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2017 DIGILAW 1750 (JHR)

Damu Ram Kerai v. State of Jharkhand

2017-10-09

S.N.PATHAK

body2017
ORDER : 1. The petitioners have approached this Hon'ble Court with the following prayers: (i). For quashing the office order as contained in letter no. 1327 dated 22.5.2017 issued under the signature of the respondents whereby and where under an order of recovery amounting to Rs. 2,78,809 and Rs. 8,06,499/- has been passed against the petitioners on account of audit objection for the period from June, 1992 to March, 2012 in gross violation of principles of natural justice and the due process of law. (ii). Further prayer has been made that pending final adjudication of the instant writ application, the effect, operation and implementation of the impugned letter no. 1327 dated 22.5.2017 issued under the signature of the respondents be kept in abeyance. Factual Matrix 2. The factual matrix as has been delineated in this writ petition is that the petitioner No. 1 was appointed on 23.3.1983 on the post of Science Teacher in Middle School, Sialgora and petitioner No.2 was appointed on 4.4.1983 vide Memo No. 1151 dated 8.3.1983, issued under the signature of District Superintendent of Education, Singhbhum, Chaibasa. At the time of their appointment the petitioners were Bachelor of Science and had already acquired their teachers' training as in service candidates. The petitioners acquired their teachers training certificate from Primary Teachers Training College, Bundu and Regional College, Bhubaneswar respectively. 3. It is the case of the petitioners that after being appointed they were rendering satisfactory service. The petitioner No. 1 is now posted at Balika Middle School, Jagarnathpur, whereas petitioner No. 2 is posted at Middle School, Sharda at Khuntpani Block, Chaibasa. The petitioners were granted the scale of Rs. 1640-2900 by the order of District Superintendent of Education, Chaibasa and accordingly their pay was fixed in the aforesaid scale of pay. The petitioners were granted the Graduate Trained Scale of pay in the scale of Rs. 1640-2900 vide Memo Nos. 13250 dated 15.12.1992 and 9154 dated 9.9.1992. 4. It is the further case of the petitioners that the respondents have also fixed the pay of the petitioners in the revised pay scale of Rs. 5500-9000 which is the replacement pay scale of Rs, 1640-2900 w.e.f. 1.1.1996. However, the petitioners were denied the senior scale of pay i.e. in the scale of Rs. 4. It is the further case of the petitioners that the respondents have also fixed the pay of the petitioners in the revised pay scale of Rs. 5500-9000 which is the replacement pay scale of Rs, 1640-2900 w.e.f. 1.1.1996. However, the petitioners were denied the senior scale of pay i.e. in the scale of Rs. 6500-200-10500 after 12 years of service in basic grade for which teachers similarly situated to that of petitioners moved before the Hon'ble Jharkhand High Court and the Hon'ble Court was pleased to direct the respondents to consider the claim of the petitioners and pursuant thereto petitioners were granted the senior grade of pay vide Memo No. 2587 dated 5.11.2007. 5. It is the further case of the petitioner that in the pay revision of 2006 effective from 1.1.2006 the scale of the petitioners have been fixed in the pay scale of Rs. 9,300-34,800/- with grade pay of Rs.4,800/- in Pay Band-II. 6. Learned Counsel for the petitioner strenuously urges that the action of the respondents basing on the audit objection in directing the recovery from the pay of the petitioners sans legal permissibility on the ground that the scale of pay which have been paid to the petitioners for decades are being sought to be unilaterally disturbed by the respondents on the ground of audit objection. Even otherwise, under the common rule governing monetary issues, no recovery process is permissible after lapse of 3 years. Learned Counsel for the petitioners further submits that relevant scale of pay' drawn by the petitioners was approved by the competent authorities and there is no element of fraud or misrepresentation on the part of the petitioners. Learned' Counsel for the petitioners further submits that the law laid down by this Court in the case of Arbind Bhushan Dey and Others vs. State of Jharkhand & Ors. and analogous cases reported in 2009(1) JCR 513 [ : 2009(1) JLJR 338 ] is squarely applicable in the case of the petitioners wherein it has been held that on acquisition of qualification of training, the person would be entitled to draw the trained scale. Learned Counsel for the petitioners further submits that the recovery which has been sought for to be made on the audit objection cannot be legally permissible without adhering due process of law. Learned Counsel for the petitioners further submits that the recovery which has been sought for to be made on the audit objection cannot be legally permissible without adhering due process of law. In this respect, learned Counsel for the petitioner has referred to the decision reported in (2003) 11 SCC 465 at paragraph no. 18, (2009)3 SCC 475 at paragraph nos. 58, 59 & 60 (2006)9 SCC 630 and reported in (2015)4 SCC 334 [: 2015(1) JLJR (SC)323] in the case of State of Punjab and Others vs. Rafiq Masih (White Washer) and Others. 7. Learned Counsel for the petitioner further submits that the issue relating to pay scale on acquisition of requisite qualification has already been settled in C.W.J.C. No. 2115 of 2001 in the case of Birendra Kumar Sinha and Others vs. The State of Jharkhand and Others, which has been approved in L.P.A. No. 33 of 2012 and the principle of equal pay for equal 'work has been decided in the case of Arbind Bhushan Dey and Others vs. The State of Jharkhand and Others, reported in 2009(1) JLJR 338 . But the respondents by unilateral decision have directed for recovery from the pay of the petitioner basing on the audit objection which is neither conclusive nor sacrosanct, therefore, the action of the respondents is contrary to the aforesaid principle of law. 8. Learned Counsel for the petitioner further submits that the decision of the respondents by reducing the pay-scale of petitioners from B.Sc. trained to Matric trained amounts to reduction in rank and. against the rules and regulation of the department. Learned Counsel for the petitioner further submits that the impugned order of rec0very is in the teeth of ratio laid down by the Hon'ble Apex Court in catena of decisions. learned Counsel for the petitioner further submits that the impugned order is in flagrant violation of the principle of natural justice. learned Counsel further submits that the issue has been decided by this Court in W.P.(S) No. 5134 of 2001, Reported in 2013(3) JLJR 127 . which has been confirmed by L.PA No. 142 of 2014, Reported in 2015(2) JLJR 552 . wherein the recovery order in pursuance to reduction has been quashed by this Court and the said decision is squarely applicable to the case of petitioners. The similar issue has also been decided by this Hon'ble Court in W.P.(S). which has been confirmed by L.PA No. 142 of 2014, Reported in 2015(2) JLJR 552 . wherein the recovery order in pursuance to reduction has been quashed by this Court and the said decision is squarely applicable to the case of petitioners. The similar issue has also been decided by this Hon'ble Court in W.P.(S). No. 1631 of 2016, Reported in 2017(1) JLJR 424 . and other analogous cases vide judgment dated 13.12.2016. learned Counsel for the petitioners further submits that the action of the respondents In directing recovery from the pay of the petitioners basing on the audit report is in contrary to decision as reported in 2009(1) JCR 513 (Jhr.) [ : 2009(1) JLJR 338 ]. 9. As no counter-affidavit has been filed on behalf of respondents, learned counsel for the respondents submits that he is not in a position to state anything about the impugned order. However, learned counsel very fairly submits that he has no objection if this writ application is disposed of in view of judgment dated 13.12.2016 passed in W.P.(S). No. 1631 of 2016, Reported in 2017(1) JLJR 424 . and other analogous cases. 10. Having heard submissions of the parties and having given anxious consideration to the facts and circumstances of the case and the documents on record, I am of the considered view that the petitioners in the aforesaid writ application have made out foundational facts to warrant interference by this Court due to the following facts and reasons:- (I) The petitioners were initially appointed as Science Teachers. At the time of their initial appointment the petitioners were Bachelor of Science and had already acquired their teacher's training certificate as in-service candidates from Primary Teachers Training College, Bundu and Regional College, Bhubaneswar respectively. In pursuance to acquisition of their training, they were granted trained scale. Subsequently, they were granted 5th and 6th pay revision. By virtue of completion of 12 years, petitioners were also granted senior scale of pay. But to the utter surprise and consternation the respondents basing on the audit objection report have directed in the impugned orders for recovery of substantial amounts from the pay of the petitioners that too without any notice or show cause which have been impugned in this writ application. (II) The petitioners have worked for several years. But to the utter surprise and consternation the respondents basing on the audit objection report have directed in the impugned orders for recovery of substantial amounts from the pay of the petitioners that too without any notice or show cause which have been impugned in this writ application. (II) The petitioners have worked for several years. During the period of their service, the petitioners served honestly, diligently to the best satisfaction of the respondents and no show cause has been issued to the petitioners for any misconduct or unblemished. In the case of Arbind Shushan Dev & Ors. VS. State of Jharkhand & Ors. reported in 2009(1) JLJR 338 and batch of cases reported in 2009(1) JCR 513 (Jhr.) where it has been held inter alia that the 1993 Rules cannot be said to be retrospective in nature in order to defeat the vested right of a person and the trained scale is an admissible from the date of acquisition of teachers training. In the case in hand, the petitioners having granted trained scale from the date of acquisition of teachers training, therefore, there is absolutely no infirmity in grant of trained scale to the petitioners from the date of acquisition of teachers training. Moreover, the unilateral and ex parte order basing on the audit objection to recover the substantial amount from the pay of the petitioners sans legal permissibility. Moreover, particularly when there is no misrepresentation nor there is element fraud played by the petitioners for getting the trained scales of pay. It appears from the facts of the aforesaid case that the benefit of the trained scale has been granted to the petitioners more than two decades back. In the meantime, the decision rendered by the Full Bench of this Court in Smt. Normi Topno vs. The State of Jharkhand & Ors., reported in 2007(4) JLJR 466 is subsequently applicable to the case of the petitioner also. In the aforesaid decision, it has been held by the Full Bench of this Court that once the monetary benefits is already paid to the employee and there is no allegation of misrepresentation or fraud, the amount cannot be recovered. Similar view has been taken by this Court in case of Amar Nath Singh vs. State of Bihar and Others, reported in 2004(2) JCR 342 (Jhr.) [ : 2004(4) JLJR 439 ]. Similar view has been taken by this Court in case of Amar Nath Singh vs. State of Bihar and Others, reported in 2004(2) JCR 342 (Jhr.) [ : 2004(4) JLJR 439 ]. Recently, the Hon'ble Apex Court reported in (2015)4 SCC 334 [: 2015(1) JLJR (SC)323] in the case of State of Punjab and Others vs. Rafiq Masih (white washer) and Others relying on various judgment including judgment rendered in the case of Chandi Prasad Uniyal and Others vs. State of Uttarakhand and Others reported in (2012)8 SCC 417 [: 2012(4) JLJR (SC)93] has been pleased to hold in paragraph 18 of Rafiq Masih (white washer) case (supra) as under:- "18. It is not possible to postulate all situations of hardship which would govern employee 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 hereinabove, we, may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:- (i) Recovery from the employees belonging to Class-III and Class-IV service (or Group-C and Group-D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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." 11. In view of the reasons stated in foregoing paragraphs and as cumulative effect of the aforesaid reasons and judicial pronouncements and as a logical sequitur to the aforesaid reasons the impugned order is quashed and set aside and resultantly, the writ petition stands allowed.