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Jharkhand High Court · body

2009 DIGILAW 1052 (JHR)

Syed Mohammad Hashim v. State of Jharkhand

2009-07-29

D.G.R.PATNAIK

body2009
JUDGMENT : Heard learned counsel for the parties. 2 The petitioner in this application has prayed for direction to the respondents to pay him his full pension fixing his pay in the pay scale of Rs.6500-10500/-, full gratuity, leave encashment for 240 days, and for fixing his pay in the scale of Rs.5500-9000/-from 8.12.2000 and for payment of arrears in the said scale. 3 The petitioner was initially appointed as a Forest Guard on 12.3.1962 in the Department of Forest and he was promoted to the post of Forester on 7.3.1980. Subsequently, he was promoted to the post of Forest Range Officer on 8.12.1994 and posted at Koderma, and at that time his pay was fixed in the scale of Rs. 5500-9000/-. He retired from the post on 30.11.2001. 4. Pursuant to the direction of the High Court, the State of Jharkhand through its letter dated 9.9.2003, revised the pay scale of Rs. 5500-9400/-to the scale of Rs. 6500-10,500, for the Forest Ranger Officers w.e.f. 15.11.2000. According to the petitioner, he became entitled to the scale aforesaid from 8.12.2000. The contention of the petitioner is that throughout his career and even at the time of his retirement, there was no departmental proceeding pending against him. Furthermore, having rendered more than 24 years of service, he was entitled to 2nd time bound promotion from 20.9.2000 and the monetary benefits thereof. The grievance of the petitioner is that though he is entitled to pension to be calculated in the pay scale of Rs. 6500-10500/-his pension was fixed in the pay scale of Rs. 5500-9000/-. 5. Further prayer has been made in this writ petition by way of amendment, challenging the order dated 6.4.2005 (Annexure 4) issued by the Conservator of Forest, Departmental Work Circle, Hazaribagh, whereby 2nd time bound promotion earlier granted to him vide office order 18.5.1994 has been cancelled and order has passed for recovery of sum of Rs. 43000/-from his gratuity amount on the plea that excess payment has been made to the petitioner. Learned counsel for the petitioner would argue that the impugned order cancelling the 2nd time bound promotion and the order for recovery from the gratuity amount has been passed four years after the petitioner’s retirement, and therefore, it is illegal, arbitrary and against the principles of natural justice. Learned counsel for the petitioner would argue that the impugned order cancelling the 2nd time bound promotion and the order for recovery from the gratuity amount has been passed four years after the petitioner’s retirement, and therefore, it is illegal, arbitrary and against the principles of natural justice. Before cancelling the 2nd time bound promotion and passing the order for recovery from the gratuity amount, no prior notice or opportunity of hearing was given to the petitioner. Learned counsel argues further that even otherwise, the recovery of the amount from the petitioner’s gratuity could not be resorted to without first resorting to the provisions of section 43B of the Pension Rule. 6. Learned counsel for the respondents, on the other hand, explains that though the petitioner was given 2nd time bound promotion, but it was provisional. The matter was referred to the Finance Department which did not approve the 2nd time bound promotion granted to the petitioner, on the ground that the petitioner was not entitled to such promotion from the date from which it was granted to him. It was thereafter realized that the petitioner having obtained 2nd time bound promotion on a date earlier than due to him, had drawn excess payment in salary which has been finally assessed and calculated at Rs. 43,242/-and which is sought to be recovered from the gratuity amount of the petitioner. Learned counsel informs that the petitioner has already been paid 90 percent amount of pension and gratuity and in the counter affidavit, the respondents have given reasons for the order of cancellation of promotion and the order of recovery of the amount drawn in excess by the petitioner though, admittedly, no prior notice was given to the petitioner before passing the impugned order. 7. As it appears, admittedly, the impugned order has apparently been passed more than 4 years after the petitioner’s retirement. Admittedly, no proceeding in accordance with the provisions of rule 43B of the Pension Rules was initiated against the petitioner. Admittedly, the alleged excess payments were not made on account of any fraud or misrepresentation on the part of the petitioner. Under such circumstances, the order for recovery of the purported excess payments from the petitioner’s gratuity amount is illegal, arbitrary and in violation of the principles of natural justice and therefore cannot be sustained. Admittedly, the alleged excess payments were not made on account of any fraud or misrepresentation on the part of the petitioner. Under such circumstances, the order for recovery of the purported excess payments from the petitioner’s gratuity amount is illegal, arbitrary and in violation of the principles of natural justice and therefore cannot be sustained. Accordingly, the impugned order of recovery from the petitioner’s gratuity amount is hereby set aside. As regards petitioner’s claim for fixation of his salary in the revised scale and confirmation of his 2nd time bound promotion granted to him, it appears that a controversy has been raised in respect of the date from which the petitioner was eligible for such promotion. If any error in fixation of salary is detected, the respondents are entitled to rectify such error. The respondents are at liberty to make proper assessment in this regard and to take an appropriate decision subject to further condition that prior to taking such decision, the petitioner must be given an opportunity of hearing to defend his case. If according to the final assessment, the petitioner is found entitled to the 2nd time bound promotion from any subsequent date, prior to the date of his retirement, the concerned authority of the respondents shall act accordingly and fix the salary of the petitioner and his pension in the appropriate scale of pay, within three months from the date of receipt/production of a copy of this order and communicate such decision effectively to the petitioner. The amount of recovery, if any, made from the gratuity amount of the petitioner shall be refunded to the petitioner and whatever amount of retirement benefit is due for payment, shall be paid forthwith to the petitioner. With the above observations, this application is disposed of. Let a copy of this order be given to the learned counsel for the respondents.