Research › Search › Judgment

Jharkhand High Court · body

2011 DIGILAW 897 (JHR)

Mahendra Singh v. State of Jharkhand

2011-09-19

P.P.BHATT, PRAKASH TATIA

body2011
Order By Court.- Heard learned counsel for the parties 2. According to the writ petitioner, originally his grievance was that he was not given first time bound promotion with effect from 23.11.1977 and Second time bound promotion with effect from 23.11.1989 and consequential monetary benefits due to such promotion. Petitioner/appellant has also prayed that Rs. 8825/- has been wrongly recovered from him and, therefore, respondents may be directed to refund the said amount. 3. It appears from the impugned order dated 07.05.2009 passed in W.P.(S) No. 3224/08 that so far as first time bound promotion with effect from 23.11.1977 and Second time bound promotion with effect from 23.11.1989 are concerned, they were redressed. So far as petitioner's claim for refund of Rs. 8925/- and consequential pensioner benefits are concerned, the same have been rejected by the impugned order dated 07.05.2009 on the ground that a mistake was detected by the Office of the Accountant General and it was found that mistake was committed in fixation of salary of the writ petitioner/appellant and therefore, he was called upon to refund the amount of Rs. 8925/-. 4. According to the respondents, petitioner voluntarily refunded that excess amount and therefore the writ petitioner /appellant could not have raised any grievance on this count. Argument of the respondent prevailed and the writ petition of the petitioner was dismissed. Hence, this L.P.A. has been preferred. 5. Learned counsel for the writ petitioner submitted that respondents themselves have passed appropriated order of fixation of salary of the writ petitioner and thereafter, petitioner retired in the month of January, 2002. Petitioner's pension was due and therefore, he was under compulsion to refund the amount of Rs. 8925/- and he paid the said amount so as to get the renaming amount of his other benefits running in lacs of rupees. 6. Learned counsel for the petitioner submitted that neither petitioner committed any wrong or fraud upon the respondents to get the fixation of his salary nor petitioner was ever given any show cause notice and opportunity of hearing before alleging that the petitioner's salary was wrongly fixed and no order to withdraw the fixation of salary of the petitioner was ever passed by the respondents and straightway, on the basis of the objection raised by the office of the Accountant General, not only that amount of Rs. 8,925/- has been recovered, but consequently his pension has also been reduced. 7. Learned counsel for the State submitted that the petitioner was given wrong pay fixation and this fact was detected by the office of the Accountant General and this mistake cannot be disputed by the writ petitioner-appellant. 8. Learned counsel for the Accountant General submitted that it is the obligation of the State to give the complete Service Book of the employee to the office of the Accountant General 18 months prior to retirement of the employee. However, the Accountant General's office received the Service Book of the petitioner after his retirement. Therefore, before the retirement of the writ petitioner-appellant, the Accountant General's office could not examine the case of the writ petitioner for grant of retrial benefits. Immediately, when mistake was detected by the office of the Accountant General, it was communicated to the State and the employer consequently raised the demand of above said amount and in consequence thereof, the pension amount has been reduced that was a natural consequence. 9. Learned counsel for the Accountant General submitted that Hon'ble Supreme Court, in the case of Union of India Vs. S.R. Dhingra and Others, reported in (2008) 2 SCC 229 clearly held that correction of clerical mistake can be made and pension initially calculated by calculating average emoluments which included running allowances but subsequently a clarification dated 29.12.1999 was issued by the Railway Board stating that running allowances was not to be taken into consideration, then in that situation, revision of pension on account of mistaken calculation of pension is permissible. 10. Learned counsel for the Accountant General also relied upon another Division Bench judgement of this Court delivered in the case of Ram Chandra Singh Vs. State of Jharkhand & Others reported in 2005(2) JLJR 705 wherein also Hon'ble Supreme Court judgement delivered in the case of Sahib Ram Vs. State of Haryana and others reported in 1995 Suppl (1) SCC 18 was distinguished and it was held that the mistakes in such matter can be corrected. 11.Learned counsel for the Accountant General further relied upon Division Bench judgment of this Court delivered in the case of Rameshwar Prasad Vs. Jharkhand State Electricity Board & others reported in 2009 (3) JCR 207 wherein, taking the same view, revision of pension was upheld. 12. 11.Learned counsel for the Accountant General further relied upon Division Bench judgment of this Court delivered in the case of Rameshwar Prasad Vs. Jharkhand State Electricity Board & others reported in 2009 (3) JCR 207 wherein, taking the same view, revision of pension was upheld. 12. Learned counsel for the Accountant General then further relied upon yet another judgement of the Supreme Court delivered in the case of I.C.A.R. & another Vs. T.K.Suryanarayan & Ors. reported in 1997 (7) Supreme 635 . 13. We have considered the submissions of the learned counsel for the parties and also perused the judgements cited by learned counsel referred above. 14. A bare perusal of all the judgements reveals that in none of the cases the issue was there that an order was passed for pay fixation by the employer during the service tenure of the employee and thereafter the employee was made to retire on the basis of the pay which he was getting when he was in service. In none of the cases issue was available that any order to rectify the mistake was not passed by any competent authority i.e., the employer and yet the revision in pay after retirement of employee is sought and pension has been effected. Here in this case, admittedly the petitioner retired on 31.01.2002 and got the last pay according to a particular amount. The petitioner, therefore, was entitled to pension to be calculated according to his last paid salary. If the petitioner's pay was wrongly fixed, then that could have been corrected by passing appropriate order after giving opportunity of hearing to the writ petitioner and that also could have been done during the service period. The petitioner's pay, fixed long back when he was in service, could not have been altered after his retirement merely on account of the objection raised by the office of the Accountant General and that too, without giving any show cause notice and opportunity of hearing to the petitioner and in this case it is admitted case that even after communication from the office of the Accountant General, no order has been passed to withdraw the revision of pay or pay fixation of the writ petitioner and, therefore, in view of the objection of the office of the Accountant General only, the order of pay fixation/salary fixation of the writ petitioner cannot be nullified. 15. 15. In view of the above, the respondents could not have ordered for recovery of the amount of Rs. 8,925/- which has been recovered from the petitioner after his retirement and that too without passing any order of withdrawal, the order of salary fixation/pay fixation. 16. Therefore, the L.P.A. is allowed. The order of recovery of Rs. 8,925/- from the petitioner is quashed and set aside. The respondents are directed to refund the said amount to the writ petitioner-appellant with interest @ 9% per annum from the date when it was deposited with the respondents. The respondents are further directed to make appropriate re-calculation of pension of the writ petitioner-appellant and pay the arrears to the writ petitioner in accordance with Rules as well as shall pay the pension according to such calculation for future. All actions required to be taken by the respondents, be completed within a period of two months from today.