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2017 DIGILAW 82 (JHR)

Raj Kumar Bhagat v. State of Jharkhand

2017-01-11

SHREE CHANDRASHEKHAR

body2017
ORDER : 1. Grievance of the petitioners is directed against the decision dated 10.05.2006 of the District Education Establishment Committee, Pakur. 2. Heard. 3. The learned counsel for the petitioners submits that, before it is ascertained whether the petitioners are responsible for the alleged wrong fixation of payscale and whether they can be extended benefit of order passed in S.L.P. (C) No. 10051 of 1990 read with Civil Appeal No. 5148 of 1992 or not, a final decision for refixation of payscale and recovery of excess amount allegedly paid to the petitioners, has been taken. It is contended that the show-cause notice issued to the petitioners was a mere formality and, in fact, the respondents have already taken a decision. The learned counsel for the petitioners has referred to judgments in “State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others” reported in (2015) 4 SCC 334 and “Oryx Fisheries Private Limited Vs. Union of India and Others” reported in (2010) 13 SCC 427 . 4. Mrs. Rakhi Rani, the learned State counsel submits that if the petitioners have been paid salary etc. on account of wrong fixation, the excess amount paid to them needs to be recovered. It is submitted that an administrative mistake can be cured at any stage. 5. Briefly stated, the petitioners, who were working as Primary School Teachers, were terminated from service. The order of termination was challenged before Patna High Court. The writ petition was disposed of permitting the respondent-State of Bihar to start a fresh selection process by granting age relaxation to the teachers. The matter when came before the Hon'ble Supreme Court, in S.L.P. (C) Nos. 11699 of 1990 and 10051 of 1990 order passed by the High Court was modified to the extent that on reappointment the teachers who were terminated from service shall be granted continuance in service and seniority as well as salary. It appears that this order was subsequently modified by the Supreme Court in Civil Appeal No. 5148 of 1992 in the following terms; “We are informed that the appellants involved in present case were paid salaries till 30th June, 91. We also understand from Mr. B.B. Singh, learned advocate appearing for the State that all the vacancies have been filled in till 1.1.1992. We also understand from Mr. B.B. Singh, learned advocate appearing for the State that all the vacancies have been filled in till 1.1.1992. If there were vacancies and yet the appellants were not appointed in the said vacancies such of the appellants who were eligible to be appointed and yet were not appointed in spite of the vacancies, would be entitled to the salaries from 1st July, 1992 till their appointment. However, if there were no vacancies and all the appellants or some of them have to be appointed in the new vacancies which may be available hereafter, they will not be entitled to the salaries from 1st July, 1992 till the date of their appointment. However, when they are appointed the period of break in service not exceeding one year will be taken into consideration for benefits other than salary. The appeal is disposed of accordingly, with no order as to costs. ” 6. After a decision was taken by the District Education Establishment Committee, Pakur show-cause notices were issued to the individual teachers, however, before a final decision was taken this Court passed an interim order on 28.11.2006. The matter remained standstill thereafter. Be that as it may, the fact remains that the stand of the petitioners on recovery of the excess amount was not considered, yet, a final decision was taken by the District Education Establishment Committee. In “State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others” reported in (2015) 4 SCC 334 , the Hon'ble Supreme Court held as under; “18. 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 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. (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.” 7. The learned counsel for the petitioners has submitted that in the light of the decision in "Rafiq Masih" recovery of excess payment, if any, cannot be made from the petitioners. Another plea raised by the petitioners is benefit of service to them in the light of the decision of Supreme Court. Admittedly, a decision has already been taken by the Establishment Committee and while so, show-cause notice issued to the petitioners has been rendered redundant. 8. “Oryx Fisheries Private Limited Vs. Union of India and Others” reported in (2010) 13 SCC 427 , the Hon'ble Supreme Court held as under; “31. It is of course true that the show-cause notice cannot be read hypertechnically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show-cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence. 9. What follows from the aforesaid discussions is, that the impugned decision of the Establishment Committee suffers from serious infirmity in law. 9. What follows from the aforesaid discussions is, that the impugned decision of the Establishment Committee suffers from serious infirmity in law. The petitioners were denied effective opportunity of hearing before a decision was taken on 10.05.2006. In the result, impugned decision dated 10.05.2006 is quashed, in so far as it relates to the petitioners, however, the respondents are permitted to proceed in the matter after complying with the rules of natural justice. 10. Accordingly, the writ petition is allowed. Petition allowed.