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2018 DIGILAW 649 (JHR)

Abdul Qayum v. State Of Jharkhand

2018-03-19

S.N.PATHAK

body2018
JUDGMENT S.N. Pathak, J. – The petitioner has approached this Court for quashing the office order as contained in letters Nos. 92, 93, 94, 95 and 96, dated 28.01.2016 (Annexure-13 series to the writ petition) issued under the signature of respondent No.3, whereby and whereunder the pay scale of the petitioner has been revised and reduced w.e.f. 01.01.1996 in the light of the letter No. PR-2/208/1532349/R/1600/2015-2016, dated 14.01.2016 issued by the office of respondent No. 4, whereby and whereunder, the respondent Nos. 1 to 3 was directed to make necessary correction in the pay of the petitioner and also for quashing the said letter of respondent No.4. 2. Further prayer has been made for quashing the letter dated 29.04.2016 issued by the respondent No.4, wherein the respondent No.3 has been directed to recover the excess paid amount from the retiral benefits of the petitioner. 3. Further prayer has been made for a direction upon the respondents to pay all the legally payable retiral dues i.e. amount of provident fund, gratuity, leave encashment with statutory interest thereon, to the petitioner and fix the pension in the light of the pay fixed earlier vide letter No. 1188 dated 06.09.2014. 4. The factual exposition as has been delineated in the writ petition is that the petitioner along with one another person was appointed to the post of Drill Man vide office order No. 91 dated 31.12.1980 issued by the office of Superintending Engineer, Mechanical Division, Mithapur, Patna. After bifurcation of the State of Bihar and in cadre division, the services of the petitioner was allocated to the State of Jharkhand and posted as Drill Man at Dumri, Giridih. In the year, 2009. the petitioner preferred a writ petition being W.P.(S) No. 5824 of 2009 for issuance of direction upon the respondents to give revised pay scale of Rs.9300-34800 + GP 4200/-, which was dismissed as withdrawn vide order dated 14.08.2013. It is the specific case of the petitioner that he had not given any promotion during his service period till May, 2013. The pay of the petitioner has been partially revised vide the office order as contained in Memo Nos. 741, 742, 743, 744 and 745 dated 06.09.2013. It is the specific case of the petitioner that he had not given any promotion during his service period till May, 2013. The pay of the petitioner has been partially revised vide the office order as contained in Memo Nos. 741, 742, 743, 744 and 745 dated 06.09.2013. The petitioner was going to retire from services on 31.01.2016, therefore, the respondents sent the service book and pension papers of the petitioner to the respondent No.4 for necessary compliance, which was returned to the respondent No.3 with a direction as contained in letter No. PR2/208/1532349/R/1600/2015-16, dated 14.01.2016 for making necessary correction in the pay as the pay fixation done earlier was not correct. 5. It is the specific case of the petitioner that the respondents without giving any notice to the petitioner, just few days before the retirement of the petitioner, revised and reduced the pay of the petitioner w.e.f. 01.01.1996, taking the shelter of the letter No. PR-2/208/1532349/R/1600/2015-16, dated 14.01.2016 of the respondent No.4 and the respondent No.3 vide its letter Nos. 92, 93, 94, 95 and 96, dated 28.01.2016 informed to the petitioner that excess paid amount against the salary is to be recovered in one lump sum or in installment from the amount of retiral benefits/pension. Being aggrieved with the aforesaid action of the respondents, the petitioner made an application before the respondent No.2 on 12.02.2016 and prayed to make the payment in the light of the pay fixed earlier vide letter No. 1188 dated 06.09.2014 of respondent No.2. The petitioner also made several representations before the concerned respondent, but till date no action has been taken by the respondents on the pending representations of the petitioner. Hence, the petitioner has been constrained to knock the door of this Court for redressal of his grievances. 6. Mrs. Ritu Kumar, learned counsel appearing on behalf of the petitioner submits that the action of the respondents in passing order of recovery /adjustment of the excess amount is illegal, arbitrary and is impermissible under law. Even otherwise, under the common rule governing monetary issues, no recovery process is permissible after lapse of several years. 6. Mrs. Ritu Kumar, learned counsel appearing on behalf of the petitioner submits that the action of the respondents in passing order of recovery /adjustment of the excess amount is illegal, arbitrary and is impermissible under law. Even otherwise, under the common rule governing monetary issues, no recovery process is permissible after lapse of several years. Learned counsel for the petitioner further submitted that the petitioner has been retired in the year 2016 and, in fact, as no amount could have been recovered after retirement of the petitioner and therefore, hurriedly an ex parte and arbitrary order was passed by the respondents, just few days prior to his retirement. Learned counsel further argues that the respondents are not empowered to revise and reduce the pay of the petitioner at the verge of retirement without giving any notice to the petitioner. The respondents have no power to violate the principles of natural justice in revising and reducing the pay of the petitioner just few days prior to his retirement. There was no misrepresentation by the petitioner nor any fraud has been played by the petitioner. Therefore, the aforesaid recovery orders are bad in law and is accordingly, required to be quashed and set aside. Learned counsel further argues that the petitioner is entitled to get all the retrial dues as fixed by the respondents earlier and petitioner is also entitled to get the statutory interest on the legally payable dues. Learned counsel for the petitioner placed reliance in case of Sahib Ram Vs. State of Haryana & Ors. , (1995) Supp1 SCC 18, wherein it has been held that there is a complete embargo on recovery from the retired employee when there is no misrepresentation /concealment of any fact on the part of the petitioner. The issues involved in this case, are no more res integra as in case of State of Punjab & Ors Vs. Rafiq Masih (White Washer) and Ors. , (2015) 4 SCC 334 , the issue has already been set at rest. 7. Per contra, counter-affidavit has been filed by the respondents. The issues involved in this case, are no more res integra as in case of State of Punjab & Ors Vs. Rafiq Masih (White Washer) and Ors. , (2015) 4 SCC 334 , the issue has already been set at rest. 7. Per contra, counter-affidavit has been filed by the respondents. Learned counsel appearing on behalf of the respondents, vehemently opposes the contention advanced by the learned counsel for the petitioner and submits that since the petitioner was wrongly given the scale of ITI Trained drillman so the excess paid amount to him is bound to be recovered and the petitioner vide letter dated 07.10.2013 has also given a declaration that if the pay-scale granted to the petitioner is found wrong or excess in future then the excess amount shall be liable to be recovered from the salary and pension of the petitioner, therefore, the recoverable amounts have been directed to be recovered from the petitioner as well as the action of the respondents cannot be construed to be illegal or unjustified. Learned counsel further argues that Sri Umesh Prasad is an ITI Trained Drillman so he deserves a higher payscale but the petitioner is not ITI Trained Drillman and to that effect, no certificate has ever been produced by the petitioner so he cannot claim parity with Sri Umesh Prasad. Learned counsel further argues that the petitioner is entitled to receive the post retiral dues after deduction of the excess amount wrongly given to him on account of wrong higher pay scale. 8. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. It is settled principles of law that any order visiting civil consequences cannot be passed without affording any opportunity of hearing and without following the cardinal principles of natural justice. Admittedly, the petitioner was getting pay-scale from 01.01.1996 till the date of retirement i.e. 31.01.2016 for more than 20 years and after lapse of several years, the respondents have passed the recovery order and reduced the scale of the petitioner and that too without affording any opportunity of hearing to the concerned employee/petitioner. There is no any misrepresentation on the part of the petitioner for getting the said pay-scale since 01.01.1996 and neither any fraud has been played by him. There is no any misrepresentation on the part of the petitioner for getting the said pay-scale since 01.01.1996 and neither any fraud has been played by him. The issue has already been set at rest in catena of decisions rendered by the Hon''ble Apex Court as well as by the Hon''ble High Courts. 9. The Hon''ble Apex Court in case of Syed Abdul Qadir Vs. State of Bihar , (2009) 3 SCC 475 , has clearly held that as under:- "If the payment had been made for a long duration of time, it would be iniquitous, must really be recovery. Interference because an action is iniquitous to make any perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India". 10. The Hon''ble Apex Court was of the view that "if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee". 11. In this context, similar view was reiterated in case of Shyam Babu Verma Vs. Union of India , (1994) 2 SCC 521 and held that as under:- "The higher pay scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984 i.e. after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay scale would not be just and proper. Therefore, the Court was of the view that recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India". 12. The Hon''ble Apex Court same view was reiterated in case of B.J. Akkara Vs. Government of India , (2006) 11 SCC 709 . Considering the propositions laid down in several cases, the Hon''ble Apex Court in its Judgment reported in [ State of Punjab & Ors. Vs. Rafiq Masih (White Washer) , (2015) 4 SCC 334 ] has enumerated wherein certain conditions and restrained the employer from making recovery. Government of India , (2006) 11 SCC 709 . Considering the propositions laid down in several cases, the Hon''ble Apex Court in its Judgment reported in [ State of Punjab & Ors. Vs. Rafiq Masih (White Washer) , (2015) 4 SCC 334 ] has enumerated wherein certain conditions and restrained the employer from making recovery. Para -18 of the said judgment is reproduced herein below:- "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, summarize 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. (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." 13. This view has also been reiterated by the Hon''ble Apex Court in case of Kusheshwar Nath Pandey Vs. State of Bihar & Ors. , (2013) 12 SCC 580 , wherein it has been held that benefits given long back cannot be reviewed and altered to the disadvantage of the employees even if it has wrongly been given and there is no misrepresentation on behalf of the employees. State of Bihar & Ors. , (2013) 12 SCC 580 , wherein it has been held that benefits given long back cannot be reviewed and altered to the disadvantage of the employees even if it has wrongly been given and there is no misrepresentation on behalf of the employees. Thus, from perusal of the judgments, referred to above, it emerges that if excess payment is not made on account of any misrepresentation or fraud on the part of the employees, and such payment was made by the employer by applying wrong principle for calculating such allowances on the basis of particular interpretation which is subsequently found erroneous, recovery of such excess payment cannot be made. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncements, the impugned order dated 28.01.2016 (Annexure-13 series), 14.01.2016 (Annexure-12) and 29.04.2016 (Annexure-16) are hereby quashed and set aside. As the petitioner has already been retired, if any amount has been recovered, the same should be refunded to him, within a period of eight weeks from the date of reciept of a copy of this order and if amount has not been recovered, the same shall not be recovered in future. Further the respondents are directed to fix the pension of the petitioner in light of pay fixed earlier vide letter dated 06.09.2014. Resultantly, the writ petition stands allowed.