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2011 DIGILAW 345 (JK)

Chaman Lal Ganjoo v. State & anr.

2011-07-08

MANSOOR AHMAD MIR

body2011
Subject matter of the writ petition in hand is Show Notice No. DGAT/CAE-399-old/12 dated 23.1.2006, whereby respondent No. 2 has ordered to recover Rs. 10,96,387/- from the petitioner, on the grounds taken in the writ petition. Petitioner came to be appointed as Junior Assistant in Jammu & Kashmir Revenue Department in the year 1973, thereafter appeared in Combined Services Examination as a departmental candidate and made the grade. He was appointed as Accounts Officer in J&K Finance Department on 23.1.1993'on substantive basis. In the year 2004 respondents have issued Govt. Order No. 94-F of 2004 dated 6.4.2004, whereby it was ordered that petitioner shall be deemed to have retired from service with effect from 31.5.1998 while taking his date of birth as 16.5.1940, constrained him to file writ petition, bearing SWP No. 723/2004 which was admitted to hearing. It was contended that the date of birth of petitioner as recorded in the matriculation certificate and service record unambiguously is 16.5.1948. During the pendency of said writ petition, petitioner otherwise reached the age of superannuation by taking his date of birth as 16.5.1948. During the pendency of said writ petition respondents have also issued show cause notice to the petitioner, which is subject matter of present writ petition. The said notice came to be issued at the back of petitioner, without providing him opportunity of being heard. Police action was also drawn against the petitioner for the commission of offences punishable under sections 420, 467 & 468 of Ranbir Penal Code, final report was presented and matter was pending before the Court of 1st Additional Sessions Judge, Jammu. Respondents have filed counter and resisted the petition. Petitioner has also filed supplementary affidavit and brought on record copy of judgment dated 27.7.2007 passed by the 1st Additional Sessions Judge, Jammu, whereby the criminal charge and challan titled as State vs. Chaman Lal Ganjoo came to be dismissed and he came to be acquitted. Respondents have not questioned the said judgment and has attained finality. It is apt to reproduce relevant portion of the said judgment herein: ".... It was now required to be brought in the record that the 'Eight' written in figure as well as in number was not from that typewriter with which the rest of the blanks in the certificate were typed. It is apt to reproduce relevant portion of the said judgment herein: ".... It was now required to be brought in the record that the 'Eight' written in figure as well as in number was not from that typewriter with which the rest of the blanks in the certificate were typed. It is only after there is substantial proof that there is something wrong in the certificate that role of the accused could be judged. It is also required to be noticed that in the service book record the date of birth of the accused is written as 16.5.1948 in words as well as in figures. No tampering or mutilation is evident with regard to this entry. Even the prosecution witnesses of the finance department have stated so. The salary/TA statements EXPWRS-2 and EXPWRS-3 assume importance only if the basic allegation of tampering is proved against the accused which is not there. The prosecution has even remotely failed to connect the accused with the commission of offence in which the accused has been charged. Accordingly, the challan fails and the accused is acquitted of the charges framed against him. He is set at liberty and is discharged of his bail and personal bonds." Admittedly, petitioner was allowed to work while taking his date of birth as 16.5.1948 and paid salary. Thereafter Order No. 94-F of 2004 dated 6.4.2004 came to be issued providing that he would be deemed to have retired with effect from 31.5.1998. There is nothing on the file which can be made basis for holding that the petitioner has contributed in any way to allow him to continue. No doubt a case was registered against him but he stands acquitted. Thus in the given circumstances the recovery cannot be effected. The Apex Court in State of Bihar vs. Pandey Jagdishwar Prasad, (2009) 3 SCC 117 has held that it will be unfair to make recovery of salary at a later stage when he was allowed to continue in service and paid salary in terms of the date of birth recorded in the service book. It is apt to reproduce para 20 & 24 of the said judgment herein: "20. It is apt to reproduce para 20 & 24 of the said judgment herein: "20. This Court in Kailash Singh vs. State of Bihar held that recovery sought to be made from the salary of the employees on the ground of alleged over stay in service on the basis of age assessed or considered, despite the fact that the employee has worked during the period of alleged over stay could not be made. 24. Considering the fact that there was no allegation of misrepresentation or fraud, which could be attributed to the respondent and considering the fact that the appellant had allowed the respondent to work and got works done by him and paid salary, it would be unfair at this stage to deduct the said amount of salary paid to him. Accordingly, we are in agreement with the Division Bench decision that since the respondent was allowed to work and was paid salary for his work during the period of two years after his actual date of retirement without raising any objection whatsoever, no deduction could be made for that period from the retiral dues of the respondent." The Apex Court in Syed Abdul Qadir vs. State of Bihar, (2009) 3 SCC 475 has held that recovery of excess payment is generally prohibited unless misrepresentation or fraud on the part of an employee is proved. It is apt to reproduce para 57 herein. "This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous." In the given circumstances, this writ petition is allowed and the impugned Show Notice No. DGAT/CAE-399-old/12 dated 23.1.2006 issued by respondent No. 2 is quashed. SWP No. 723/2004 This writ petition has been rendered infructuous by the lapse of time. Dismissed as such along with all CMPs.