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2007 DIGILAW 299 (PAT)

State Of Bihar v. Ram Sharan Prasad Singh

2007-02-08

J.N.BHATT, S.K.SINHA

body2007
Judgment 1. This Letters Patent Appeal at the instance of the State is directed against the judgment of the learned Single Judge, recorded in C.W.J.C. No. 2952 of 2000, on 6.5.2005, whereby, the petition of the respondent came to be allowed with a direction not to implement the order of recovery with a further direction that the State should not show that the pay scale was fixed on misrepresentation or suppression of the fact by the petitioner after his superannuation and the petitioner cannot be made to suffer and no recovery can be made from his pensionary benefits, hence this Letters Patent Appeal under Clause 10 of the Letters Patent. 2. We have heard learned counsels appearing for the parties. We have considered the factual matrix. We have, also, examined the text and tenor of the impugned judgment and order of the learned Single Judge. 3. The respondent, original writ petitioner had filed a writ petition under Article 226 of the Constitution of India for quashing annexure 6, the order dated 11.2.1999, whereby, after his superannuation from service his pay scale has been revised and the excess amount paid came to be directed to be recovered from his pensionary benefits. 4. The original writ petitioner has been a Class IV employee in the department of Minor Irrigation and he came to be superannuated on 30.6.1995. Long thereafter, the aforesaid order came to be passed. The petitioner, inter alia, contended that ther.e was no show cause notice given to him and he has been visited with civil and evil consequences without his fault. He has, also, raised a plea that he had not misrepresented for getting the higher salary or wages. 5. To our utmost surprise, now, a contention is being raised on behalf of the State that the scale came to be fixed on the basis of misrepresentation which was never the case of the Government before the learned Single Judge. It is the settled proposition of law that if a person is paid by mistake excess amount other than he is due to be paid and entitled to, after superannuation, ordinarily, no recovery should be effected. It is the settled proposition of law that if a person is paid by mistake excess amount other than he is due to be paid and entitled to, after superannuation, ordinarily, no recovery should be effected. This proposition is very well clear and highlighted in the decision rendered in the case of Raghubir Prasad Singh V/s. The Bihar State Electricity Board and Ors., 1996 0 BBCJ 15 wherein relying on the decision of the Hon ble Apex Court in "Shiv Ram V/s. The State of Haryana, 1995 Supp1 SCC 18 it has been held that even if by mistake higher pay scale was given to the petitioner which was not fixed on misrepresentation of the petitioner, no recovery can be made and the order of recovery was set aside. This judgment was considered in several other cases by this Court. 6. It appears that the question of misrepresentation comes for the first time in course of the submission of the learned counsel appearing for the State. It is not only a great matter of surprise but a great puzzling and harassing one. When a responsible Officer of the State like a Law Officer makes a statement, it must be made by knowing all consequences. 7. It is in these context, we are tempted to quote the contention raised in paragraph 7 of the memo of appeal which reads hereinunder as: "That it is stated that petitioner was entitled for 1st time bound promotion w.e.f. 1/4/81 in the scale of Rs. 400-540 and second time bound promotion w.e.f. 1.4.84 in the scale of Rs. 425-605 by Superintending Engineer, Minor Irrigation Circle, Bhagalpur. But due to some clerical mistake the petitioners scale got revised after 1st time bound promotion in the scale of Rs. 400-540 in the last stage 540 + R.P.P. 100 in the place of Rs. 540 only and 2nd time bound promotion in the scale of Rs. 425-605 to the last stage of 605 + R.P.P. 115 in place of 605 only. The petitioner was entitled to get his salary in the scale of Rs. 400-540 in last stage of Rs. 540/- only and in the scale of Rs. 425-605 in the last scale of Rs. 605 only." 8. 425-605 to the last stage of 605 + R.P.P. 115 in place of 605 only. The petitioner was entitled to get his salary in the scale of Rs. 400-540 in last stage of Rs. 540/- only and in the scale of Rs. 425-605 in the last scale of Rs. 605 only." 8. Similarly, we would like to reproduce the Contention raised in paragraph 19 of the memo of appeal which reads hereinunder as: "That it is stated that the petitioner has challenged the said order of Executive Engineer dated 11/2/99 in C.W.J.C. No. 2952/2000 in this Hon ble High Court under appeal whereby and whereunder the Hon ble High Court has set aside the impugned order of rejection/recovery i.e. Annexure-6 of the writ application with an observation that the said pay scale of the petitioner has been fixed neither on the misrepresentation of the petitioner nor by the suppression of facts by the petitioner. Hence no recovery can be made from the petitioner." 9. It could very well be visualised and seen from the aforesaid paragraphs that there was no even slightest insinuation against the original writ petitioner that he made any misrepresentation. On the contrary, it becomes explicit and evident that in earlier round of writ petition this High Court has, already, set aside the impugned order recorded by the Executive Engineer dated 12.2.1999 on the ground that the pay scale of the original writ petitioner had been fixed neither on misrepresentation of the petitioner nor the suppression of the fact by the petitioner and, therefore, there shall be no recovery from the petitioner. 10. We have failed to understand how the Department of Law runs like this. Once the matter has become final and the point has been adjudicated on merits and it has been held that there was no misrepresentation on the part of the petitioner and there was no, also, any suppression of the fact on the part of the petitioner how with all audacity and boldness, this Letters Patent Appeal came to be filed, is to be seen. It is in this context, we propose to give directions to the Chief Secretary of the State of Bihar hereinafter. 11. Even if the contents of paragraph 20 in the memo of appeal are taken into account as requested by learned counsel then, also, there is nothing against the petitioner. It is in this context, we propose to give directions to the Chief Secretary of the State of Bihar hereinafter. 11. Even if the contents of paragraph 20 in the memo of appeal are taken into account as requested by learned counsel then, also, there is nothing against the petitioner. It was pleaded as an afterthought as a case of misrepresentation by the Union and because the petitioner was, also, a member of the Union, can the same knowledge be imposed on him despite earlier judicial adjudication recorded by this Court in a Constitutional writ. Really, our heart is not only painful but it is startled. 12. It is in these context, we direct the Chief Secretary of the State of Bihar to hold an inquiry on the following aspects and submit a report within a period of three months before the Registry of this High Court, failing which, further order shall be passed: (1) To examine the entire record showing as to who decided to file an appeal against the recovery of the excess amount. (2) To find out as to who is responsible for the excess payment and recover the excess amount, if any, from the salary of such Officer after giving an opportunity of hearing and holding an inquiry, expeditiously. 13. In the aforesaid backdrop of facts and the relevant proposition of law and the factual matrix, we are left with no alternative but to raise our hands in helplessness dismissing this Letters Patent Appeal at the threshold after hearing learned counsels for the parties directing the appellant State to pay a cost of Rs. 5,000/- by way of special and exemplary cost to the original writ petitioner, respondent before us, within a period of one month from today. 14. The direction is given to deposit the cost with the Registry of this Court within one month and if not paid, the Registry will bring up the matter to our notice for our further directions and orders which shall be viewed, also, with a great displeasure. 15. The Chief Secretary is directed to bring such matters to the notice of the Hon ble the Law Minister, in-charge under Rules of business.