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2007 DIGILAW 1548 (PAT)

Paras Kumar Jha v. Union Of India

2007-09-19

AJAY KUMAR TRIPATHI

body2007
Judgment 1. Heard counsel for the parties. 2. I.A. No. 5203 of 2007 has been filed by the petitioner to implead Madhya Bihar Gramin Bank as a party respondent in view of the fact that Nalanda Gramin Bank has now merged in the newly created body. 3. I.A. is allowed. 4. Petitioner has challenged the decision dated 30.3.2005 contained in Annexure-1 to the writ application. By virtue of this decision the respondent Bank in their wisdom has decided to recover a sum of Rs. 49,188.92 which they held was wrongly paid to the petitioner in applying the benefit of increment under what is known as switch over facility. Learned counsel for the petitioner submits that this order impugned has been passed in violation of principles of natural justice because no notice was given to the petitioner prior to issuance of Annexure-1. Not only this since the benefit was granted to the petitioner by the respondent Bank on their own volition and there was neither any misrepresentation or fraud committed by the petitioner in this regard, the benefit granted to him or similarly situated employees could not be taken away by a stroke of pen. According to the petitioner he has been enjoying the grant of increment from 20.4.1999 and after more than five years this was suddenly being withdrawn based on a so-called communication received by the Bank from NABARD raising certain objections. 5. Counsel for the respondent Bank, however, justifies the action on the ground that as a matter of policy the concept of switch over facility was adopted in matters of grant of increment to officers working under Scale-ll and subsequently promoted to Scale-Ill. The switch over facility was evolved to meet the stagnation, which may accrue in service due to delay in grant of subsequent promotion to Scale-Ill. This concept and decision was to be implemented from 16.12.2002. Petitioner and similar employees derived benefits from 1999 itself. This issue, therefore, travelled up and the matter was considered by the nodal Bank i.e. NABARD. The sponsor bank i.e. Punjab National Bank was clearly directed to see that the benefit of switch over facility was made available to the employees in uniformity and from the date from which it was made effective i.e. 16.12.2002. This issue, therefore, travelled up and the matter was considered by the nodal Bank i.e. NABARD. The sponsor bank i.e. Punjab National Bank was clearly directed to see that the benefit of switch over facility was made available to the employees in uniformity and from the date from which it was made effective i.e. 16.12.2002. Based on this directive of NABARD an exercise was carried out and it was discovered that 13 employees of the Bank had been granted benefit of increments from the year 1999 itself. When this discrepancy was discovered the respondent authorities were compelled to act in the matter and it was in this background that the order impugned contained in Annexure1 came to be passed. They categorically submits that there is uniform application of the policy and no employee can be permitted to urge that he can retain or hold on to a benefit under a scheme even though it clearly states that the benefit of the same will accrue from an assigned date. According to the counsel for the respondents the action was initiated as a matter of course correction and to bring uniformity in implementation of the switch over facility. Learned counsel for the respondents also points out that out of the 13 employees petitioner is the only one who is aggrieved by such an action and the other 12 have accepted the decision of the respondent Bank in this regard as there is no challenge by them. 6. The question which arises, therefore, is whether the respondents action which has been taken in Annexure-1 to recover the quantified amount of money because of grant of a benefit earlier then the date on some mistaken understanding of the policy can be permitted to be retained by the petitioner? and whether the petitioner was entitled to a notice in this regard prior to the decision? 7. This Court is of the opinion that any order which is passed or issued to the detriment of an employee does require a kind of notice in this regard. Since the petitioner was enjoying the benefit of the increments in question over a period of more than five years, before effecting the change or correction, the respondents ought to have given a notice and explained the situation to the petitioner. It is an accepted position that in the present case this course was not adopted. Since the petitioner was enjoying the benefit of the increments in question over a period of more than five years, before effecting the change or correction, the respondents ought to have given a notice and explained the situation to the petitioner. It is an accepted position that in the present case this course was not adopted. To that extent the petitioner seems to be correct in his submission. 8. The second issue which has been raised by the petitioner is that in absence of notice as well as in absence of any wrong doing on the part of the petitioner this recovery cannot be effected. In this regard learned counsel for the petitioner relies on a few decisions rendered by the Hon ble Supreme Court, they are: (1) (1994)6 SCC 154 (Bhagwan Shukla Vs. Union of India). (2) 1995 Supp. (1) SCC 18 (Sahib Ram Vs. State of Haryana). (3) (1994)2 SCC 521 (Shyam Babu Verma Vs. Union of India). 9. In the case of Bhagwan Shukla (supra) the Hon ble Supreme Court held that non-issuance of notice to the petitioner amounted to violation of natural justice. The Court took notice of the fact that the respondent authorities had resorted to reduction in the pay scale on the ground of wrong fixation and its continuity for administrative lapses for more than 24 years and, therefore, had held that notice was a must in the given case. 10. In the case of Shyam Babu Verma (supra) also the Supreme Court held that recovery of excess amount after more than ten years would not be in order and, therefore, restrained the respondents from effecting recovery in a case of wrong fixation. Even in the case of Sahib Ram (supra) the Hon ble Supreme Court after considering the basic facts was of the opinion that the recovery ought not to be permitted in the given situation. 11. Learned counsel for the respondents, however, submits that in none of the above decisions of the Hon ble Supreme Court the question or principle has been decided that the respondents do not have requisite authority in all circumstances to withdraw a benefit which has accrued to an employee over a period of time bmisapplication of certain Rules or policies. 11. Learned counsel for the respondents, however, submits that in none of the above decisions of the Hon ble Supreme Court the question or principle has been decided that the respondents do not have requisite authority in all circumstances to withdraw a benefit which has accrued to an employee over a period of time bmisapplication of certain Rules or policies. None of the decisions of the Hon ble Supreme Court says that the authorities are barred as a matter of principle to make any recovery in these circumstances. He draws my attention to a recent Full Bench decision of Patna High Court in the case of Ram Binod Singh Vs. Bihar State Electricity Board (F.B.), 2007(3) PLJR 398 . Learned counsel for the respondent relies on this decision because similar issue was raised in a large number of writ applications and there was a kind of conflict in two decisions which were rendered by Division Benches of this Court. The Full Bench decision in Ram Binod Singh (supra) after considering various decisions of not only this Court but even Hon ble Supreme Court has laid down various classifications under which a recovery can be made. They have also given illustrative example under which authorities can be barred from making recoveries, more so, after retirement of an employee. In sum however the Full Bench has held that not all recoveries are illegal or bad. 12. Learned counsel for the Bank, therefore, draws my attention to paragraph 26 of the judgment and indicates that in view of the decisions as well as the principle decided therein the action which has been taken by the respondents cannot be said to be an illegal decision. This Court finds substance in the submission of the respondents based on the ratio of the Full Bench rendered in paragraph 26. 13. This Court has taken note of the fact that the authorities no doubt communicated their decision to the petitioner contained in Annexure-1 on 30.3.2005 but there was a background to the same. It is not a case of individual fixation of pay or withdrawing a benefit which has been granted to a particular employee. The question was of uniform application of a policy from which benefits had to accrue to employees of the Bank as a whole. It is not a case of individual fixation of pay or withdrawing a benefit which has been granted to a particular employee. The question was of uniform application of a policy from which benefits had to accrue to employees of the Bank as a whole. The authorities have themselves accepted the position that this benefit was to be made available from 16.12.2002 but under a mistake the employees in question were given the facility from 20.4.1999 itself. There is no dispute with regard to this scheme being made applicable from 16.12.2002. The modification or the recovery which has been made pertains to the period when money has been made over to the petitioner due to the increase in increment under the policy from the year 1999. It is also a fact that out of 13 persons against whom similar order in question came to be issued, 12 of them have accepted the position and the decision of the Bank. It is only the petitioner who has a grievance in the given matter. 14. The question is whether on the ground which has been urged by the petitioner he can be allowed to retain the benefit which has accrued to him on a mistaken application of the policy? This Court is of the opinion that there has to be uniformity in application of any policy and the benefit which has to accrue must accrue uniformly and universally to employees working under the Bank in similar circumstances. They all must get the benefit in uniform manner and from the date from which this benefit was ordered to be granted. If at the local level a mistake was committed by some functionary of the Bank the institution as a matter cannot be held back from effecting such recoveries and effecting corrections subsequently specially when the mistake has been pointed out by the nodal Bank i.e. NABARD, which coordinates the functioning and implemenation of all Regional Rural Banks. 15. This Court, however, is of the opinion that since the petitioner was taken in by surprise by this decision communicated to him on 30.3.2005, it would be too harsh to him to effect recovery in one go, but since then recovery had already been made and the petitioner has already paid up, there is no occasion for this Court to take away the rigors of implementation of such recovery. 16. 16. This Court does not feel that the action of the respondents taken under Annexure-1 suffers from any legal vice. This writ application is accordingly dismissed.