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2012 DIGILAW 938 (JHR)

Dukhan Gope v. State of Jharkhand

2012-07-05

D.N.PATEL

body2012
JUDGMENT D.N.Patel, J. 1. Learned counsel for the petitioner submitted that without giving any show cause notice, salary of the petitioner for the period, running from st July, 2002 till 31st December, 2008 has been ordered to be recovered by the order of the Circle Officer, Bermo vide his order dated th March, 2010, which is at Annexure 1 to the memo of petition and which is under challenge in this writ petition. 2. Learned counsel for the petitioner submitted that the service book is maintained and preserved by the respondents and for no fault of the petitioner, he was continued in service up to 31st December, 2008. The petitioner was paid salary also and abruptly without giving any show cause notice and without providing any opportunity of being heard to the petitioner, on 16th March, 2010 an order has been passed for depositing the salary for the period, running from 1st July, 2002 till 31st December, 2008. 3. It is further submitted by the learned counsel for the petitioner that as per the counter affidavit, filed by the respondents, allegation has been levelled that the petitioner has acted in collusion with one Record Keeper, but, no action has been taken against the so called Record Keeper for the allegation, which is levelled in the counter affidavit. Neither any show cause notice has been given nor any inquiry report has been given nor any opportunity of being heard has been given to the petitioner, before passing the impugned order. 4. It is further submitted by the learned counsel for the petitioner that the reasons, which are not stated in the impugned order, cannot be given in the counter affidavit and has relied upon the decision, rendered by Hon'ble Supreme Court in the case of Mohinder Singh Gill and anr. v. The Chief Election Commissioner, New Delhi and ors., as reported in (1978) 1 SCC 405 . 5. Learned counsel for the petitioner submits that in view of the aforesaid decision also, the reasons, which are given in the counter affidavit, cannot support the impugned order (Annexure 1). 6. v. The Chief Election Commissioner, New Delhi and ors., as reported in (1978) 1 SCC 405 . 5. Learned counsel for the petitioner submits that in view of the aforesaid decision also, the reasons, which are given in the counter affidavit, cannot support the impugned order (Annexure 1). 6. It is vehemently submitted by the learned counsel for the respondents that the respondents have filed a detailed counter affidavit and it has been stated in the counter affidavit that the petitioner was acting in collusion with one Record Keeper and, therefore, he continued in service even after his retirement and worked up to 31st December, 2008. In fact, the petitioner's correct date of retirement is 30th June, 2002, but, he continued in service up to 31st December, 2008. Learned counsel for the respondents has further vehemently submitted that there is an allegation of fraud against the present petitioner and it has been stated in paragraph no.13 of the memo of counter affidavit that the inquiry is going on and, therefore, the impugned order at Annexure 1 has been issued for depositing the salary, which the petitioner has taken for the period, running from 1st July, 2002 to 31st December, 2008. 7. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the order, passed by the Circle Officer, Bermo, dated 16th March, 2010, which is at Annexure 1 to the memo of petition, mainly for the following facts and reasons: (i) The present petitioner was working as Chowkidar with the respondents, whose service was prepared, maintained and preserved by the respondents. Never any copy of the service book has been supplied to the petitioner; (ii) The petitioner, who is a very low ranking employee of the Government, continued in service up to 31st December, 2008 and was paid salary up to 31st December, 2008. Several high ranking officers and employees are there, who have prepared the salary bill of the petitioner and have sanctioned the same. (iii) It further appears from the facts of the case that never any show cause notice was given to the petitioner nor any opportunity of being hearing was given before passing the impugned order at Annexure 1 to the memo of petition. (iii) It further appears from the facts of the case that never any show cause notice was given to the petitioner nor any opportunity of being hearing was given before passing the impugned order at Annexure 1 to the memo of petition. By the impugned order, petitioner has been directed to deposit the salary for the period, running from 1st July, 2002 3. till 31st December, 2008. The respondent authorities ought to have kept in mind that before passing such type of order for recovery of sizable amount, which has already been paid before approximately two years, at least a show cause notice ought to have been given to the petitioner. In the facts of the present case, no show cause notice was ever given to the petitioner and, therefore, there is violation of the principles of natural justice. (iv) Learned counsel for the respondents has vehemently submitted that as per paragraph no.13 of the counter affidavit, the petitioner has acted in collusion with one Record Keeper and, therefore, he continued in service up to 31st December, 2008 for which inquiry is still going on. This also cannot be the reason for passing the impugned order at Annexure 1 to the memo of petition, because the reasons which are not giving in the impugned order cannot be appreciated later on, which are referred to in the counter affidavit. No reasons can be supplied later on, which are never referred in the impugned order, otherwise all non-speaking orders will be converted into a valid and speaking orders by efflux of time. It has been held by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and anr. v. The Chief Election Commissioner, New Delhi and ors., as reported in (1978) 1 SCC 405 , especially at paragraph 8, as under: “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji : Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.” (Emphasis supplied) In view of the aforesaid decision also, no reasons can be supplied by the State authorities to a non-speaking order by virtue of a counter affidavit. Looking to the impugned order at Annexure 1 to the memo of petition, it appears that it is absolutely a non-speaking order, since no reasons have been assigned for passing the order of recovery of sizable amount of salary for the period, running from 1st July, 2002 to 31st December, 2008. (v) So far the issue relating to recovery is concerned, it has been held by the Hon'ble Patna High Court in the case of Most. Kanti Devi & Ors. v. The State of Bihar & Ors., as reported in 2003 (1) PLJR 9 , especially at paragraphs 4 and 5, as under: “4. Rightly or wrongly, the petitioner Sridhar Pandey was permitted to work and draw his salary. The period of which he worked he will be entitled to the emoluments. If he was given work as a result of any collusion between the officials it is upto the State Government to take action against the officer concerned, who permitted this extension of service beyond retirement. On record, there is nothing against the petitioner that he may have committed any misrepresentation or fraud so as to extract from the period of retirement. 5. In the circumstances, there is no occasion for the recovery of the amount which was paid to the petitioner for having worked but after the period of retirement. On record, there is nothing against the petitioner that he may have committed any misrepresentation or fraud so as to extract from the period of retirement. 5. In the circumstances, there is no occasion for the recovery of the amount which was paid to the petitioner for having worked but after the period of retirement. In so far as the pension is concerned, the heirs of Sridhar Pandey will be entitled to any arrears of pension and consequential family pension.” (Emphasis supplied) It has further been held by this Court in the case of Balkeshwar v. M/s Central Coalfields Ltd. and another, as reported in 2001 (1) JCR 175 , especially at paragraphs 4 and 10, as under: “4. The respondents in their counter affidavit have accepted that the petitioner retired under V.R. Scheme w.e.f. 20th August, 1999. However, plea has been taken that the date of birth was recorded as 26th October, 1941 and the date of appointment was 23rd November, 1958. On the basis of date of appointment, the petitioner having found to have worked for 42 years 11 months and 3 days and as no person can work more than 42 years, the excess payment made has been adjusted from the retiral benefits. 10. In the circumstances, the respondents cannot deduct any amount or adjust from the salary of the petitioner on the ground that he has worked for more than 11 (eleven) months beyond the period of retirement.” (Emphasis supplied) It has also been held by the Hon'ble Apex Court in the case of Sahib Ram v. The State of Haryana & ors., as reported in 1994(5) SLR 753, at paragraphs 5, as under: “5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of higher payscale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. However, it is not on account of any misrepresentation made by the appellant that the benefit of higher payscale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.” (Emphasis supplied) It has been held by this Court in the case of Laxman Prasad Gupta v. The State of Jharkhand & ors., as reported in 2008(3) JCR 655 (FB), at paragraph no. 20, as under: “20. In view of the above discussion, we come to the following conclusion. To sum up: “In the light of the absence of any material to show that the excess amount was received by the petitioner on misrepresentation, collusion, fraud or negligence, the said excess amount cannot be recovered out of the retiral dues, after retirement, without following the procedure contemplated under Rule 43(b) of the Bihar Pension Rules. In this case the said procedure, which is mandatory, has not been followed. Therefore, the action of the respondents for recovery of the amount from the retiral dues is not valid in law.” (Emphasis supplied) It has further been held by this Court in the case of Janardan Prasad Saha & Anr. v. State of Jharkhand & Ors., as reported in 2008 (4) JCR 142 , at paragraphs 2 and 4, as under: “2. Learned counsel for the petitioners submitted that the order for revision of the petitioners' pay was issued by the respondents Bank and there was no representation/ misrepresentation or fraud played by the petitioners for obtaining the said revised scale. The said amount, which was paid to the petitioners by the Bank towards the arrears of salary on the basis of the revision of the pay scale, cannot be recovered/adjusted from the retiral benefits of the petitioners. There is complete bar for such adjustments. The petitioners are not liable to refund the aid amount, even if subsequently the order of revision of pay was cancelled. There is complete bar for such adjustments. The petitioners are not liable to refund the aid amount, even if subsequently the order of revision of pay was cancelled. Learned counsel placed reliance on a decision of the Supreme Court rendered in Sahib Ram v. The State of Haryana and others, 1994 (5) SLR 753 and a Full Bench decision of this Court in Laxman Prasad Gupta v. The State of Jharkhand and others W.P. (S) No. 3793/2004 reported in 2008 (3) JCR 655 (FB): JLJR 2007 (4) 459. 4. I have heard learned counsel for the parties and considered the facts and materials on record as also the judicial pronouncements. In Sahib Ram case (supra), the Supreme Court has specifically held that any amount paid to an employee without his misrepresentation cannot be recovered. In Laxman Prasad Gupta case (supra), a Full Bench of this Court has held that after retirement, there is no relationship of employer and employee between the parties and the recovery out of the retiral dues cannot be made, except by following the due procedure established by law. No contrary rule or decision has been produced on behalf of the respondents.” (Emphasis supplied) It has been held by this Court in the case of Ramchandra Singh v. State of Jharkhand & Ors., as reported in 2009 (3) JCR 455, in paragraphs 7 and 8, as under: “7. The aforesaid letter has been issued on 4.6.2007 i.e. after five years of retirement of the petitioner and the law in this regard is well settled. The Full Bench of this Hon’ble Court in 2007(4) JLJR page 459 (Laxman Prasad Gupta vs. The State of Jharkhand & Ors.) at paragraph 20 held as under: “20. In view of the above discussion, we come to the following conclusion. To sum up:“In the light of the absence of any material to show that the excess amount was received by the petitioner on misrepresentation, collusion, fraud or negligence, the said excess amount cannot be recovered out of the retiral dues, after retirement, without following the procedure contemplated under Rule 43(b) of the Bihar Pension Rules. In this case the said procedure, which is mandatory, has not been followed. Therefore, the action of the respondents for recovery of the amount from the retiral dues is not valid in law.” 8. In this case the said procedure, which is mandatory, has not been followed. Therefore, the action of the respondents for recovery of the amount from the retiral dues is not valid in law.” 8. Considering the aforesaid facts and circumstance of the case the respondents are directed not to recover any amount in excess already paid and if already recovered the same shall be refunded to the petitioner. The respondents are further directed to compute the arrears based on the revised pay scale as admitted in their own counteraffidavit and also revise the pension accordingly.” (Emphasis supplied) Moreover, it has been held by the Hon’ble Supreme Court in the case of Sahib Ram Vs. State of Haryana & Others, as reported in 1995 Supp (1) SCC 18, especially at paragraph 5, as under: “5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant.......” (Emphasis supplied) It has been held by the Hon'ble Supreme Court in case of Shyam Babu Verma & others Vs Union of India & others, as reported in (1994) 2 SCC 521 , especially at paragraph no. 11, as under: “11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330560 but as they have received the scale of Rs 330560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.” (Emphasis supplied) 8. In view of the aforesaid facts, reasons and judicial pronouncements, I hereby quash and set aside the impugned order, passed by the Circle Officer, Bermo, dated 16th March, 2010, which is at Annexure 1 to the memo of petition. If any amount has already been recovered by virtue of the order at Annexure 1 to the memo of petition, I hereby direct the State to refund such amount to the petitioner within a period of four weeks from the date of receipt of a copy of the order of this Court. 9. This writ petition is, accordingly, allowed with a cost of Rs.1,000/-, which will also be given by the respondents to the petitioner within a period of four weeks from the date of receipt of a copy of the order of this Court.