellant Board is that after adoption of the said regulation, it was communicated to all concerned employees. The writ petitioner-respondent always gave an impression to the local authorities that he has passed the aforesaid examination while he was in Government service, as a result of which no verification could be made at the place of posting of the writ petitioner-respondent. However, at the time of superannuation, the headquarter verified the records and made enquiry as to whether the writ petitioner-respondent had passed the aforesaid examination or not. However, at the time of superannuation, the headquarter verified the records and made enquiry as to whether the writ petitioner-respondent had passed the aforesaid examination or not. Then, he gave reply that he passed the said examination while he was in Government service but he did not produce any paper in support of the same and thus the Board had no option but to take steps for refixation of pay and pension. This is a clear case of misrepresentation on the part of the writ petitioner-respondent. 7. The case of the writ petitioner-respondent, on the other hand, is that he had passed the aforesaid examination while he was in Government service and thus there was no requirement to pass the said examination again. Alternative stand is that there was no misrepresentation on his part and once the increments etc. had been allowed while he was in service, the benefit of the same cannot be withheld after his superannuation. 8. Learned Counsel appearing for the writ petitioner-respondent submitted that his case is squarely covered by the decision rendered by the apex Court in the case of Bihar State Electricity Board V/s. Bijay Bahadur, (2000)10 SCC 99 , wherein in similar circumstances the apex Court has held that unless there is misrepresentation or representation on the part of the employee, the Board cannot deduct or recover the excess amount paid by way of increment at an earlier point of time. 9. Learned Counsel appearing for the board, on the other hand, submitted that the law laid down by the apex Court in the said case has no application in the present case as there is misrepresentation on the part of the writ petitioner-respondent and he cannot take the benefit of the law laid down in the said case, specially when it was clearly held in the said case that the order passed in the said case was restricted to the facts of the said case only. 10. While the matter was pending before this Court, we directed the learned Counsel for the writ petitioner-respondent to produce any document to show that he had appeared in the aforesaid examination which he was in Government service. He did not produce any such document. 11. 10. While the matter was pending before this Court, we directed the learned Counsel for the writ petitioner-respondent to produce any document to show that he had appeared in the aforesaid examination which he was in Government service. He did not produce any such document. 11. The question for consideration in this case is as to whether in the facts of this case, the Board is entitled to recover the excess amount and refix the pension of the writ petitioner-respondent or not. The apex Court in the case of Sahib Ram V/s. State of Haryana, 1955 Supp (1) SCC 18, which has been relied upon by the apex Court in the case of Bijay Bahadur (supra) as well as in the said case has held that in absence of any misrepresentation or representation on the part of the employee there could be no recovery of the excess amount paid to him and the action of the employer in taking steps for recovery cannot be said to be in consonance with equity, good conscience, justice and fairness. In the present case, as appears from the record, the writ petitioner-respondent always gave an impression that he has passed the said examination and as such on that basis the Board did not proceed earlier and at the time of his superannuation the records were verified and enquiry was conducted to verify the fact as to whether he has passed the Hindi. Noting and Drafting Examination or not and thereafter, he was asked to produce the document. The writ petitioner-respondent did not produce any document in support of the factum of appearing in the Hindi Noting an Drafting Examination. Thus, the case of the writ petitioner-respondent is a case of misrepresentation or at least suppression of fact and he cannot be allowed to take the benefit of his own wrong. In other words, public money cannot be allowed to be retained as a result of wrong committed by the employee. On facts also, Bijay Bahadurs case has no application at all. In other words, public money cannot be allowed to be retained as a result of wrong committed by the employee. On facts also, Bijay Bahadurs case has no application at all. In the case of Bijay Bahadur (supra) the employees had passed examination later on and the apex Court found that there was nothing on the record to show that earlier there was intimation to them about passing of the aforesaid examination as a condition precedent for grant of increments and taking into consideration these aspects of the matter, it was held that the recovery was bad in law. It was clearly stated in para 10 of the said order that the order passed in the said case would be restricted to the facts of the said case only. It was clarified that the Regulation 8 will 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. 12. As in this case admittedly the writ petitioner-respondent had not passed the said examination and he wrongly said to have passed the same, his case is based on misrepresentation of fact, as such equity is not in his favour. Thus, the impugned orders cannot be faulted on any legal and valid ground. 13. In the result, this appeal is allowed and the order passed by the learned single Judge is set aside and the writ application is dismissed.