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2011 DIGILAW 1519 (RAJ)

Madan Gopal Joshi v. State of Rajasthan

2011-07-28

ALOK SHARMA

body2011
JUDGMENT 1. - In this case, the petitioner was appointed as Junior Accountant on 05.02.1970. While he was working as a Junior Accountant in the IGNP on or about 27.09.1980, he was given benefit of step up of his pay with reference to the pay of one Ratan Lal Modi, who was also working as a Junior Accountant. 2. According to the learned counsel for the petitioner thereupon based on his pay fixed in pursuance to the order dated 27.09.1980, he continued in service with the benefit thereof and retired on 31.07.2009 from the post of Junior Accountant itself. 3. Learned counsel for the petitioner submits that at the time of retirement, certain objections were pointed out by the Pension Department vide letter dated 29.06.2009, wherein, it was stated that the recovery has been made from Ratan Lal Modi due to wrong pay step up made in his favour and as the petitioner was given the benefit of pay step up with reference to Ratan Lal Modi, the order dated 27.09.1980 be cancelled and the resultant difference in the amount be accordingly recovered from the petitioner. The letter dated 29.06.2009 at the instance of the Pension Department has been annexed to the writ petition as Annexure/2. 4. The petitioner's case is that without affording any opportunity of hearing to him, the Director, Secondary Education, Govt. of Rajasthan, Bikaner complied with the directions of the Pension Department and amended the pay scales of the petitioner right from the year 1983. Consequently, the last pay of Rs. 23910/- drawn by the petitioner at the time of his retirement stood reduced to Rs. 23510/-. As a result of reducing of the pay as above, the differential amount of Rs. 71692/- was shown as paid excess to the petitioner and recovered from his gratuity amount payable to the petitioner. 5. Learned counsel for the petitioner in the course of arguments submits that he does not challenge and seek adjudication of the re-fixation of salary and pension of the petitioner. Learned counsel however submits that he is aggrieved of the recovery of Rs. 71692/- from his gratuity amount. 6. Learned counsel for the petitioner submits that in the aforesaid circumstances of recovery of Rs. Learned counsel however submits that he is aggrieved of the recovery of Rs. 71692/- from his gratuity amount. 6. Learned counsel for the petitioner submits that in the aforesaid circumstances of recovery of Rs. 71692/- without as much issuing notice to him and overlooking the time elapsed in the meantime on 25.01.2010, he sent a legal notice to the respondents and ventilated his grievance before them but to no avail. The Joint Director, Pension and Pensioner's Welfare Department, Bikaner vide letter dated 19.02.2010 in a mechanical manner replied to the petitioner's notice stating that the recovery of Rs. 71692/- has been done on the basis of recalibration of the petitioner's pay following discovery of the wrong step up of his pay in 1980. 7. The respondents have filed reply. Learned counsel for the respondents has reiterated the case that a wrong step up of pay having been given to the petitioner, the Department was entitled to recover the excess amount of pay made over to the petitioner for the last about 26 years. 8. I have heard learned counsel for the parties and perused the paper-book of this petition. 9. The fact of the matter is that the higher pay given to the petitioner as a reason of the step up of his pay in 1983 was not a consequence of any mis-representation or fraud at the instance of the petitioner. The step up of pay was consequent to step up to one Ratan Lal Modi to whom the petitioner was admittedly senior. For about 26 years, no rectification was sought to be made by the respondents. 10. It has been the consistent practice of the courts and there are legions of judgments where under, the amount over paid to the employees where the employees were not guilty of any misrepresentation or fraud has been consistently protected by the courts and the courts have directed that the money innocently over paid to the employees is not to be recovered. In the case of State of Bihar & Others v. Pandey Jagdishwar Prasad, reported in (2009) 3 SCC 117 , the Hon'ble Supreme Court has held that when higher pay is given to an employee without there being mis-representation or fraud, no recovery from the retrial dues of the employee ought to be made. 11. In the case of State of Bihar & Others v. Pandey Jagdishwar Prasad, reported in (2009) 3 SCC 117 , the Hon'ble Supreme Court has held that when higher pay is given to an employee without there being mis-representation or fraud, no recovery from the retrial dues of the employee ought to be made. 11. In this case, contrary to the enunciation of the Hon'ble Supreme Court as above, a sum of Rs. 71692/- has been recovered from the gratuity payable to the petitioner without any just cause as there is no case that the petitioner was guilty either of mis-representation or fraud. The over payment was innocently received by the petitioner in tiny amounts over years consequent to the step up of his pay. The petitioner obviously has utilised the aforesaid amount and was awaiting his retirement benefits to plan his life after superannuation. This Court in the circumstances of the case is of the view that in so far as the amount of Rs. 71692/- (which has been recovered from the gratuity payable to the petitioner) is concerned, the petitioner is entitled to succeed in this writ petition . 12. Consequently, this writ petition is disposed of with the directions to the respondents that the amount of Rs. 71692/- arbitrarily deducted from the gratuity payable to the petitioner without any opportunity of being heard ought to be refunded to the petitioner within a period of eight weeks from the date of furnishing of certified copy of this order. In the event, the amount aforesaid is not refunded to the petitioner within a period of eight weeks, the petitioner will be entitled to interest at the rate of 12% per annum thereon from the date of this order. 13. It is however made clear that the revision of the pension of the petitioner following the corrections made in the salary payable to the petitioner consequent to the letter dated 29.06.2009 shall not be affected by this order.Petition Allowed. *******