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2022 DIGILAW 684 (JHR)

Subal Chandra Mandal v. State of Jharkhand

2022-06-17

S.N.PATHAK

body2022
JUDGMENT : Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the order of recovery dated 14.03.2019, as entered in the service book of the petitioner, by which the respondents have illegally ordered to recover an amount of Rs.1,62,332/- for the period from 1.4.97 to 31.12.2014 after retirement of the petitioner. 3. As per the factual matrix, the petitioner was initially appointed and joined to the post of Assistant Teacher on 03.05.1983, vide memo No. 144-46, dated 16.04.1983 and served the department with full devotion and satisfaction to the respondent-authorities. Subsequently, the petitioner was terminated on 15.01.1985 and thereafter, he was re-appointed vide memo No. 9396-9619 dated 26.12.1995 and joining was accepted on 03.01.1996 and since then, he has been discharging his duties to the utter satisfaction of the respondents and after rendering long period of service, he superannuated on 31.03.18. It is the specific case of the petitioner that after superannuation, he has received all the benefits from 03.01.96 though his initial date of appointment was 3.5.83. During the service period, pay-scale of the petitioner was revised and he also received the revised pay-scale duly approved by the District Account Officer. Thereafter, one fine morning, his pay-scale was revised, deducting one increment on 10.03.2018 and approval was also accorded by the District Account Officer. The difference of amount which the petitioner had received in excess was ordered to be recovered from the post-retiral benefits of the petitioner, since he superannuated on 31.03.2018. The petitioner being aggrieved by the order of recovery, has knocked the door of this Court. 4. Mr. Din Dayal Saha, learned counsel appearing for the petitioner vociferously argues that the impugned order of recovery is not tenable in the eyes of law. Learned counsel assiduously submits that petitioner never misrepresented before the respondent-authorities nor any fraud was played by the petitioner. Since, he was entitled for the salary of the said period, hence, the same was paid to him. Learned counsel assiduously submits that petitioner never misrepresented before the respondent-authorities nor any fraud was played by the petitioner. Since, he was entitled for the salary of the said period, hence, the same was paid to him. Learned counsel further argues that the Hon’ble Apex Court in SLP(C) No. 11699 of 1990, while disposing of the said Appeal, clearly observed that “those teachers who have served in the past but there has been break in the service on account of termination, shall have the credit of past service both in regard of payment of salary and also for seniority and other service benefits.” In view of the observation and direction of the Hon’ble Supreme Court, the petitioner was rightly paid the salary of the said period. Learned counsel further argues that the respondents could not have passed order of recovery of the said amount that too after his retirement. As such, a direction be given to the respondents not to recover the amount, if not recovered till date and if the same has already been recovered, refund the recovered amount to the petitioner. 5. Mr. Prashant Kumar, learned counsel appearing for the respondent-State, vehemently opposes the contention of learned counsel for the petitioner and submits that though nothing has been brought on record to show that petitioner misrepresented or any fraud was played, the petitioner never brought this fact to the knowledge of the respondents that similarly situated persons were paid the amount and no order of recovery was passed against them. Learned counsel very fairly submits that in view of the order passed by the Hon’ble Apex Court in case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors., reported in (2015) 4 SCC 334 , the respondents cannot recover amount from a retired employee. Admittedly, the order of recovery has been passed after retirement of the petitioner, the same is not sustainable in the eyes of law. 6. Be that as it may, having gone through the rival submissions of the parties across the bar, this Court is of the considered opinion that the case of the petitioner needs consideration. Admittedly, the order of recovery has been issued after retirement of the petitioner. The petitioner retired on 31.03.2018 and the order of recovery has been passed on 14.03.2019. 7. Admittedly, the order of recovery has been issued after retirement of the petitioner. The petitioner retired on 31.03.2018 and the order of recovery has been passed on 14.03.2019. 7. The Hon’ble Supreme Court in the case of Syed Abdul Qadir v. State of Bihar, reported in (2009) 3 SCC 475 , has held as under : "Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." In case of Chandi Prasad Uniyal and Ors. vs. State of Uttarakhand and Ors., reported in (2012) 8 SCC 417 , the Hon’ble Apex Court has held as under : "We may in this respect refer to the judgment of two-Judge Bench of this Court in Col. B.J. Akkara (retd.) case (supra) where this Court after referring to Shyam Babu Verma case, Sahib Ram case (supra) and few other decisions held as follows: Such relief, restraining recovery back of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery." 8. Further, the Hon’ble Apex Court in case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. (supra), has been pleased to enumerate the instances relating to recovery of amount paid in excess then their entitlement without fault of the recipients. The relevant para of the said judgment is quoted 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. (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." 9. Since the petitioner has not misrepresented or played fraud and the excess payment has been made by the employer under misconception, and further, since the similarly situated persons have already been extended the benefits of the said period, the order of recovery is fit to be quashed and set aside. The stand of the petitioner is also fortified by the observations made by the Hon’ble Apex Court in SLP(C) No. 11699 of 1990. 10. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncement, the order of recovery dated 14.03.2019, is not tenable in the eyes of law and is hereby quashed and set aside. Needless to say that if any amount has been recovered/ adjusted from pension or gratuity, the same should be refunded to the petitioner within a period of eight weeks from the date of receipt/ production of a copy of this order and if the amount has not been recovered, the same shall not be recovered in future. 11. Before parting with the order, let it be made clear that if the other similarly situated persons, who were terminated and thereafter, reinstated, in their cases if the amount of pension has been refixed/ revised after quashment of the order of recovery by the Hon’ble Apex Court, the same ratio shall also apply in the case of present petitioner. It goes without saying that the payment of revised pension shall be started forthwith. 12. With the aforesaid observations and directions, the writ petition stands allowed.