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2017 DIGILAW 2166 (JHR)

Basant Prasad v. State Of Jharkhand

2017-12-15

ANIL KUMAR CHOUDHARY

body2017
JUDGMENT Anil Kumar Choudhary, J. - Heard learned counsel for the petitioner and learned J.C. to S.C.V for the respondents. 2. This writ petition has been filed firstly with a prayer for quashing the memo no. 2256 dated 10.10.2009 issued by the respondent no. 3 whereby the promotion given to the petitioner on the post of Head Master in the year 2003 was cancelled and it was further directed to recover the amount paid to the petitioner from his retiral dues in 24 equal installments and secondly with the prayer for direction upon the respondent no. 3 to refund the excess amount which has been deducted from the salary of the petitioner pursuant to the order passed by the respondent no. 3. 3. It is submitted by Mr. Awnish Shankar, the learned counsel for the petitioner that the petitioner confines his prayer to quashing the portion of the said memo no. 2256 dated 10.10.2009 by which it was directed to recover the excess amount from the petitioner in 24 equal installments and the prayer for direction upon the respondent no. 3 to refund the excess amount which has been deducted from the salary of the petitioner pursuant to the order passed by the respondent no. 3 only and does not press the rest prayers. 4. It is pertinent to mention here that though the respondent-State sought time to file counter-affidavit on 15.05.2012 but the counter-affidavit has not been filed by the respondent-State in this writ petition till date. 5. The facts involved in this writ application in a nutshell are that the petitioner was appointed as Science Teacher in the Government Middle School, Salgawan within the District of Hazaribagh and he continued there from 18.10.1973 to 7.8.1981. The petitioner passed his diploma in Education from Bhagalpur University on 03.02.1983 and was transferred to Government Middle School Kuju as Science Teacher getting trained scale and worked there till October 2002. Vide memo No. 2196 dated 24.05.2003 issued under the signature of respondent no. 3, the petitioner was promoted to the post of Head Master and the petitioner joined as such on the post of Headmaster of Government Middle School, Tiuz-Punai, Ichak, District-Hazaribag on 15.06.2003. On completion of 12 years of service in pay-scale Grade-7 the petitioner was upgraded to the pay-scale Grade-8 with effect from 31.03.1995. 3, the petitioner was promoted to the post of Head Master and the petitioner joined as such on the post of Headmaster of Government Middle School, Tiuz-Punai, Ichak, District-Hazaribag on 15.06.2003. On completion of 12 years of service in pay-scale Grade-7 the petitioner was upgraded to the pay-scale Grade-8 with effect from 31.03.1995. The petitioner retired from the post of Head Master on 31.05.2009 and after his retirement, the respondent no. 3 vide memo no. 2256 dated 10.10.2009 cancelled the promotion granted to the petitioner on the post of Head Master vide letter no.2196 dated 24.05.2003 without any reason and the respondent no. 3 further directed to recover the excess payment in 24 equal installments from the retiral dues of the petitioner. 6. Since no counter-affidavit has been filed by the State, the facts averred in the writ petition remains undisputed. 7. Mr. Awnish Shankar, learned counsel for the petitioner relied upon the judgment rendered by the Hon''ble Supreme Court in the Case of State of Punjab vs. Rafique Masih (White Washer) & Ors. reported in (2015) 4 SCC 334 wherein the Hon''ble Court has in paragraph 18 summarised the following few situations, wherein recoveries by the employers would be impermissible in law: (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. 8. Learned counsel further submitted that since the petitioner is a retired employee and he has undisputedly discharged his duty in Higher Post hence the recovery from the retiral dues is not permissible in law. Learned counsel for the petitioner further relied upon the full Bench judgment of this Court in the case of Smt. Normi Topno vs. State of Jharkhand & Ors. reported in (2008) 1 JCR 381 wherein this court has held in paragraph 47 as under : In view of the above discussions, we arrive at the following conclusion. To sum up: After retirement, there is no relationship of employer and employee and as such no recovery can be made from the retrial benefits without following procedure of law as provided under Rule 43(b) of the Bihar Pension Rules. To sum up: After retirement, there is no relationship of employer and employee and as such no recovery can be made from the retrial benefits without following procedure of law as provided under Rule 43(b) of the Bihar Pension Rules. Hence, without fulfilling the conditions under Rule 43(b) and without cancelling the order of promotion after enquiry by the competent authority, pension and other retiral benefits cannot be recovered that too without giving opportunity to the retired employee and without giving any finding with reference to the mis-representation or misconduct on the part of the concerned employee or any other employee merely on the recommendation of audit objection." (Emphasis given) It will be relevant to refer to the Rule 43(b) of Bihar Pension Rules, 1950, which is as under: 43(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on reemployment after retirement: Provided that:- (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or ''during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation.- For the purposes of the rule- (a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted:-(i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a civil Court. (Emphasis given) 9. It is submitted by the learned counsel for the petitioner that as the excess amount paid has been illegally ordered to be recovered hence that portion of memo number 2256 dated 10.10.2009 may be quashed and the respondent no. 3 be directed to refund the amount which has been recovered from the retiral dues of the petitioner within a reasonable time period. 10. Learned J.C. to S.C. V fairly concedes that the petitioner is entitled to get refund of the amount which has been deducted from his retiral dues. 11. After hearing the parties and perusal of the record I am of the considered view that that the petitioner undisputedly discharged the duties in the higher post of Headmaster and has been paid accordingly, may be the petitioner was wrongfully required to do so hence the case of the petitioner is squarely covered by the case of Rafique Masih(supra). Otherwise also the order to recover money from retirement benefits having been made without even any allegation of misconduct or negligence on the part of the petitioner and obviously without any finding of guilt in any departmental or judicial proceeding, thus without following procedure of law as provided under Rule 43(b) of the Bihar Pension Rules is liable to be quashed and set aside. 12. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, the portion of the memo no. 2256 dated 10.10.2009 by which it was directed to recover the excess amount from the petitioner in 24 equal installments is quashed and set aside and the respondent no. 12. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, the portion of the memo no. 2256 dated 10.10.2009 by which it was directed to recover the excess amount from the petitioner in 24 equal installments is quashed and set aside and the respondent no. 3 is directed to refund the amount which has been deducted from the retiral dues paid to the petitioner, within a period of three months from date of this order. 13. With the aforesaid observations and directions, the writ petition stands allowed.