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2008 DIGILAW 873 (JHR)

Ram Kripal Mandai v. State of Jharkhand

2008-08-05

D.G.R.PATNAIK

body2008
Order The petitioner in this writ application has prayed for issuance of direction to the respondents to refund the sum of Rs. 69,335/- deducted from the retiral benefits dues of the petitioner and for payment of his promotional pay granted in the scale of Rs. 5,500-9,000/- with effect from 9.8.1999 to 31.1.2002 as well as for a direction to pay to the petitioner a sum of Rs. One lakh by way of damages and a sum of Rs. 10,000/- towards litigation cost on the delayed payment of his retirement dues alongwith interest at the rate of 18% per annum. 2. The petitioner was appointed as an Assistant in the Ranchi Collectorate on 27.5.1963 and he retired from service on 31.1.2002 on the post of Head Assistant. He was granted pay scale of Rs. 5,000-8,000/- w.e.f. 1.1.1996 and he got salary in that scale of pay even on the date of his retirement on 31.1.2002. On his retirement he was paid admissible retiral benefits including retirement gratuity, leave encashment for 240 days, admissible group insurance amount with interest as well as provisional pension regularly per month. Accountant General, Bihar, Patmi, has already sanctioned pension @ Rs. 3,477/- per month besides a sum of Rs. 1,68,5151- as retirement gratuity. However, after his retirement a sum of Rs. 69,335/- has been recovered from him by the respondents on the plea that the aforesaid sum has been paid to him in excess on account of wrong fixation of pay in the revised pay' scale with effect from 1.1.1996. . 3. The petitioner has assailed the aforesaid recovery of the amount from his retiral benefits on the ground that such act on the part of the respondents is totally illegal in view of the fact that no departmental proceeding in terms of Section 43(b) of the Bihar/Jharkhand Pension Rules was initiated against him prior to his retirement or even post retirement by the State Government. It is further contended that no prior notice or opportunity was given to him to explain before the respondents proceeded to recover the amount. It is further contended that the fixation in the revised scale of pay was made in terms of the fifth pay revision committee recommendation with effect from 1 .1.1996 and therefore there was no error in the fixation of his pay from 1.1.1996. It is further contended that the fixation in the revised scale of pay was made in terms of the fifth pay revision committee recommendation with effect from 1 .1.1996 and therefore there was no error in the fixation of his pay from 1.1.1996. It is also contended that since the petitioner was considered eligible for the revised pay scale in the need based post as on 1.1.1996, his scale of pay was rightly fixed at Rs. 5,000-150-8,0001- and he cannot be denied this privilege since it was at this scale that salary was paid to him at the time of his retirement and pension has been rightly fixed on the basis of salary drawn by him on the date of his retirement at the aforesaid scale of pay. 4. Learned counsel places reliance on the Full Bench decision of this Court in the State of Jharkhand vs. Padmalochan Kalindi [ 2007(4) JLJR 451 ]. 5. Counter affidavit has been filed on behalf of the respondents denying and disputing the entire claim of the petitioner, though admitting that the petitioner had retired on 31.1.2002 on the post of Head Assistant and after his retirement he was paid his admissible retiral benefits and the amount of monthly pension as approved and sanctioned by the Accountant General at the rate of 3,477/- per month. However, controversy raised by the respondents is that the pay of the State Government employees was revised from 1.1.1996 vide Finance Department's Resolution No. 37-02-5 VE PV 01/99 660 dated 8.2.1999. Department-wise and post-wise pay scales are mentioned in the Schedule-III of the said resolution was fixed. As per instruction in Part-II of the resolution, the State Government had decided to abolish the facilities of the time bound promotion and selection grade and declared that they shall cease to be applicable w.e.f. 1.1.1996. While fixing pay in the revised scale such promotion given before 31.12.1995 will not be taken into consideration, 'but promotion to any vacancy or post identified as need based post, would be admissible. The revised pay scale: of clerk as mentioned in Schedule-III of the said resolution of the Finance Department, is Rs. 4,000-100-6,000. The post of Head Assistant and Office Superintendent of the clerical cadre of the Collectorate are sanctioned as promotional need based posts from 1.1.1996 and the scale of pay of the post is Rs. 5,000-150-8,000/- and Rs. 5,500-175-9,000/- respectively. The revised pay scale: of clerk as mentioned in Schedule-III of the said resolution of the Finance Department, is Rs. 4,000-100-6,000. The post of Head Assistant and Office Superintendent of the clerical cadre of the Collectorate are sanctioned as promotional need based posts from 1.1.1996 and the scale of pay of the post is Rs. 5,000-150-8,000/- and Rs. 5,500-175-9,000/- respectively. The promotional identified need based posts are to be filled up by the appointing authority on seniority basis. In view of the above instruction and considering the post held by the petitioner, he was allowed the benefits of the revised scale of Rs. 5,000,150-8,000/- of the need based post from 1.4.1998 which was the date on which he was promoted to the post of Head Assistant. It is further contended that on 1.1.1996, the petitioner was posted only as the Circle Officer, Mandar and therefore, according to the pay scale revision, his pay scale was Rs'. 4,000-100-6,000 and he was not entitled to the scale of pay of Rs. 5,000-150-8,000 on 1.1.1996. The scale of pay of the petitioner was thus wrongly fixed at Rs. 5,000-150-8,000 from 1.1.1996 instead of the deserving date i.e. 1.4.1998. It is further stated that while fixing the pay scale of Rs. 5,000-150-8,000/-, an undertaking was obtained from the petitioner as per the instructions contained in r0.ra 17(i) of the resolution of the Finance Department dated 8.2.1999 that any excess payment found to have been made as a result of incorrect fixation of payor any excess detected subsequently in the light of the discrepancy, will be refunded by him to the Government either from his arrear pay bill in one lump sum or by adjustment against future payments including pension and gratuity. The respondents have therefore every right to recover the excess amount of Rs. 69,335/- paid to the petitioner due to incorrect fixation of pay and such amount has been rightly recovered from the pension of the petitioner. 6. As regards claim of the petitioner for second upgraded scale of Rs. 5,500,175-9,000/- after completion of 24 years of services from 9.8.1999 under the Assured Career Plan (ACP), the counter affidavit acknowledges that the petitioner's pay has been fixed in the aforesaid upgraded scale and entered in his service book and therefore considering the fact that in the pay fixation, .the petitioner's pay does not exceed total emoluments of Rs. 5,500,175-9,000/- after completion of 24 years of services from 9.8.1999 under the Assured Career Plan (ACP), the counter affidavit acknowledges that the petitioner's pay has been fixed in the aforesaid upgraded scale and entered in his service book and therefore considering the fact that in the pay fixation, .the petitioner's pay does not exceed total emoluments of Rs. 6,954/- which he has drawn on the date of retirement, his pension will not exceed beyond what was sanctioned by the Accountant General. It is further conceded that the service book of the petitioner was sent to the Commissioner, South Chotanagpur Division, Ranchi for confirmation of his time bound promotion on 1.4.1981 and the same was received back after confirmation on 8.2.2008. The service book has been sent to the Finance Department, Government of Jharkhand, Ranchi for confirmation of the second time bound promotion given to him from 27.5.1988, and as soon as his service book is received back from the Finance Department after confirmation of the second time bound promotion, promotional benefit under ACP will be paid to the petitioner in the upgraded scale. 7. It appears from the statement as contained in the counter affidavit of the respondents that the claim for recovery of Rs. 69,335/- has been made on the ground that the petitioner's salary was fixed wrongly at the scale of Rs. 5,000-1008,000/- from 1.1.1996 instead of 1.4.1998 and the excess payment made on account of such wrong fixation has therefore been realized. Admittedly, the purported error in the fixation of the pay of the petitioner was not on account of any misrepresentation on the part of the petitioner. No process for recovery was initiated prior to the date of retirement of the petitioner. Before proceeding to recover the purported excess amount, no notice was issued to the petitioner nor any opportunity was granted to him to explain as to why the recovery should not be made from him. Admittedly, no proceeding under the provisions of Section 43(b) of the Bihar/ Jharkhand Pension Rules was initiated before proceeding to recover the purported excess payment from the retiral benefits of the petitioner. 8. In case of State of Jharkhand VS. Admittedly, no proceeding under the provisions of Section 43(b) of the Bihar/ Jharkhand Pension Rules was initiated before proceeding to recover the purported excess payment from the retiral benefits of the petitioner. 8. In case of State of Jharkhand VS. Padmalochan Kalindi (supra), a similar issue came up for consideration before the Full Bench of this Court wherein facts disclosed was that on account of wrong fixation of pay, excess pay of a substantial amount was paid to the petitioner in that case and the same was sought to be recovered from the retirement benefits/pension of the retired employee. A plea was taken on behalf of the respondents-State in that case that at the time of making payment of salary to the employee on the basis of fixation of pay, which was later on detected to be erroneous, an undertaking was obtained from the employee that any excess payment made due to mistake will be recovered from his pension or gratuity. After having considered all the submissions made by the parties, this Court had held that no amount can be recovered from pension and retiral benefits of the retired employee because no order was passed under Rule 43(b) of the Bihar/Jharkhand Pension Rules, 1950 nor the competent authority had initiated any proceeding under Rule 43(b) of the said rules. It was also observed that the recovery of excess payment as sought to be made, was without even serving notice to the retired employee, nor affording him opportunity of hearing to explain as to why the amount should not be recovered. Such acts on the part of the respondents State being in utter violation of the principles of natural justice, the respondents State was not competent to proceed for recovery of any amount on the plea of excess payment, merely because the employee had himself given an undertaking for recovery of any excess payment from his retiral benefits. 9. Applying the settled principles of law as laid down in the Full Bench judgment in the case of Padmalochan Kalindi (supra), I have no hesitation to hold that the recovery of sum of Rs. 69,335/- from the retiral benefit of the petitioner by the respondents is illegal. The respondents are therefore directed to refund the total amount of Rs. 69,335/- to the petitioner which has been illegally deducted from his retiral dues. 10. 69,335/- from the retiral benefit of the petitioner by the respondents is illegal. The respondents are therefore directed to refund the total amount of Rs. 69,335/- to the petitioner which has been illegally deducted from his retiral dues. 10. As regards the claim of the petitioner for grant of ACP with the corresponding pay scale at Rs. 5,500-9,000/which has admittedly been given to him from 27.5.1988, the same has been admitted by the respondents though with explanation that the petitioner's service book has been forwarded to the Finance Department of the Govt. of Jharkhand for confirmation of the second time bound promotion and an assurance has been given that promotional benefit of the second upgraded scale of ACP would be given to the petitioner as and when confirmation is obtained from the Finance Department. The respondents are directed to act accordingly and to pay the promotional benefits of the second upgraded scale of ACP to the petitioner immediately after receipt of confirmation from the Finance Department, alongwith all arrears accrued from the date when the promotion was granted to the petitioner, till date of payment together with interest at the rate of six per cent per annum since delay in payment has not been occasioned on account of any lapse on the part of the petitioner. With the above observations, this application is disposed of.