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2016 DIGILAW 141 (JHR)

Lal Babu Shaw v. State of Jharkhand

2016-01-20

APARESH KUMAR SINGH

body2016
Order : Heard learned counsel for the parties. 2. Both the petitioners raise common grievances on account of the impugned decisions passed in their cases relating to reduction in the scale of pay from higher scales given through A.C.P benefit granted earlier and recovery being made consequent thereto from their post retirement benefits. 3. Both these petitioners stood allocated to the successor State of Jharkhand pursuant to the re-organization of the parent State of Bihar under the provisions of Bihar Reorganization Act, 2000 and in terms of the orders issued by the Ministry of Personnel, Public Grievance and Pension, Government of India vide Office order no. 33 / 2007 dated 26.6.2007 (Annexure-2 to W.P.S. No. 3257 of 2015). Petitioners are at serial no. 7 and 8 in the list furnished under Annexure-2 and shown as holding the post of Inspector, Weights and Measure in the successor State of Bihar at the time of their allocation. 4. Both the petitioners got the benefits of first and second A.C.P. Petitioner, Lal Babu Shaw got the benefit of both A.C.P. vide memo no. 5191 dated 27.12.2007 issued by the Director, Agriculture, Bihar, Patna in the scale of Rs.6,500-10,500 w.e.f. 9.9.1999 and Rs.10,000-15,200 w.e.f. 5.7.2002 (Annexure-1 to W.P.S. No. 3257 of 2015). Petitioner, Shambhu Prasad got the benefits of first A.C.P. pursuant to the order bearing memo no. 1686 dated 9.6.2005 (Annexure-1 to W.P.S. No. 3783 of 2015) in the scale of Rs.6,500- 10,500 w.e.f.9.8.1999 and got the benefit of second A.C.P. in the scale of Rs.10,000- 15,200 w.e.f. 4.7.2002 pursuant to the order bearing memo no. 1688 of the same date 9.6.2005 (Annexure-2). Both of them have superannuated from the post of Inspector, Weights and Measure under the successor State of Jharkhand on 31.5.2013 and 30.11.2011 respectively. 5. In the case of Lal Babu Shaw, by the impugned order at Annexure-5 to his writ petition bearing letter no. 78 dated 29.6.2015 issued by the Assistant Director, Agriculture cum Deputy Controller, Weights and Measure, Dumka, an amount of Rs. 13,88,903/- is sought to be recovered pursuant to the reduction in the scale of pay granted earlier towards first and second A.C.P. by re-fixing it in the scale of Rs.5500-9000 and Rs.6500-10,500. 78 dated 29.6.2015 issued by the Assistant Director, Agriculture cum Deputy Controller, Weights and Measure, Dumka, an amount of Rs. 13,88,903/- is sought to be recovered pursuant to the reduction in the scale of pay granted earlier towards first and second A.C.P. by re-fixing it in the scale of Rs.5500-9000 and Rs.6500-10,500. Petitioner has been asked to deposit the said amount in lump sum so that consideration could be accorded to his claim for third M.A.C.P in the scale of Rs.9300-34,800 with grade pay of Rs.5,400/-. In the case of Shambhu Prasad, by the Special Seal Authority at Annexure -10 his pension has been reduced to Rs.13,395/- from Rs.16,140/- and a sum of Rs. 5,68,915 is being sought to be adjusted from the death cum retirement gratuity. This Special Seal Authority issued by the Senior Accounts Officer, Office of the Principal Accountant General, Jharkhand is in pursuance to the communication at Annexure-11 bearing letter no. 70 dated 28.5.2015 of the Assistant Director, Agriculture cum Deputy Controller, Weight & Measure, Hazaribag. It is also to same effect that the scale of pay upon grant of A.C.P earlier to the petitioner is being reduced to Rs. 5500-9000 and Rs.6500-10500. The communication at Annexure-11 also indicates the amount sought to be recovered towards the excess payment made earlier. 6. Both the petitioners have laid challenge to the impugned order in the respective writ petitions on the grounds that they have been issued much after their retirement and without following principles of natural justice by issuing any show cause notice or opportunity of hearing, though it entails serious adverse consequences. It is further submitted that respective scale of pay upon grant of A.C.P by the successor State of Bihar before their allocation cannot be reduced in the present State of Jharkhand and that too after their retirement, as it would amount to change in service conditions of the petitioner to their detriment, the same being in teeth of Section 73 of the Bihar Reorganization Act, 2000. It is further submitted that petitioners are in the category of Group- C employees. Under the Bihar Agriculture Service,1982 and as per the Schedule given there under, Class-I and Class-II service does not include the post of Inspector, Weights and Measure. It is further submitted that petitioners are in the category of Group- C employees. Under the Bihar Agriculture Service,1982 and as per the Schedule given there under, Class-I and Class-II service does not include the post of Inspector, Weights and Measure. Learned counsel for the petitioner submits that the Act of 1982 is applicable to the State of Jharkhand on its adoption under the provisions of Bihar Reorganization Act, 2000. There is no act framed by the State of Jharkhand nor has the Act of 1982 undergone any amendments under the present State of Jharkhand. 7. Reliance has been placed by the petitioners upon the promotional orders issued by the successor State of Bihar to such incumbents on the post of Inspector, Weights and Measure to Class-II post of Assistant Controller, Weight and Measure. Petitioners also contended that their counterpart in the successor State of Bihar have been granted the benefit of third M.A.C.P in the grade pay of Rs.7600/- while the respondents in the impugned orders as also in their counter affidavit have indicated that third M.A.C.P. would be admissible only in the grade pay of Rs.5400/-. Petitioners have also relied upon the judgment of Hon'ble Apex Court rendered in the case of State of Punjab Vrs. Rafique Masih (White Washer) reported in 2015(1)JBCJ (SC) 318 in support of the ground of challenge that such a recovery after retirement of the petitioners belonging to Class-III post and in circumstances when such payments have made over a period of 5 years is unworthy of being recovered. 8. Learned counsel for the respondent- State have contested the plea stating that under the successor State of Jharkhand, admissible scale of pay on grant of first and second A.C.P to the incumbents of the cadre of Inspector, Weight and Measure are Rs.5500-9000 and Rs.6500-10500 respectively. The impugned decision has been taken on the advice of the Finance Department also which is author of A.C.P resolution dated 14.8.2002. In fact the respondent- Finance Department has filed a separate affidavit justifying its opinion refusing the scale of A.C.P. granted to the petitioners earlier by the successor State of Bihar. Respondents have also questioned the claim of the petitioners and stated that they belong to the Grade-B service being in the grade pay of Rs.4200. Therefore, their case could not be covered by the judgment rendered in the case of State of Punjab Vrs. Respondents have also questioned the claim of the petitioners and stated that they belong to the Grade-B service being in the grade pay of Rs.4200. Therefore, their case could not be covered by the judgment rendered in the case of State of Punjab Vrs. Rafique Masih (White Washer)(supra) by the Apex Court. Learned counsel for the respondent however is not able to dispute that the impugned order have been passed after retirement of the petitioners without giving any opportunity of hearing or show cause notice, though it entails adverse civil consequence to each one of them. 9. Considering the submissions of the parties in the light of the relevant material facts pleaded, it needs to be observed that the impugned action entailing recovery of substantial amount from the petitioners after their retirement on the ground of reduction of scale of pay of A.C.P granted earlier by the successor State of Bihar before their allocation to the successor State of Jharkhand has been effected without compliance of the principles of natural justice though it entails adverse civil consequences. Petitioners have in effect being denied the opportunity to defend themselves against the proposed recovery. Petitioners who are retired persons, should have been given an opportunity to reply to enable them to take all such available grounds of facts and law to support their case before any such impugned action could have been taken. 10. In such circumstance, without expressing anything on the merit of the matter, the writ petitions are allowed by quashing the impugned orders of recovery on the grounds of violation of principles of natural justice. It would be open to the respondent-authorities to take a fresh decision in accordance with law after giving due opportunity to the petitioners. 11. The writ petitions are allowed in the manner and to the extent indicated hereinabove.