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2010 DIGILAW 377 (JHR)

Kailash Kumar Das v. State of Jharkhand

2010-03-26

D.G.R.PATNAIK

body2010
Order Heard counsel for the parties. 2. The petitioner has prayed for quashing the order dated 3.9.2004 (Annexure-8) passed by the Executive• Engineer, Works Division, REO, Sahebganj whereby a sum of Rs. 33,579/- has been deducted/withheld from the petitioner's retiral dues. A further prayer has been made for directing the respondents to refund a sum of Rs. 57,444/- which, according to the petitioner, has been illegally deducted from the petitioner's payable gratuity amount. 3. The challenge to the impugned order is based on the ground that the same was passed after the retirement of the petitioner and that too without issuing any show cause notice to the petitioner or without giving any opportunity of being heard and without following the procedure laid down under Rule 43(b) of the Pension Rules. 4. Support in this regard has been taken by the petitioner from the Full Bench decision of this Court in the case of Dr. Dudh Nath Pandey vs. State of Jharkhand & Others passed in L.PA No. 714 of 2004. 5. From the admitted facts it appears that the petitioner was appointed as a Draughtsman Grade-II against the sanctioned post, where he had joined on 6.8.1973 and had eventually retired from service on 31.1.2004. 6. From the counter affidavit of the respondents, it appears that the impugned order of recovery/withholding the amount from the petitioner's retiral benefits was passed on the ground that the petitioner had drawn excess payments by practicing fraud and misrepresentation and had availed a higher scale of pay to which he was not entitled on and from the period February, 1999. 7. Learned counsel for the respondent State would want to explain• that the petitioner had manipulated in such a manner as to obtain the fixation of his pay scale of Rs. 5,000-150-8,000/- though for the post of Draughtsman Grade-II which he was holding, the applicable scale of pay was Rs. 4,000-100-6,000/-. It was also detected, that the petitioner had also obtained the approval of GPF though not related to him, on the basis of a forged letter dated 24.2.2000. 8. 5,000-150-8,000/- though for the post of Draughtsman Grade-II which he was holding, the applicable scale of pay was Rs. 4,000-100-6,000/-. It was also detected, that the petitioner had also obtained the approval of GPF though not related to him, on the basis of a forged letter dated 24.2.2000. 8. From the gist of the arguments of the learned counsel for the respondents it appears that the respondents have sought to justify• the order of withholding/recovery of the amount from the retiral dues of the petitioner on the ground that the petitioner had illegally availed excess payments than what was legally due to him, and such excess payments have been availed by him by practicing fraud and misrepresentation. 9. Notwithstanding the above statements and the. stand taken, the respondents have not denied the petitioner's contention that the order for recovery/withholding the amounts has been passed much after the date of petitioner's retirement and no proceeding as envisaged under the provisions of Rule 43(b) of the Pension Rules, was ever initiated against the petitioner. It is also not denied that no enquiry was conducted against the petitioner departmentally to arrive at any finding that the petitioner had practiced fraud and misrepresentation in availing the excess payments. 10. It is by now a settled principle of law that no recovery of any amount from the retiral benefits of the retired Government servants can be made after his retirement otherwise than in accordance with the procedure laid down under Rule 43(b) of the Pension Rules. This having not been done in the petitioner's case, the impugned order of recovery as passed by the concerned authority of the respondents cannot possibly be sustained. 11. In the light of the above facts and circumstances and the discussions made, there being merit in this writ application and the same is allowed. The concerned authorities of the respondents are directed to refund the total amount of Rs. 91,023/-, which has been recovered from the petitioner's retiral benefits, to the petitioner within two months from the date of receipt/production of a copy of this order. In the event the amount is not refunded within the period stipulated above, the same shall carry interest @ 6% per annum which shall be payable from the date after expiry of the abovementioned stipulated period, till the date of final payment. In the event the amount is not refunded within the period stipulated above, the same shall carry interest @ 6% per annum which shall be payable from the date after expiry of the abovementioned stipulated period, till the date of final payment. Let a copy of this order be given to the counsel for the respondent State.