Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 2133 (JHR)

Kailash Nath Singh v. State of Jharkhand

2017-12-11

PRAMATH PATNAIK

body2017
ORDER : 1. In the instant writ application, the petitioner has inter-alia prayed for quashing the letter dated 08.05.2012 issued by the respondent No. 3, whereby the order of recovery has been passed from the retiral benefits of the petitioner and further prayer has been made by the petitioner for direction to the respondents to release the entire retiral benefits i.e. G.P.F. Leave Encashment L.I.C. Gratuity and also for fixation of Pension. The petitioner has also prayed for direction upon the respondents for the payment of retiral dues with interest at the rate of 18% per annum and the petitioner has further prayed for quashing the order passed by Executive Engineer dated 31.07.2013 whereby the recovery from the provisional pension provisional gratuity, leave encashment etc. has been made. 2. The brief facts, as disclosed in the writ application, is that the petitioner was appointed on the post of Peon as Class-IV posts. While continuing as such vide Annexure-1 dated 04.05.2012, the petitioner was asked to file his reply to the allegation of interpolation in the service book with threat of lodging of FIR. The petitioner submitted his explanation as per Annexure-2 to the writ application. Thereafter, the petitioner retired from service with retrospective effect from 31.01.2009 vide order dated 08.05.2012 and a direction for recovery of the excess amount from his retiral benefits which is impugned in this writ application. Thereafter, the petitioner submitted his representation for payment of post retiral benefits. The respondent No. 3 sought for clarification from the Superintending Engineer as to part of guidance for adopting procedure for recovery of overpayment made to the petitioner. Thereafter, the respondent No. 2 also sought for certain clarification as to the State formulation of the service book. After obtaining the necessary guidelines, the respondent No. 2 communicated the same to the Superintending Engineer. Thereafter, the respondent No. 3 vide Annexure-8 passed the order for recovery from the post retiral benefits which is also impugned in the writ application. Being aggrieved by and dissatisfied with the impugned orders passed by the respondents for recovery from the post retiral benefits, the petitioner left with no other alternative, efficacious and speedy remedy, has invoked extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances. 3. Mr. Being aggrieved by and dissatisfied with the impugned orders passed by the respondents for recovery from the post retiral benefits, the petitioner left with no other alternative, efficacious and speedy remedy, has invoked extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances. 3. Mr. Navin Kumar Singh, learned counsel for the petitioner, during course of hearing, has submitted with vehemence that the recovery which has been done on the allegation that the petitioner being 4th grade employee being custodian of the service book on the basis of Annexure-A to the supplementary counter-affidavit, the same has been done being oblivious of the relevant rules i.e. Rules 297 and 298 of the Jharkhand Service Code. Therefore, the alleged action on the part of the respondents is in infraction of the relevant provisions of the Jharkhand Service Code. In order to buttress the submissions, learned counsel for the petitioner has referred to Rules 101 and 102 of the Bihar Financial Rules which inter-alia prescribes that the service book should be taken up every year for verification of service and record of necessary certificate in the manner as laid down in Rule 101. Therefore, the respondents could not have apportioned blame on the petitioner for their own laches and negligence. Moreover, the petitioner has worked and discharged his duties, so under no circumstances, the recovery could have been affected by the respondents. In support of the contention raised, learned counsel for the petitioner has referred to the decision reported in 1994 Supp (3) SCC 705 in the case of State of Bihar vs. Narasimha Sundram and also the decision reported in 2000 (2) BLJ 688 in the case of Kaushalya and Others vs. State of Bihar and also reported in 2015 (1) JCR 369 (SC) : (2015) 4 SCC 334 in the case of State of Punjab and Others vs. Rafiq Masih (White Washer) and Others. 4. Controverting the averments made in the writ application, a counter-affidavit has been filed by the respondents No. 3 and 4 wherein it has been inter-alia submitted that the petitioner has resorted to manipulation of records. The actual date of birth of the petitioner is 02.01.1949, but after manipulation the same has been changed as 12.12.1953. 4. Controverting the averments made in the writ application, a counter-affidavit has been filed by the respondents No. 3 and 4 wherein it has been inter-alia submitted that the petitioner has resorted to manipulation of records. The actual date of birth of the petitioner is 02.01.1949, but after manipulation the same has been changed as 12.12.1953. It has further been submitted and stated in the counter-affidavit that in the GPF account, the date of birth has been mentioned as 02.01.1949 but in the service book, the same has been manipulated as 12.12.1953. As soon as the matter was brought to the notice of the respondent authorities, the impugned notice dated 04.05.2012 was issued to the petitioner vide Annexure-A to the counter-affidavit. It has further been submitted in the counter- affidavit that the petitioner has accepted vide letter dated 08.05.2012 that the original date of birth is 02.01.1949 and accordingly pension be paid to the petitioner as evident from Annexure-B to the counter-affidavit. The decision reported in (1997) 9 SCC 239 in the case of Radha Kishun vs. Union of India and Others has been referred to in the counter- affidavit. It has further been stated in the counter-affidavit that so far as pension and gratuity is concerned, the Executive Engineer, Water Ways Division-II, Chakradharpur Camp-Chaibasa sent pension paper to the office of Accountant Genera (A&G) Jharkhand, Ranchi treating to retire on 31.01.2009 vide memo date 30.10.2013 vide Annexure-C to the counter-affidavit. Accordingly, Group Insurance amounting to Rs. 70,579/- has been paid to the petitioner. Due to overstay in the service, the impugned order dated 31.07.2013 vide Annexure-8 has been issued to the petitioner. 5. Mr. Rajesh Kumar Singh, learned JC to GP-IV for the respondent-State, apart from reiterating the submissions made in the counter-affidavit, has also vociferously submitted that the impugned orders vide Annexures-3 and 8 to the writ application cannot be assailed because the petitioner has resorted to receive emoluments by fraud, manipulation of records and he could not continue beyond the actual date of retirement. Learned counsel for the State has further submitted that for the fraud and manipulation, the employee should face the consequences. 6. Learned counsel for the State has further submitted that for the fraud and manipulation, the employee should face the consequences. 6. A counter-affidavit has been filed on behalf of respondent No. 5-Accountant General, Jharkhand stating that on receipt of the departmental sanction letter dated 30.10.2013, the respondents have already allowed the pensionary benefits in favour of the petitioner vide letter dated 25.11.2013 vide Annexure-A to the counter-affidavit. 7. After hearing learned counsel for the respective parties at length, giving my anxious consideration to the documents on records and in view of the legal position as has been cited hereinabove, I am of the considered view that the petitioner has been able to make out a case for interference, due to the following facts and reasons:- (i) Admittedly, the petitioner worked in the Class-IV posts of Peon till 08.05.2012. Though, he received notice of retirement with retrospective effect from 31.01.2009, the allegations levelled against the petitioner is about manipulation of date of birth in the service book and variance date of birth recorded in GPF account i.e. 12.12.1953 and 02.01.1949 respectively. Without verifying the veracity of allegation and full fledged inquiry, unilateral decision has been taken by the respondents for recovery of the salary for the overstayed period, which is not supported by any cogent reasons. On perusal of Jharkhand Service Code, i.e. Rules 297 and 298, it is crystal clear that the head of the office shall be personally responsible for proper maintenance of service book and the service books should be taken for verification in July of every year. Every entry must be attested by the head of the office or the custodian. It would be also be relevant to mention that Rules 101 and 102 of the Bihar Financial Rules inter-alia envisages that service book should be taken up every year for verification of service and record of necessary certificate in the manner laid down in Rule 101. The aforesaid provisions inductively or universally makes it specifically clear that the head of the office is custodian of the records. If any manipulation or interpolation has been done, the same could have been recorded at the relevant point of time by the head of the office who is custodian of the records. The aforesaid provisions inductively or universally makes it specifically clear that the head of the office is custodian of the records. If any manipulation or interpolation has been done, the same could have been recorded at the relevant point of time by the head of the office who is custodian of the records. Though the beneficiary is the petitioner, but the alleged manipulation/interpolation could not have been done by the petitioner alone without their being any complicity and collusion of other officer. In absence of any specific inquiry, the blame could not have been apportioned on the petitioner. Therefore, the action of the respondents without any full-fledged inquiry cannot be just and proper. On perusal of the impugned orders the irresistible conclusion would be that respondents in a cavalier manner have passed an order for recovery from the post retiral benefits of the petitioner for the overstayed period, which is also not sustainable, in view of the decisions reported (supra). (ii) The view of this Court gets fortified by the decision of the Hon'ble Apex Court reported in 1994 Supp (3) SCC 705 wherein the Hon'ble Apex Court in identical circumstances has been pleased to hold that the petitioner cannot be accused for the manipulation for the period in question as no proceeding was ever initiated as to the alleged manipulation/fraud played by the petitioner. The decision of the Patna High Court reported in 2000 (2) BLJ 688, in the case of Kaushalya and Others vs. State of Bihar, wherein Full Bench of the Patna High Court has been pleased to hold that recovery of excess payment made to the employees for the service rendered beyond the actual date of superannuation without any misrepresentation/manipulation made by them is not permissible. The Hon'ble Apex Court in 2015 (1) JCR 369 (SC) : (2015) 4 SCC 334 in the case of State of Punjab and Others vs. Rafiq Masih (White Washer) and Others, has been pleased to summarize that recovery shall not be made from the employees of Class-III and Class-IV posts after retirement from service which has been quoted in para-18 of the said judgment. (iii) In the instant case, admittedly no proceeding has been initiated under the relevant Pension Rules for recovery of post retiral benefits, so the impugned order vide Annexure-3 and Annexure-8 cannot be sustained, in view of the decision rendered by this Court in the case of Dr. Dudh Nath Pandey vs. State of Jharkhand and Others, 2007 (4) JCR 1 (Jhr). 8. In view of the submissions made in the foregoing paragraphs and as a logical sequitur to the reasons hereinabove, the impugned orders dated 08.05.2012 (Annexure-3) and 31.07.2013 (Annexure-8) are hereby quashed and set aside and the respondents are directed to refund admissible salary for the period which has been recovered from the post retiral benefits, within a period of 12 weeks from the date of receipt/production of a copy of this order. 9. With the aforesaid observations and directions, the writ petition stands allowed. Petition allowed.