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2006 DIGILAW 1372 (JHR)

Satya Narayan Singh v. State Of Jharkhand

2006-11-30

PERMOD KOHLI

body2006
JUDGMENT Permod Kohli, J. 1. Petitioner was serving as a Constable in the Police Department of the then State of Bihar. He was posted in the Dumka District Force. After earning one promotion, as Hawildar he finally retired from service on 07 th March, 2000. According to the petitioner, he was not aware of the date of his retirement due to non-availability of his service book. It is stated that the service record of the petitioner had been destroyed and to support this contention reliance is placed upon a communication dated 20 th of October, 2000 of the Superintendent of Police, Dumka. Petitioner was made to retire on 07 th March, 2000 after his service book was received in the office of the Superintendent of Police, East Singhbhum, Jamshedpur, wherein, the date of the birth of the petitioner was recorded as year 1941. On the basis of the recorded date of birth, he was to retire on 30 th of June, 1999. After retiring the petitioner, the Superintendent of Police, East Singhbhum, Jamshedpur passed an order No. 609 dated 08 th of March, 2000 for recovery of salary drawn by the petitioner with effect from 01.07.1999 to 07 th March, 2000 from his pension and gratuity, this order came to be challenged by the petitioner in W.P. (S) No. 3626 of 2003, which came to be disposed of vide order dated 12 th October, 2004 with a direction to the Director General of Police to take a final decision on the representation pending before him. On consideration of the representation of the petitioner, the Director General of Police has passed a reasoned order dated 15 th January, 2005 and concurred with the earlier order of the Superintendent of police, East Singhbhum, Jamshedpur, Dated 8 th March, 2000 whereunder recovery was ordered. 2. Assailing both the above said two orders of recovery and rejection of the representation of the petitioner, it is contended on behalf of the petitioner hat petitioner overstayed in service, not on account of any misrepresentation on his part but due to negligence of the Department. It is particularly mentioned that service book of the petitioner was not made available and petitioner was not aware of his date of retirement, therefore he has overstayed in service and performed the service duties, hence no recovery can be effected from his pensionary and retiral benefits. It is particularly mentioned that service book of the petitioner was not made available and petitioner was not aware of his date of retirement, therefore he has overstayed in service and performed the service duties, hence no recovery can be effected from his pensionary and retiral benefits. Admittedly, petitioner has overstayed in service for a period of eight months and has drawn salary for this period. In the counter affidavit and in the order dated 08 th March, 2000, it is stated that petitioner was fully aware of his date of retirement. It is also mentioned that petitioner approached the then Superintendent of Police, East Singhbhum on 08 th of October, 1999 and informed him of his date of birth. The Superintendent of Police, wrote letters to the D.I.G., South Chhotanagpur, Ranchi for sending the service book of the petitioner, which was made available on 07 th March, 2000 and on examining the service book, it was found that petitioner should have retired on 30 th of June, 1999, accordingly, petitioner was made to retire on 07 th of March 2000. Consequently, recovery was ordered from his emoluments vide order dated 08 th of March, 2000. 3. Learned Counsel appearing for the petitioner has relied upon a decision in the case of Suraj Rai v. State of Jharkhand and Ors. reported in 2002 (3) J.C.R. 342 (Jhr.). This judgment relates to wrong fixation of pay. Another judgment relied upon is 2002 (3) J.C.R. 523 , Ram Kripal Sai v. State of Jharkhand and Ors. This case relates to overstaying in service and this Court set aside the order of recovery in view of an earlier judgment in C.W.J.C. No. 1752 of 1998 (R), whereby a direction was issued for recovery of access amount from the erring Officer. Petitioner has also relied upon a decision in the case of Sahib Ram v. State of Haryana and Ors. reported in 1995 Supp (1) SCC 18, wherein, the Honble apex Court held as under: However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. 4. Under the circumstances the amount paid till date may not be recovered from the appellant. 4. This judgment was followed by this Court in the case of Bhola Prasad Choudhary v. State of Jharkhand and Ors. ,wherein access amount paid on account of wrong time bound promotion was directed not to be recovered. 5. Learned Counsel appearing for the petitioner relied upon another judgment in the case of Ram Prasann Singh v. State of Jharkhand and Ors. reported in 2005 (4) J.C.R. 48 (Jhr.), wherein a direction was issued not to recover any amount from the retiral benefits paid to the petitioner due to wrong promotion without any misrepresentation. 6. Learned Counsel appearing for the Respondents has referred to a judgment in the case of Radha Kishun v. Union of India and Ors. . In this case, Honble Supreme Court observed as under: It would be an obvious case of absolute irresponsibility on the part of the officer concerned in the establishment in the section concerned for not taking any action to have the petitioner retired from service on his attaining superannuation. It is true that the petitioner worked during that period, but when he is not to continue to be in service as per law, he has no right to claim the salary etc. It is not the case that he was re-employed in the public interest, after attaining superannuation. 7. In the present case it is specifically mentioned in the order dated 8 th of March, 2000 that the petitioner approached the then Superintendent of Police, East Singhbhum, on 18 th September, 1999 and informed him that he was to retire in the month of October. The petitioner duos not dispute this fact. In the writ application, rather in Para II, averment made in the order dated 08 th of March, 2000 has been accepted, therefore, it is evident that petitioner had knowledge of his due date of retirement even without examining the entry in the service book. He eventually maintained silence to reap the benefit of inaction on the part of the authorities. Though there is no express misrepresentation but not disclosing the true factual position and keeping silence, also amounts to misrepresentation. Under these circumstances, the judgments relied upon by the learned Counsel appearing for the petitioner will not apply and the observations of the Honble Supreme Court in Radha Kishun (Supra) will rule the field. Though there is no express misrepresentation but not disclosing the true factual position and keeping silence, also amounts to misrepresentation. Under these circumstances, the judgments relied upon by the learned Counsel appearing for the petitioner will not apply and the observations of the Honble Supreme Court in Radha Kishun (Supra) will rule the field. This writ petition is, accordingly, dismissed.