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2011 DIGILAW 742 (JHR)

Madan Yadav v. State of Jharkhand

2011-07-28

HARISH CHANDRA MISHRA, PRAKASH TATIA

body2011
JUDGMENT 1. Heard learned Counsel for the parties. 2. The Appellant is aggrieved against the order dated 22.06.2009 passed in W.P.(S) No. 5102 of 2007 by which the writ petition of the Petitioner-Appellant has been dismissed. 3. The Appellant's pay fixation was made in the year 1998 and benefit was given to him when the Appellant was in service. The Appellant retired on 30.04.2001 then vide order dated 16/17.01.2002, an amount of Rs. 23,057/-has been deducted from the leave en-cashment amount of the Appellant. The Appellant requested for refund of the said amount but that was rejected vide order dated 11.10.2006. The Appellant's contention was that when his pay was fixed in the year 1998, could not have have been re-fixed after his retirement and challenged the action of the Respondents. 4. The learned Single Judge had agreed with the submission of the counsel for the writ Petitioner-Appellant but dismissed the writ petition only for the reason that the writ Petitioner-Appellant himself gave undertaking that he will repay the amount of excess payment, if paid to him as a result of incorrect fixation of pay or any excess pay made to him. 5. Learned Counsel for the Appellant submitted that the Appellant never misrepresented the Respondents and Respondents themselves have calculated and, thereafter, fixed the pay of the Appellant in the year 1998 and for getting the payment, the Appellant was asked to give this undertaking, which the Appellant gave. However, the Appellant was never served with any show-cause notice for re-fixation of his pay or for withdrawal of the order passed for fixation of the pay of the Appellant as back as in the year 1998 and all of a sudden the amount has been deducted. It is also submitted that because of the undertaking which was demanded for payment, the Respondents cannot pass any order in the back of the Appellant. Learned Counsel for the Appellant relied upon a number of judgments wherein it has been held that once the amount has been paid to an employee, which has been paid not because of misrepresentation and playing fraud by the employee, then after retirement such amount cannot be recovered. 6. Learned Counsel for the Appellant relied upon a number of judgments wherein it has been held that once the amount has been paid to an employee, which has been paid not because of misrepresentation and playing fraud by the employee, then after retirement such amount cannot be recovered. 6. Learned Counsel for the Respondent-State submitted that the Appellant in writing gave undertaking that he will refund the excess payment and it cannot be disputed that pay fixation made in favour of the Appellant was wrong and, therefore, the Appellant was bound to refund the excess payment made to him and relied upon the Division Bench judgment of this Court delivered in the case of Rameshwar Prasad v. Jharkhand State Electricity Board and Ors. reported in 2009 (2) JLJR 528 . 7. We are of the considered opinion that in view of the Full Bench judgment of this Court delivered in the case of Laxman Prasad Gupta v. State of Jharkhand and Ors. reported in 2007(4) JLJR 459 wherein the judgments delivered by the Supreme Court in the case of Sahib Ram v. State of Haryana reported in (1995) Supp. 1 SCC 18 and in the case of Bihar State Electricity Board v. Bijay Bhadur reported in (2000) 10 SCC 99 have been considered and wherein Hon'ble Supreme Court has held that the amount which has been paid to the employee because of the order passed in favoyr of the employee during his service period giving some benefit, cannot be taken back after retirement without setting aside and quashing of that order giving benefit to the employee. In this case admittedly the order of fixation of pay was passed in the year 1998 and that was not cancelled or withdrawn during the period of service of the Appellant, till he retired on 30.04.2001 and straightway the deduction has been made from the Appellant's leave encashment amount which cannot be justified in the light of the decision referred in the judgment of Laxman Prasad Gupta (Supra). Therefore, the order dated 22.06.2009 passed by the learned Single Judge in the writ petition being W.P.(S) No. 5102 of 2007 is set aside and the L.P.A. is allowed. The Respondents are directed to refund the amount of Rs. Therefore, the order dated 22.06.2009 passed by the learned Single Judge in the writ petition being W.P.(S) No. 5102 of 2007 is set aside and the L.P.A. is allowed. The Respondents are directed to refund the amount of Rs. 23,057/-which was deducted from the leave en-cashment amount of the writ Petitioner-Appellant to him within a period of two months from the date of receipt/production of a copy of this order. Petition allowed.