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2018 DIGILAW 1459 (JHR)

Vijay Kumar v. State of Jharkhand

2018-07-06

S.N.PATHAK

body2018
ORDER : Heard learned counsel for the petitioner and learned counsel for the respondents. 2. Petitioner has approached this Court with a prayer for quashing the letters dated 20.04.2017 (Annexure-2) and 06.07.2017 (Annexure-2/1), issued by the office of the Accountant General, Jharkhand, Ranchi, whereby an order has been passed for recovery of Rs.86,296/- from the petitioner, which has allegedly been paid in excess to him under the head of Gratuity. Further prayer has also been made for a direction upon the respondents to make payment of arrears of difference of amount payable on account of revised pension w.e.f. 01.02.2011 @ Rs.9,455/- per month, which has been enhanced from Rs.8,815/- per month and not paid to him. 3. The factual exposition as has been delineated in the writ petition is that petitioner was appointed as Junior Account Clerk vide office order No. 109 as contained in memo No. 322 dated 26.05.1987 issued by the Chief Engineer (Mechanical) and pursuant thereof, the petitioner had joined the said post on 02.06.1987 in Public Health Engineering, Mechanical Circle in Muzaffarpur. Thereafter, he was transferred to Public Health Engineering Circle, Gumla on 07.12.1994 and finally, he was transferred to Drinking Water and Sanitation Division, Gumla. After working for a long period to the utmost satisfaction of the respondent-authorities, he was superannuated on 31.01.2011 working as Junior Accounts Clerk. After his retirement, his pension was fixed on basic of Rs.8,815/- per month, which he is getting till now. It is the further case of the petitioner that the office of the Accountant General has fixed the amount of gratuity to the tune of Rs.4,21,806/- and the said amount has already been paid to him. Later on, the office of the Accountant General has sent an intimation to the petitioner that he is entitled for the amount of Rs.3,35,510/- only towards gratuity and hence, he has received an excess amount of Rs.86,296/- than what was actually payable to him. The office of the Accountant General vide letter dated 20.04.2017 and 06.07.2017, came to a conclusion that this excess amount of Rs.86,296/- has to be recovered from the petitioner. The petitioner represented before the respondent-Accountant General vide his representations dated 21.03.2017 and 09.06.2017 but no orders have been passed on his representations and hence, the petitioner has knocked the door of this Hon’ble Court for redressal of his grievances. 4. Mr. The petitioner represented before the respondent-Accountant General vide his representations dated 21.03.2017 and 09.06.2017 but no orders have been passed on his representations and hence, the petitioner has knocked the door of this Hon’ble Court for redressal of his grievances. 4. Mr. Arshad Hussain, learned counsel appearing for the petitioner strenuously urges that the letters dated 20.04.2017 (Annexure-2) and 06.07.2017 (Annexure-2/1) issued by the office of the Accountant General is illegal, unjustified and hence, fit to be quashed and set aside. The office of the Accountant General has calculated the amount on his own and the petitioner or his department has not given any wrong information. Learned counsel further argues that the petitioner has already retired on 31.01.2011 and after lapse of more than 6 years, the respondents have given such a threatening letter to the petitioner for recovery of the amount, which is wrong and illegal. Learned counsel also argues that due to the letter of recovery, the petitioner is also not getting the benefit of revised pension. The pension of the petitioner was fixed @ Rs.8,815/- per month which has now been revised/enhanced @ Rs.9,445/- per month w.e.f. February, 2011 but he is not getting the benefits of the enhanced rate of pension and arrears of the differential amount. Summing-up his arguments, learned counsel submits that if the order of recovery is not quashed, the petitioner will suffer irreparable loss and immense injury. 5. Per contra, counter-affidavit has been filed by the respondent-Accountant General. Learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that pursuant to the sanction order issued by the Executive Engineer, Drinking Water & Sanitation Division, Gumla, as contained in letter No. 2063 dated 15.12.2010, the office of the answering respondent has authorized the pensionary benefits in favour of the petitioner. The authorization of gratuity was made on the basis of total length of service of 27 years and 6 months and consequently, an authority slip for a sum of Rs.4,21,806/- was issued vide GPO No. 1555/10-11 dated 24.01.2011 in favour of the petitioner. The authorization of gratuity was made on the basis of total length of service of 27 years and 6 months and consequently, an authority slip for a sum of Rs.4,21,806/- was issued vide GPO No. 1555/10-11 dated 24.01.2011 in favour of the petitioner. Learned counsel further argues that on receipt of letter No. 500 dated 06.05.2015 from the department and while scrutiny of service book and pension papers of the petitioner for revision of pensionary benefits, it was detected that earlier, the gratuity was calculated erroneously and authorized on the basis of total length of service of 27 years and 6 months in place of actual length of service of 23 years, 7 months and 29 days. Hence, it was instructed to the District Treasury Officer, Gumla by the office of answering respondent vide their letter dated 22.05.2015 to recover the excess amount of Rs.86,296/- (Rs.4,21,806 - Rs.3,35,510) from the petitioner. The rectification order was also communicated to the petitioner. The office of the Accountant General vide its letter dated 16.04.2018 has also requested the Executive Engineer, Drinking Water & Sanitation Division, Gumla to inform about the action taken on their part. 6. Be that as it may, having gone through the rival submissions of the learned counsel for the parties, this Court is of the considered opinion that the case of the petitioner needs consideration. Admittedly, the petitioner retired on 31.01.2011 and after lapse of more than 6 years, the respondents have passed the recovery order, which is not tenable in the eyes of law. It is not desirable for the respondents to recover any amount from the retiral benefits of the petitioner on the ground of wrong fixation of pay and excess payment. So far as recovery is concerned, there has been no misrepresentation or fraud on the part of the petitioners. The Hon’ble Apex Court in case of Col. B.J. Akkara (Retd.) vs. Govt. of India, reported in (2006) 11 SCC 709 has held that, “recovery of excess wrong payment of emoluments/allowances of an employee is not permissible if: (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.” 7. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.” 7. The Hon’ble Supreme Court para-18 in case of State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors. [(2014) 4 SCC 334], has 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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.” The Hon’ble Supreme Court in the case of Chandi Prasad Uniyal and Ors vs. State of Uttarakhand and Ors., reported in (2012) 8 SCC 417 as held as under:- “We may in this respect refer to the judgment of two-Judge Bench of this Court in Col. B.J. Akkara (retd.) case (supra) where this Court after referring to Shyam Babu Verma case, Sahib Ram case (supra) and few other decisions held as follows: Such relief, restraining recovery back of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.” The Hon’ble Supreme Court in the case of Syed Abdul Qadir v. State of Bihar, reported in (2009) 3 SCC 475 , has held as under:- “Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." The Full Bench of this Hon’ble Court in the case of Smt. Normi Topno vs the State Of Jharkhand & Ors., reported in 2008 (1) JCR 381 Jhr, has held as under:- “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.” 8. As cumulative effect of the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, I hereby quash and set aside the letter dated 20.04.2017 (Annexure-2) and 06.07.2017 (Annexure-2/1), issued by the office of the Accountant General, Jharkhand, Ranchi, whereby an order has been passed for recovery of Rs.86,296/- from the petitioner. Respondents are directed to refund the amount, if any, already recovered from the retiral benefits of the petitioner and also make payment of arrears of difference of amount payable on account of revised pension w.e.f. 01.02.2011 @ Rs.9,455/- per month which has been enhanced from Rs.8,815/- per month and not paid to him, within a period of six weeks from the date of receipt/production of a copy of this order. 9. Resultantly, the writ petition stands allowed.