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2018 DIGILAW 1966 (JHR)

Radha Mohan Lohra v. State of Jharkhand

2018-08-28

S.N.PATHAK

body2018
JUDGMENT : S.N. PATHAK, J. 1. The petitioner has approached this Court with a prayer for quashing the order No. 486 dated 27.06.2014 issued by the respondent No. 6 i.e. Executive Engineer, Subernrekha Nahar Division, Galudih Headquarters, Jamshedpur, (Annexure-4) whereby the respondent No. 6 has directed to recover the transport allowance from the petitioners on account of excess payment made to them and in pursuant to the said order issued by the respondent No. 6, the excess payment made to the petitioners have been ordered to be recovered from the salary of the petitioners without giving any opportunity of hearing. 2. The factual exposition, as has been delineated in the writ petition, is that the petitioners have been working under the respondent No. 6 as Class III and IV employees. Petitioner Nos. 1 to 6 and petitioner Nos. 8 to 15 are working as Class IV employees in pay scale of Rs. 4440-7440 with grade pay of Rs. 1900/- whereas the petitioner No. 7 is working as a Class III employees in the pay scale of Rs. 5200-20200 with grade pay of Rs. 1900/- and all of them were being paid the transport allowance @ Rs. 800/- + D.A. since September, 2008. 3. It is the case of the petitioner that since September, 2008, the petitioners were being paid the transport allowance @ Rs. 800/- + D.A. But later on Respondent No. 2 issued a corrigendum contained in memo No. 841 dated 16.03.2009 fixing the rate of transport allowance for grade pay of Rs. 4200, 4600 and 4800 @ Rs. 1600/- + D.A. in Class A cities and @ Rs. 800 + D.A at other places. Further vide memo No. 1304 dated 18.04.2009 it was clarified by the Department of Finance that those employees drawing grade pay below Rs. 4200/- but drawing pay in Pay Band-I equal to Rs. 7440/- against the replacement pay of Rs. 4000/- (unrevised) shall also be entitled for transport allowance @ Rs. 800/- and D.A. thereupon, whereas rest of the employees in the grade pay below Rs. 4200/- shall be entitled to transport allowance @ Rs. 400/- + D.A. thereon. As per the said clarification, the transport allowance will be payable only to Ranchi, Jamshedpur and Dhanbad. It was further clarified that the government employee who is in grade pay of Rs. 5400/- and more shall be entitled for transport allowance @ Rs. 4200/- shall be entitled to transport allowance @ Rs. 400/- + D.A. thereon. As per the said clarification, the transport allowance will be payable only to Ranchi, Jamshedpur and Dhanbad. It was further clarified that the government employee who is in grade pay of Rs. 5400/- and more shall be entitled for transport allowance @ Rs. 1600/- whereas those employees in grade pay of Rs. 4200-4800/- shall be entitled for transport allowance @ Rs. 800/- + D.A. and Pay Band-I of Rs. 7400/- and more shall be entitled for transport allowance @ Rs. 800/- and more for the above mentioned three cities. The petitioner nos. 1 to 6 and petitioner Nos. 8 to 15 are Class IV employees who is in grade pay of Rs.1900/-and having pay scale of Rs. 4440-7440 and the petitioner No. 7 is Class III employees, who is in the grade pay of Rs. 1900/- and having pay scale of Rs. 5200-20200 and were being paid the transport allowance @ Rs. 800/- + D.A. since September, 2008. The respondent-authority on one fine morning vide memo No. 3538 dated 19.12.2013 has issued a directives clarifying the doubts in relation to payment of traveling allowance to the government employees. In the said letter, it has been stated that only those employees whose basic scale in unrevised pay scale on 01.01.2006 is Rs. 4000/- would be entitled for traveling allowance @ Rs. 800/- and for others having grade pay below of Rs. 2400/-though being in the pay scale of Rs. 4000-6000/- shall be entitled for traveling allowance @ Rs. 400/-. In compliance of the memo No. 3538 dated 19.12.2013 the respondent No. 6 vide letter No. 486 dated 27.06.2014 directed to recover the transport allowance from the petitioner on account of excess payment made to the petitioners without giving only opportunity to them of being heard which is against the cardinal principle of natural justice. The respondent No. 6 vide letter No. 42 dated 28.01.2015 passed order for making recovery of the excess payment made to the petitioners on account of transportation allowance from the salary of the petitioners which is absolutely illegal and same is against the mandate of law. The respondent No. 6 vide letter No. 42 dated 28.01.2015 passed order for making recovery of the excess payment made to the petitioners on account of transportation allowance from the salary of the petitioners which is absolutely illegal and same is against the mandate of law. Aggrieved by the impugned order dated 28.01.2015 the order of recovery, the petitioners filed representation before the respondent-authorities but the same was not considered and no heed was paid to the representation and hence the present writ petition has been filed. 4. Mr. K.K. Ambastha, learned Counsel appearing for the petitioner strenuously urges that the impugned order is not sustainable in the eyes of law on the ground that same has been issued in complete defiance of cardinal principle of natural justice. Learned Counsel further submits that even if in view of corrigendum/clarification, the petitioners are entitled for the transport allowance of Rs. 400/- + D.A. But the order to that effect ought to have been issued by following the cardinal principle of natural justice. The impugned order dated 28.01.2015 is not at all sustainable and as such is fit to be quashed and set aside. 5. Per contra counter-affidavit has been filed. 6. Mr. Amit Kumar Verma, A.C. to S.C. (L&C) vehemently opposes the contention of the learned Counsel for the petitioner and draws the attention of the Court towards paragraph 12 of the counter-affidavit and submits that in view of provision contained in letter No. 3538 dated 19.12.2013, on careful scrutiny and examination of the matter by the Executive Engineer, it has found that the wrong and excess payment have been made to employees/petitioners with respect to aforesaid circular and clarification bearing Memo No. 3538 dated 19.12.2013, accordingly the said Letter No. 486 dated 27.06.2014 was issued and decision was taken to recover the excess amount from the salary of the employees/petitioners. Justifying the impugned order, learned Counsel submits that in view of letter No. 486 dated 27.06.2014 Executive Engineer, Subarnarekha Canal Division, Gangudih, Jamshedpur has passed an order for deduction of the said amount from the salary w.e.f. January, 2015 of the petitioners and as such there is no illegality or infirmity in the order of recovery vide order dated 28.01.2015 (Annexure-3) and as such no interference is warranted in the writ petition. 7. 7. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered opinion that case of the petitioner needs consideration. Admittedly, the amount wrongly paid to the employees can be very much rectified even after retirement. In the instant case, the petitioners are still in service. The amount wrongly paid to the petitioner can be rectified following the procedure of law. The respondents without giving any opportunity of hearing and without following the cardinal principle of natural justice have issued the impugned order which is not at all sustainable in the eyes of law. No orders can be passed without giving any opportunity of hearing. Respondents are justified in making rectifications. In the instant case if the petitioner did not make any misrepresentation for getting the transport allowance @ of Rs. 800/- + D.A. it was only respondents who have issued an order for making payment of traveling allowance @ Rs. 800/- + D.A. The petitioners cannot be held responsible for it. The petitioners are Class-III & IV employees, they are not supposed to be aware of the laws but the respondents who are high ranking officials are very much aware of the prevailing laws. For the mistakes committed by the respondents, the petitioner cannot be allowed to suffer. The amount already recovered from the petitioners shall be refunded to them as they did not receive the amount by committing any fraud or misrepresentation. Henceforward, the petitioners will be entitled for travelling allowance @ Rs. 400/- as per the corrigendum/ clarification issued by the respondents and after issuance of the impugned order at Annexure-3 respondents are free to issue a show-cause notice to the petitioners for taking their reply as to why they are not entitled for the travelling allowance of Rs. 400/- instead of 800/-. The impugned order dated 27.06.2014 (Annexure-4) and order dated 28.01.2015 (Annexure-5) are hereby quashed and set aside. 8. Let the entire exercise be completed within a period of eight weeks from the date of receipt of a copy of this order. 9. With the aforesaid observation and direction, the writ petition stands disposed of.