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2014 DIGILAW 1160 (JHR)

Baneshwar Kumbhkar v. State of Jharkhand

2014-11-27

APARESH KUMAR SINGH

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Order Heard learned counsel for the parties. 2. The petitioner has approached this Court for quashing of an order no. 673 dated 4th August, 2009 issued by the Director, Employment and Training (respondent no. 3), Annexure-3, whereby the benefit of A.C.P granted to the petitioner in upper scale has been cancelled and the amount paid in excess has been ordered to be recovered. The petitioner is said to have retired on 30th November, 2008 as Clerk at ITI, Dhanbad. He was appointed on the post of Lower Division Clerk on 27th March, 1971. 3. Learned counsel for the petitioner submits that the revision in the scale of A.C.P was consciously done by the Directorate vide order dated 25th August, 2008, Annexure2 to all Clerks like the petitioner i.e. in the scale of Rs. 5000-8000/ and Rs. 5500-9000/. By referring to Annexure-4, order dated 22nd April, 2010 again by the Director, Employment and Training, Jharkhand, it is stated that the grant of the aforesaid scale in the case of the petitioner was specifically confirmed by the said office in view of the Resolution no. 1038 dated 26th May, 2005 of the Finance Department. Therefore, according to the petitioner, the order impugned issued without show cause or notice after his retirement, is violative of principle of natural justice. 4. The respondents have appeared and filed their counter affidavit. Learned counsel for the respondent submits that the grant of A.C.P made in the scale of Rs. 5000-8000/ and Rs. 5500-9000 was within the stipulation that if any irregularities are found in the same it would be cancelled and the amount paid in excess could be recovered. It has been submitted by the respondent that he was wrongly provided the aforesaid scale as he was entitled for the scale of Rs. 45007000/ and Rs. 50008000/ at the time of grant of 1st and 2nd A.C.P. It has been stated further that the petitioner has wrongly interpreted the resolution dated 21st September, 2007 and that scale of pay of Head Clerks in Muffasil Establishment was fixed at Rs. 5000-8000/, whereas there was no post of Head Clerk in the Directorate of Employment and Training. Therefore, on the advise of the Finance Department, the amount paid in excess has been ordered to be recovered after reducing the scales, which were granted to the petitioner erroneously in the higher scale. 5000-8000/, whereas there was no post of Head Clerk in the Directorate of Employment and Training. Therefore, on the advise of the Finance Department, the amount paid in excess has been ordered to be recovered after reducing the scales, which were granted to the petitioner erroneously in the higher scale. It has further been stated that the petitioner has wrongly interpreted the resolution no. 1117 dated 3rd June, 2011 and the grade pay of Rs. 4000 is admissible to those employees who were appointed initially in the scale of Rs. 5000-8000/ and were given the scale of Rs. 6500-10500/ on grant of A.C.P. Based upon these contentions and the documents including the resolution dated 14th August, 2002, the respondents have stated that there is no infirmity in the impugned order. 5. Having considered the rival submissions of the parties and the materials on record, the noticeable features, which are evident in the present case are that the order impugned dated 4th August, 2009 issued by the respondent no. 3, (Annexure3), canceling the scale of pay upon grant of A.C.P has been done without show cause notice to the petitioner after his retirement. It further appears that after issuance of the impugned order dated 4th August, 2009 by the Director, Employment and Training, Jharkhand, there is an order of confirmation of the same scale by the same officer vide Annexure4 making reference to the resolution of the Finance Department dated 26th May, 2005. Specific averments made in respect of Annexure4 office order dated 22nd April, 2010 i.e. the order of confirmation at para 12 of the writ petition have not been denied by the respondents in their counter affidavit. As per statement made at para 19, it has only been stated that it is a matter of record and therefore required no comment. It therefore appears that the impugned action of the respondents are not only violative of principle of natural justice but are contrary to the orders passed by the Director, Employment and Training, Respondent no. 3 himself later on vide Annexure4 dated 22nd April, 2010 whereunder the grant of such scale was confirmed . 6. In such circumstances, the petitioner is justified in seeking quashing of the impugned order dated 4th August, 2009, Annexure3 issued by the respondent no. 3 himself later on vide Annexure4 dated 22nd April, 2010 whereunder the grant of such scale was confirmed . 6. In such circumstances, the petitioner is justified in seeking quashing of the impugned order dated 4th August, 2009, Annexure3 issued by the respondent no. 3, Director, Employment and Training, Department of Labour, Ranchi, whereunder the grant of benefit of A.C.P on the said scale i.e. 5000-8000/ and 5500-9000/ have been cancelled and the amount paid in excess has been ordered to be recovered. Hence, the impugned order is quashed. However, it is open to the respondent to take a fresh decision in the matter after due notice and opportunity of hearing to the petitioner in accordance with law. 7. Accordingly, the writ petition is allowed in the manner and to the extent as indicated hereinabove.