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2018 DIGILAW 1 (JHR)

Saroj Prasad v. State of Jharkhand

2018-01-01

AMITAV K.GUPTA

body2018
ORDER : The petitioner has prayed for quashing of the order as contained in Memo No. 315 Patna dated 1.3.2001 (Annexure-1) passed by the Director, Employment and Training, Bihar, Patna, whereby the first time bound promotion in the scale of Rs. 850-1360/- and the second time bound promotion in the scale of 880-1510/- w.e.f. 1.1.1981 and 28.2.1989, were declared irregular as the admissible first time bound promotion and second time bound promotion should have been in the scale of Rs. 785-1210/and Rs. 850-1360/- respectively. He has also prayed for quashing the order of the Principal, industrial Training Institute, Hazaribagh as contained in Letter No. 552 Hazaribagh, dated 14.9.2001 (Annexure-3), directing the petitioner to deposit the excess amount of Rs. 64,379.30 (sixty four thousand three hundred seventy nine and paise thirty only) paid to him on account of the irregular fixation of salary. 2. Learned counsel for the petitioner has submitted that the petitioner was compelled to deposit the amount since it was ordered that if he did not deposit the amount his pension papers would not be forwarded by finalization to the competent authority. It is submitted that in similar circumstances, this Court in WP(S) No.4590 of 2004, WP(S) No. 4628 of 2004, WP(S) No. 4689 of 2004 and WP(S) No.6220 of 2004 had quashed such orders of recovery as they were passed after a long delay from the date of grant of the benefits. It is submitted that the first time bound promotion and second time bound promotion were given in the year 1981 and 1989. That the order for recovery of the said amount was passed in violation of the provisions contained Rule 43(B) of Jharkhand Pension Rules without issuance of any notice to the petitioner. Learned counsel has relied on the decision of the Supreme Court in the case of Kusheswar Nath Pandey v. State of Bihar and others, (2013) 12 SCC 580 and submitted that the facts as delineated in the writ petition are squarely covered by the aforesaid decision and submitted that the action of the respondent is not tenable in law. 3. Learned counsel appearing for the State of Jharkhand has resisted the claim and contended that the petitioner can file a representation alongwith the said decisions, before the concerned authority, who will pass necessary order, in accordance with law. 4. 3. Learned counsel appearing for the State of Jharkhand has resisted the claim and contended that the petitioner can file a representation alongwith the said decisions, before the concerned authority, who will pass necessary order, in accordance with law. 4. Learned counsel for the State of Bihar has submitted that initially the letter was issued by the State of Bihar but the recovery has been ordered by the State of Jharkhand. It is for the State of Jharkhand to consider whether the petitioner is entitled to refund of the said amount. 5. Heard. Admittedly, the petitioner had joined as Instructor (Sheet Metal) in the year 1962 at Industrial Training Institute, Hazaribagh. He superannuated on 30.9.1999. The petitioner was granted first time bound promotion in the year 1981 and second bound time promotion in 1989. The order of recovery has been passed without service of notice upon the petitioner. The letter of recovery of the paid amount was issued in 2001, i.e., after a delay of nearly 20 and 12 years respectively, after grant of first and second time bound promotion. It is evident from Annexure-4 that the petitioner was directed to deposit the said amount or else his pension papers would not be forwarded to the concerned authority. The petitioner had deposited the said amount under protest. 6. There is no allegation that the time bound promotion under the scheme was given on account of any misrepresentation or suppression of any fact by the petitioner. In view of the obtaining facts the case of the petitioner is squarely covered by the judgment rendered by order dated 19.12.2008 in WP(S) No.4590 of 2004 in the case of Deolal Singh v. The State of Jharkhand and others and the decision of the Supreme Court in the case of Kusheswar Nath Pandey v. State of Bihar and others, (2013) 12 SCC 580 . 7. It is evidenced that no show-cause or notice was issued to the petitioner under Section 43(B) of the Bihar/Jharkhand Pension Rules for recovery of the excess amount neither any enquiry was conducted within four years from the date of detection of the anomaly neither any opportunity of hearing was afforded to the petitioner. In fact, the respondents had paid the amount after accepting the pay scale in the time bound promotion given to the petitioner. 8. In fact, the respondents had paid the amount after accepting the pay scale in the time bound promotion given to the petitioner. 8. The petitioner superannuated on 30.9.1999 on the said pay-scale therefore, the order for recovery as contained in Memo No.315 issued by the Director, Employment and Training and the order contained in Letter No. 552, of the Principal. Industrial Training Institute is not sustainable. 9. In view of the discussion made hereinabove and the settled proportion the respondents are directed to refund the recovered amount of Rs. 64,379.30 (sixty four thousand three hundred seventy nine and paise thirty only) within two months from the date of receipt or production of this order, failing which, the respondents shall pay an interest of 5% on the said amount from the date of this order. 10. With the aforesaid direction/observation, this writ petition is, hereby, allowed. Petition allowed.