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Jharkhand High Court · body

2019 DIGILAW 1741 (JHR)

Chandra Shekhar Singh v. State of Jharkhand

2019-10-15

S.N.PATHAK

body2019
JUDGMENT : 1. The petitioner has approached this Court with a prayer for a direction upon the respondents to pay the arrears of 6th Pay Revision and 7th Pay Revision with panel interest. Further prayer has been made for quashing the letter issued by the Superintendent of Police, dhanbad vide District Order No. 2136/15 contained in Memo No. 2183 dated 16.07.2015 by which the salary of the petitioner was modified for recovery of Rs. 1,61,894/- from the arrears of 6th Pay Revision of the petitioner on the ground of non passing of Hindi Noting and Drafting Examination. Further, prayer has been made to extend the benefits of Third ACP to the petitioner as per the Resolution No. 5207 dated 14.08.2002 of Finance Department. 2. The case of the petitioner lies in a narrow compass. The petitioner was initially appointed as a Constable in the year 1969 and on the basis of satisfactory service and seniority, he rose to the rank of Civil Zamadar. After serving the Department for almost 37 years of continuous service, he superannuated on 01.07.2007 from the District of Dhanbad. It is specific case of the petitioner that pursuant to the implementation of the 6th & 7th Pay Revision, his salary and pension have not been revised and also the benefits of third ACP has not been granted to him even after 30 years of continuous service. Aggrieved by the same, the petitioner has represented before the respondents. Pursuant thereto, the respondent No.4 modified the salary of the petitioner and order of recovery of Rs.1,61,894 has been issued vide District Order No. 2136 /15 contained in Memo No. 2183 dated 16.07.2015 on the ground that petitioner had not passed Hindi Noting & Drafting Examination during service period. Aggrieved by the same, the petitioner has been constrained to knock the door of this Court for redressal of his grievances. 3. Mr. Pradeep Kumar, learned counsel appearing for the petitioners strenuously urges that action of the respondents in issuing Memo No.2183 dated 16.07.2015 (Annexure-3) is wholly arbitrary, unjust and unsustainable in the eyes of law. Learned counsel further argues that while issuing the impugned order, a direction was given to recover the excess amount paid to the petitioner, ignoring the fact that there is no misrepresentation on the part of the petitioner. Learned counsel further argues that while issuing the impugned order, a direction was given to recover the excess amount paid to the petitioner, ignoring the fact that there is no misrepresentation on the part of the petitioner. The respondents cannot be allowed to recover the amount from the pensionary benefits as well as retiral benefits, after his retirement without issuance of any show cause notice or an opportunity of hearing and also without taking into consideration the Rule 43 B of Pension Rule and as such, the impugned order is liable to be quashed and set aside. To support his contention, learned counsel for the petitioners places heavy reliance on a reported judgment of Hon’ble Apex Court in case of State of Punjab & Ors. Vs. Rafiq Masih (Withwasher) & Ors., reported in (2015) 4 SCC 334 . Learned counsel further argues that the petitioner is also entitled for the benefits of 6th Pay Revision and 7th Pay Revision and also to fixation of his pension in revised pay-scale, gratuity and leave encashment as per his entitled. 4. Per contra, counter-affidavit has been filed. Learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that nothing has been brought on record to show that petitioner had passed Hindi Noting and Drafting Examination during his service period. As per the Police Manual Rule 678 (d) (i), the petitioner was required to clear Hindi Noting and Drafting Examination within one year from the date of his joining but till his retirement i.e. 30.06.2007, he has not passed the said examination and as such, rightly the respondents have issued the impugned order and as such, there is no illegality or infirmity in the impugned order. Learned counsel further argues that as per the Rules of MACP, the benefit of MACP is effective from 01.09.2008 while the petitioner has superannuated from the services on 30.06.2007 itself. 5. Be that as it may, having gone through the rival submissions of the parties and on perusal of records, this Court is of the considered opinion that the case of the petitioner needs consideration. From perusal of the records, it appears that the impugned order has been passed after 8 years of the retirement of the petitioner and also without giving any opportunity of hearing to the petitioner, which is not permissible in the eyes of law. From perusal of the records, it appears that the impugned order has been passed after 8 years of the retirement of the petitioner and also without giving any opportunity of hearing to the petitioner, which is not permissible in the eyes of law. Order of recovery could have been passed by initiation of proceeding under Section 43 (b) of the Pension Rules. The benefit, which the petitioner was drawing for 36 long years i.e. entire service career, cannot be subjected to modify or recovery without giving ample opportunity of hearing or without show cause. Any order visiting with civil or evil consequences, cannot be passed without affording ample opportunity of hearing to the concerned employees and also no document regarding misrepresentation, interpolation or manipulation was ever made on behalf of the petitioner neither it has been brought on record by the respondents and as such, the action of the respondents is not tenable in the eyes of law. The Hon'ble Apex Court in 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.” 6. (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.” 6. As cumulative effect of the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the impugned order at Annexure 17 i.e. order dated 16.07.2015 is fit to be quashed and set aside and same is hereby quashed and set aside. As a result of quashment of the impugned order, the Respondents are directed not to recover any amount from the pension of the petitioner and, if any amount has already been recovered, the same shall be refunded to him, in accordance with law, within a period of six weeks from the date of receipt/ production of a copy of this order. The respondents are further directed to pay arrears of 6th & 7th Pay Revision and other admissible dues and also to revise his pension, in accordance with law. So far as benefit of third MACP is concerned, the petitioner is not entitled for the same as the it came into existence in the year, 2008, whereas petitioner has been superannuated from the services in the year, 2007 itself. 7. Resultantly, writ petition stands allowed.