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2015 DIGILAW 1445 (JHR)

Mauleshwari Gope v. State of Jharkhand

2015-11-20

APARESH KUMAR SINGH

body2015
JUDGMENT : By Court:- Heard learned counsel for the petitioner and the State. 2. Petitioner has retired on 31.1.1999 from the post of Junior Statistical Assistant under the Office of Chief Inspector of Factories. By the letter at Annexure-6 bearing no. 939 dated 7.9.2009, the Office of Accountant General (A&E), Jharkhand has been communicated by the respondent no.2, the Chief Inspector of Factories, Ranchi about the decision relating to sanction of his pensionary benefits. However, petitioner is aggrieved by part of it where under an amount of Rs. 92,210 has been ordered to be deducted from his pensionary dues. 3. Petitioner's case is that he was appointed on 22.12.1961 on the post of Lower Division Assistant in the office of respondent no.2, Chief Inspector of Factories, Ranchi. In the year 1968 he was posted as Statistical Clerk / Computer Clerk in the same department. Petitioner got first time bound promotion w.e.f. 1.4.1981 on completion of 10 years of service by virtue of Annexure-1, order dated 29.7.1988 and also got the benefit of second time bound promotion in the prescribed scale of pay along with few other persons w.e.f. 1.4.1987 by the Office Order No.322 of the same date i.e. 29.7.1988. There were no charges against him during his service career. The impugned order deducting his pensionary dues has been passed without any notice or show cause either. He has relied upon a judgment rendered by the Apex Court in the case of State of Punjab & others Vrs. Rafiq Masih(White Washer) & others passed in Civil Appeal No. 11527 of 2014 dated 18.12.2014 reported in 2015(4) SCC 334 in order to submit that such recovery from a retired employee, that too after 10 years of his retirement, on account of payment made due to grant of time bound promotion in the year 1987 by a conscious decision of the competent authority, cannot be effected. 4. Respondents in their counter affidavit have taken a plea that after the petitioner's appointment on 22.12.1961 on the post of L.D.C., his cadre was changed in the year 1968 as Statistical (Computer) Clerk. Reliance has been placed upon the provision contained in resolution no. 10770 dated 30.12.1981 of the Finance Department, Government of Bihar where under the recommendation of 4th Pay Revision were accepted. Reliance has been placed upon the provision contained in resolution no. 10770 dated 30.12.1981 of the Finance Department, Government of Bihar where under the recommendation of 4th Pay Revision were accepted. Respondents have taken a plea that as per the terms of the resolution dated 30.12.1981, petitioner had completed 10 years of service in the year 1978 after change in his cadre to Statistical(Computer) Clerk and had completed 25 years of service in the year 1993. However second time bound promotion was wrongly granted to him w.e.f. 1.4.1987 instead of 1993. This is the basis to recover the amount wrongly paid to him under second time bound promotion w.e.f. 1.4.1987 instead of 25.7.1993. Learned counsel for the respondent has therefore defended the impugned order of recovery from the pensionary dues of the petitioner. 5. Learned counsel for the petitioner submits that there has been no misrepresentation or fraud practiced on behalf of the petitioner in the matter of sanction of second time bound promotion in the year 1987 neither is it pleaded by the respondents. Therefore the impugned recovery is iniquitous and harsh and deserves to be quashed. 6. Having considered the aforesaid matrix of facts and submission of the parties, it is obvious that the recovery of an amount of Rs. 92,210/-from pension and gratuity of the petitioner on the ground of grant of second time bound promotion w.e.f. 1.4.1987 erroneously, at this stage is not proper rather iniquitous, harsh and arbitrary. This is also in teeth of the ratio laid down in the case of State of Punjab & others Vrs. Rafiq Masih(White Washer) & others (supra) where in Hon'ble Supreme Court has summarized few situations where recovery by the employer would be impermissible in law. The opinion of the Apex Court at Para 12 of the instant judgment is quoted herein below :- “Para 12:-It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. The opinion of the Apex Court at Para 12 of the instant judgment is quoted herein below :- “Para 12:-It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law :- (i) Recovery from employees belonging to Class-III and Class-IV service (or Group C and Group D service) (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover”. 7. Petitioner undoubtedly was a Class-III employee having retired from the post of Junior Statistical Assistant on 31.1.1999. Perusal of the order granting first and second time bound promotion shows that they were issued by the Chief Inspectors of Factories, Bihar i.e. predecessor of respondent no.2, who was the competent authority. No case of fraud or misrepresentation is made out on the part of respondents either in grant of such benefits. At this stage therefore recovery from the pensionary dues of the petitioner after 10 years of retirement and without any proceeding initiated against him or any show cause notice cannot be sustained in the eye of law. Petitioner's case is covered by the ratio laid down by the Apex Court quoted herein above, since, not only the petitioner is a retired Class-III employee but the alleged recovery is in respect of excess payment said to have been made for a period in excess of 5 years before the order of recovery. 8. Petitioner's case is covered by the ratio laid down by the Apex Court quoted herein above, since, not only the petitioner is a retired Class-III employee but the alleged recovery is in respect of excess payment said to have been made for a period in excess of 5 years before the order of recovery. 8. In that view of the matter, the impugned order, so far as it relates to recovery of an amount of Rs. 92,210/-, is accordingly quashed. Respondents should refund the deducted amount to the petitioner within a period of 8 weeks from the date of receipt of copy of this order. The writ petition is allowed in the manner and to the extent indicated herein above.