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2022 DIGILAW 472 (JHR)

James Xess v. State of Jharkhand

2022-04-19

S.N.PATHAK

body2022
JUDGMENT : S.N. PATHAK, J. 1. Heard the parties. 2. The petitioner has approached this Court for quashing of the letter dated 24.04.2019 (Annexure-6) issued by the Accountant General, whereby and whereunder, the respondents have passed the order of recovery from the pension of the petitioner and the same is being deducted per month regularly on the ground that fixation of pension of the petitioner has wrongly been done in excess. Consequent thereto, for a direction upon the respondents to refund the deducted amount. 3. The case of the petitioner lies in a narrow compass. The petitioner was working as an Assistant Teacher in the R.C. Primary School, Saindih, Sikirya Tanr, Simdega. The petitioner was initially appointed to the post of Assistant Teacher against the sanctioned post by the Managing Committee of the School vide letter dated 22.01.1985 and joined on 31.01.1985, which was accepted by the District Superintendent of Education of the then Gumla District. The said school is a recognized Minority School, approved by the State Government. After appointment, the petitioner was working diligently and to the utmost satisfaction of the respondents and there was no complaints whatsoever from the authorities. It is specific case of the petitioner that on allegation of unauthorized absence, the petitioner was show caused and later on removed from the service vide order dated 02.11.2001 by the respondents. Aggrieved by the same, the petitioner had earlier approached this Court, by way of filing a writ petition being W.P. (S) No. 4751 of 2009, which was allowed vide order dated 11.12.2015. In compliance of the order of this Court, the pension of the petitioner was fixed and the petitioner started receiving his pension w.e.f. 07.11.2001. It is specific case of the petitioner that after lapse of several year, the respondent-Accountant General vide impugned letter dated 24.04.2019 have passed the order of recovery from the pension of the petitioner as fixation of pension has wrongly been done in excess. Aggrieved by the same, the petitioner has been constrained to knock the door of this Court. 4. Mr. Arshad Hussain, learned counsel for the petitioner assails the impugned order on the ground that same has been issued after a long delay and even without any show cause notice or any proceeding against the petitioner. Aggrieved by the same, the petitioner has been constrained to knock the door of this Court. 4. Mr. Arshad Hussain, learned counsel for the petitioner assails the impugned order on the ground that same has been issued after a long delay and even without any show cause notice or any proceeding against the petitioner. He further submits that recovery from the pensionary benefits/pension amounts to civil and evil consequences and as such, any order visiting with civil or evil consequence, the cardinal principles of natural justice has to be adhered to and in absence of the same, the impugned order is nonest in the eyes of law and the same is liable to be quashed and set aside. 5. On the other hand, counter-affidavit has not been filed on behalf of the respondents. Mrs. Richa Sanchita, learned counsel for the respondent-A/G as well as Mr. Gaurang Jajodia, learned counsel for the respondents, referring to the counter-affidavit, submits that it is always open for the respondents to correct the mistake, if any, and since the fixation of pension of the petitioner has wrongly been done in excess, it is open for the respondents to correct the same. However, it has been fairly submitted and admitted that before issuance of impugned order of recovery from the pensionary benefits, the petitioner was never put to any show cause or notice. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that admittedly, the petitioner was never issued show cause or put to notice before issuance of impugned order, which is not tenable in the eyes of law. The order of recovery from retiral benefits shall be issued after following the principles of natural justice, but in the instant case, same has not been done. Any order visiting with civil or evil consequences, principles of natural justice has to be adhered to and in absence of the same, impugned order is not tenable in the eyes of law. Further, the Accountant General has issued the order of recovery, but the Accountant General is not empowered to issue such order. Any order visiting with civil or evil consequences, principles of natural justice has to be adhered to and in absence of the same, impugned order is not tenable in the eyes of law. Further, the Accountant General has issued the order of recovery, but the Accountant General is not empowered to issue such order. Similar issue fell for consideration before this Court in case of Smt. Normi Topno vs. State of Jharkhand and Others, 2006 (2) JCR 108 , wherein the Full Bench of this Court has clearly held that any order causing prejudice to a person cannot be passed without giving an opportunity of hearing and also held that Accountant General is not empowered to issue order of recovery. It is always open for the respondents to make corrections, if any fixation has been done wrongly, but without notice, the order of recovery from retiral benefits is impermissible in the eyes of law. 7. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, the impugned order dated 24.04.2019 is liable to be quashed and set aside and same is hereby quashed and set aside. As a quashment of impugned order, the respondents are directed to refund the amount, which has already been recovered from the pension of the petitioner, within a period of six weeks from the date of receipt of a copy of this order. However, it is made clear that it is open for the respondents to make correction in fixation of pension of the petitioner, in accordance with law. 8. With the aforesaid directions, this writ petition stands disposed of.