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Jharkhand High Court · body

2013 DIGILAW 666 (JHR)

Binod Kumar Singh v. State of Jharkhand

2013-06-13

N.N.TIWARI

body2013
Judgment The petitioner has prayed for quashing the order, contained in Memo no.15-21-06-1068 dated 9.4.2010, issued by the Additional Secretary to the Government, Finance Department, Jharkhand, Ranchi, whereby the Commandant J.A.P. 3, Govindpur, Dhanbad has been asked to recover the alleged excess amount paid by way of salary to the petitioner from the pensionary benefits and for quashing the letter no.15-21/06-3646 dated 30.12.2010, whereby defects have been alleged in the service book of the petitioner. The petitioner has further prayed for a direction for payment of arrears of salary for the period mentioned in paragraph-1 and advance increment, which was due in 1969-70. 2. The petitioner was appointed as Sub Inspector of Police in the year 1969. After completing Basic Police Training at P.T.C., Hazaribagh, the petitioner was posted at various places. The petitioner was promoted to the rank of Dy. S.P. on 22.08.2005. In the said rank, he was lastly posted at J.A.P.-3, Govindpur, Dhanbad. He retired from that post on 31.1.2007. 3. It has been stated that during the period of service his pay was fixed by the competent authority and approved by the Accountant General, Bihar. After his retirement, the petitioner was entitled to get post retiral benefits as well as service benefits on that basis, but the same were not paid to him for several years. Suddenly, the impugned letter dated 9.4.2010 was issued by the Additional Secretary to the Government, Finance Department, Jharkhand, Ranchi alleging that the petitioner's pay was improperly fixed and that the excess amount paid on that basis is liable to be recovered from him in lump sum. The said respondent also issued another letter dated 31.12.2010 alleging that there were certain defects in the service book of the petitioner. 4. Learned counsel for the petitioner submitted that the petitioner was paid salary on the basis of due fixation of pay made by the competent authority and approved by the Accountant General, Bihar. It has been further stated that there is no allegation that any excess amount has been drawn by the petitioner by any misrepresentation or fraud. The petitioner retired in the year 2007. In course of his long service, no such objection was ever made by the authority. When the petitioner claimed his retiral dues and service benefits, the said letter has been deliberately issued. 5. The petitioner retired in the year 2007. In course of his long service, no such objection was ever made by the authority. When the petitioner claimed his retiral dues and service benefits, the said letter has been deliberately issued. 5. Learned counsel submitted that any amount paid as salary for the duty discharged by the petitioner cannot be said to be illegally paid and any part thereof is not recoverable from the retiral benefits of the petitioner, and that too after several years of his retirement. The impugned order alleging wrong fixation and also for recovery of the alleged excess payment is wholly arbitrary and illegal. No notice was ever served on the petitioner alleging any such excess payment. 6. Learned counsel submitted that if any amount is paid before his retirement by way of salary without his mis-representation or playing fraud, the same cannot be recovered from his retiral benefits. Learned counsel for the petitioner referred to and relied on the decisions of the Supreme Court in the case of 'Sahib Ram Vrs. State of Haryana & Ors.'[1995 Supp.(1)SCC 18] and 'State of Bihar & Ors. Vrs. Pandey Jagdishwar Prasad'[2009(2)JCR 18(SC)]. 7. The writ petition has been opposed by the State-respondents. It has been stated, inter alia, that in course of verification of the pay scale of the petitioner, it was detected that his pay scale was wrongly fixed w.e.f. 1.1.1996. The petitioner was entitled to a lower scale, but he had drawn his pay at the higher scale. The excess amount paid to the petitioner has to be recovered. He has further submitted that recovery is to be made from the arrears of salary, which would accrue to the petitioner on account of grant of VI Pay Revision and ACP and not from his pensionary benefits. Since the petitioner has drawn excess amount, order of recovery of that amount is not arbitrary and contrary to law. 8. I have heard learned counsel for the parties and considered the facts and materials on record. It is not disputed that during his service period, the petitioner's pay was fixed by the competent authority and approved by the Accountant General, Bihar. It is also not disputed that no objection regarding payment of salary was ever made by the respondents during his service period. The petitioner retired long back on 31.1.2007. It is not disputed that during his service period, the petitioner's pay was fixed by the competent authority and approved by the Accountant General, Bihar. It is also not disputed that no objection regarding payment of salary was ever made by the respondents during his service period. The petitioner retired long back on 31.1.2007. The respondents have issued the impugned order dated 9.4.2010 after several years alleging that excess payment was made on the basis of wrong fixation of his pay. In the impugned order or in the counter affidavit, there is no allegation that the pay scale was fixed on any by mis-representation or fraud played by the petitioner. 9. In Sahib Ram(supra), the Hon'ble Supreme Court has held that even if higher pay scale was given to the employee by mistake, without there being mis-representation or fraud, no recovery can be made from his retiral dues. Further, in State of Jharkhand & Ors.(supra), the Hon'ble supreme Court has taken the same view and held that even if higher pay scale was given to the employee, without there being mis-representation or fraud, no recovery can be made from his retiral dues or any monetary benefit payable to the employee. 10. In view of the said settled law laid down by the Apex Court, the petitioner cannot be held liable for recovery of any amount paid to him by way of salary during his service period. 11. The impugned order, contained in Memo no.15-21-06-1068 dated 9.4.2010 is, thus, wholly unsustainable. Another letter dated 31.12.2010 alleging certain defects in the service book by the Finance Department after the petitioner's retirement is arbitrary and uncalled for. 12. Considering the above, this writ petition is allowed. The order contained in Memo no. 15-21-06-1068 dated 9.4.2010(Annexure-3) and the order issued by Memo no. 3646 dated 30.12.2010 are quashed. 13. It is made clear that the petitioner is entitled to get his retiral benefits as well as service benefits on the basis of the pay scale fixed during his service period. 14. The respondents are directed to pay the petitioner's admissible retiral dues as well as service dues, within two months from the date of receipt/production of a copy of this order.