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Jharkhand High Court · body

2019 DIGILAW 1704 (JHR)

Ranjit Bihari Prasad v. State of Jharkhand

2019-09-25

S.N.PATHAK

body2019
JUDGMENT : Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the impugned orders dated 28.02.2015 and 14.03.2015, issued by the respondents by which an amount of Rs.2,36,421/- has been directed to be recovered/ adjusted from the retiral benefits of the petitioner. 3. The case of the petitioner lies in a narrow compass. Petitioner was appointed on 24.06.1981 to the post of Peon in Road Construction Department and since then, he has been continuously performing his duties to the satisfaction of the authorities concerned. Subsequently, petitioner was promoted to the post of Correspondence Clerk w.e.f. 07.09.1987. The petitioner was given the benefits of 1st ACP w.e.f. 07.09.1999 vide order dated 28.02.2004 and his pay-scale was fixed in the scale of Rs.4500-125-7000/-. Further, the petitioner was considered and granted the benefits of 2nd and 3rd MACP w.e.f. 02.05.2010 and 24.06.2011 respectively. After serving for a period of almost of 33 years, petitioner superannuated from service on 28.02.2015. It is the specific case of the petitioner that on the date of his retirement i.e. on 28.02.2015, the respondent-authorities have passed an order of scrutiny of pay-fixation and subsequently, vide order dated 14.03.2015, an amount of Rs.2,36,421/- has been directed to be recovered/ adjusted from the retiral benefits of the petitioner. The petitioner aggrieved by the recovery/ adjustment of the said amount he has been constrained to knock the door of this Court. 4. Mr. Deepak Kumar Sinha, learned counsel appearing for the petitioner strenuously urges that the impugned order is not tenable in the eyes of law. Mr. Sinha further argues that without affording any opportunity of hearing and without issuance of any show-cause, the impugned orders have been passed, which is in complete violation of principles of natural justice. Learned counsel further argues that any order visiting with civil or evil consequences cannot be passed without following the principal of audi alteram partem. To buttress his arguments, learned counsel places heavy reliance on the following judgments of the Hon’ble Apex Court: (I) Kusheshwar Nath Pandey Vs. State of Bihar & Ors., [(2013) 12 SCC 508]; and (II) State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors. [(2014) 4 SCC 334]. 5. Per contra, counter-affidavit has been filed. Mr. Mukesh Kumar Sinha, learned Sr. SC-II assisted by Mr. State of Bihar & Ors., [(2013) 12 SCC 508]; and (II) State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors. [(2014) 4 SCC 334]. 5. Per contra, counter-affidavit has been filed. Mr. Mukesh Kumar Sinha, learned Sr. SC-II assisted by Mr. Shadab Bin Haque, learned counsel appearing for the respondent-State justifying the impugned orders argues that if any illegality has been committed by the Department, it is free to rectify the same. In the instant case excess payment has been made to the petitioner inadvertently and as such, every right is reserved with the Department to rectify the mistake which has been committed inadvertently. The petitioner had cleared the departmental examination in the year 2011 and as such, any benefit given to him prior to 2011, without passing the departmental examination, is not sustainable and rightly the Department has adjusted the amount though from his retiral benefits and as such, there is no illegality in the impugned orders. 6. Be that as it may, having heard the rival submissions of the parties and upon perusal of the documents brought on record, this Court is of the considered view that the case of the petitioner needs consideration. Admittedly, the petitioner was granted the benefits of ACP/MACP on 25.08.2010 and 24.06.2011 and it is also not in dispute that petitioner subsequently cleared the departmental examination. Petitioner completed 50 years of age on 11.02.2005 and thereafter, had requested for exemption from clearing the departmental examination. Though, nothing has been brought on record to show that any representation was made by the petitioner but the said fact was also not disputed by the respondents. Petitioner is a Class-III employee and had superannuated from the serviced on 28.02.2015. The respondents justifying the impugned orders have taken a stand that intimation was given to the petitioner on the date of his retirement that whatever benefits he has taken earlier was not in accordance with law. The arguments advanced by the learned counsel for the respondents is not acceptable to this Court in view of celebrated judgment of Hon’ble Apex Court in case of State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors. The arguments advanced by the learned counsel for the respondents is not acceptable to this Court in view of celebrated judgment of Hon’ble Apex Court in case of State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors. (supra), whereby, the Hon’ble Apex Court, taking into consideration the cases of 3rd and 4th grade employees, has clearly observed that any recovery is impermissible in case of 3rd and 4th grade employees even prior to one year of their retirement. In the instant case, the order of recovery from the retiral benefits was passed on the date of retirement of the petitioner, which is impermissible in the eyes of law. The relevant para of the judgment passed in case of State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors. (supra), 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 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.” 7. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the impugned orders dated 28.02.2015 and 14.03.2015 are not tenable in the eyes of law and are hereby quashed and set aside. 8. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the impugned orders dated 28.02.2015 and 14.03.2015 are not tenable in the eyes of law and are hereby quashed and set aside. 8. Needless to say any amount recovered from the retiral benefits of the petitioner shall be refunded to him within a period of six weeks from the date of receipt/ production of a copy of this order. 9. With the aforesaid observations and direction, the instant writ petition stands allowed. 10. Resultantly, pending I.As, if any also stands disposed of.