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Jharkhand High Court · body

2009 DIGILAW 1161 (JHR)

Md. Rayeesuddin v. State of Jharkhand

2009-08-20

AMARESHWAR SAHAY

body2009
JUDGMENT Heard. The short question which is involved in the present writ petition is as to whether the two orders as contained in Annexure-1 and 1/A dated 06.07.2001 passed by the Executive Engineer, Public Health Division, Adityapur, for recovery of the amount said to have been paid in excess to the petitioner due to wrong fixation of their pay can be recovered from the retiral dues i.e from Gratuity or from Leave Encashment?; as has been done in the present case. The points in issue is fully covered by the two Full Bench judgments of this Court, reported in 2007 (4) JLJR 459 in case of Laxman Prasad Gupta Versus The State of Jharkhand & Ors, and 2007 (4) JLJR 466 in the case of Smt. Normi Topno Versus The State of Jharkhand & Ors. The Full Bench held that – “in the light of absence of any material to show that the excess amount was received by the petitioner by misrepresentation, collusion, fraud or negligence, the said excess amount cannot be recovered out of retiral dues, after retirement without following the procedure contemplated under Rule 43(b) of the Bihar Pension Rules.” The full Bench found that the said procedure, which was mandatory, was not followed. Therefore, the action of the respondents for recovery of the amount from the retiral dues was held to be not valid in law. The next decision of the Full Bench in the case of Smt. Normi Topno, (supra) is that, after retirement, relationship of employer – employee does not exist, and as such, no recovery can be made from the retiral benefits without following the procedure of law as provided in the Rule 43(b) of the Bihar Pension Rules. Accordingly, it was held that without fulfilling the conditions under Rule 43 (b) and without canceling the order of promotion after enquiry by the competent authority, pension and other retiral benefits cannot be recovered and that too without giving opportunity to the retired employee and without giving any findings with reference to the misrepresentation or misconduct on the part of the concerned employee or the other employee merely on the recommendation of audit objection. In the present case, the petitioners who were the I/c Head-clerks. The petitioner No.1 retired from service on 30.11.1999 whereas the petitioner No.2 retired from service on 30.04.2000. Annexure-1 and 1/A were issued after their retirement. In the present case, the petitioners who were the I/c Head-clerks. The petitioner No.1 retired from service on 30.11.1999 whereas the petitioner No.2 retired from service on 30.04.2000. Annexure-1 and 1/A were issued after their retirement. it is not the case of the respondents that the said wrong fixation of pay of the petitioners was made on the basis of any representation or misrepresentation or any fraud played by the petitioners, and therefore, in my view, the orders as contained in Annexure-1 and 1/A for recovery of the amount said to have been paid in excess to the petitioners could not have been ordered to be recovered without following the mandatory provision of Rule 43(b) of the Service Code. Accordingly, the application is allowed, and the orders as contained in Annexure-1 and 1/A, are, hereby, quashed. It is stated that the amount pursuant to Annexure-1 and 1/A has already been deducted from the pensionary benefits of the petitioners. In this view of the matter, the respondents are directed to refund the said amount to the petitioners along with interest @ 9 % per annum from the date it was deducted till the date of payment, within a period of two weeks from the date of receipt /production of a copy of this order.