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2023 DIGILAW 325 (JHR)

State of Jharkhand v. Jitendra Kumar Singh

2023-03-15

ANANDA SEN, S.K.MISHRA

body2023
ORDER : (Ananda Sen, J.) 1. This intra-Court appeal under Clause 10 of the Letters Patent is filed by the State of Jharkhand, challenging the order/judgment dated 14.6.2021 passed in W.P.(S) No. 4151 of 2017, whereby, the learned Single Judge has allowed the writ petition, setting aside order dated 24.3.2017 passed by the Under Secretary, Department of Water Resources, Jharkhand, whereby, the Accountant General (A&E) had been instructed to deduct four increments from the salary of the petitioner, admissible w.e.f. 1.7.2012 and on the basis of the same, the pension was directed to be revised and also the salary paid in excess was directed to be deducted form the pension of the writ petitioner to the extent of Rs.2,34,799/-. 2. The original writ-petitioner was appointed as a Junior Engineer on 2.2.1979 in the State of Bihar and retired from the post of Assistant Engineer on 31.1.2006. The last pay drawn by him was Rs.31,030/-in the grade pay of Rs.7600/-and basic salary of Rs.38,360/-plus other admissible allowances. The benefits of the first time bound promotion was extended to the writ petitioner with effect from 27.8.1990 and his pay scale was accordingly revised. On 2.4.2007, the Water Resources Department issued an order under which, the first ACP was allowed to the writ petitioner and his pay scale was again revised. The 2nd ACP was granted to him w.e.f. 2.2.2003 and the benefit of MACP was also granted to him w.e.f. 2.2.2009. Subsequently, the writ petitioner was promoted to the post of Assistant Engineer vide letter No. 2005 dated 20.4.2011. Thereafter, he superannuated on 31.1.2016. 3. The writ petitioner received all benefits of promotion and ACP, MACP, during his service tenure but after superannuation, vide Memo No. 1533 dated 24.3.2017, it was instructed to deduct an amount of Rs.2,34,799/-which has been drawn by the writ petitioner due to wrong fixation of pay w.e.f. 1.7.2012, as the petitioner has not passed a departmental examination. The aforesaid order was challenged before the learned Single Judge in WPS No. 4151 of 2017. The learned Single Judge after considering the submissions of the parties and considering the judgments in the case of Laxman Prasad Gupta Vs. State of Jharkhand, reported in 2007(4) JLJR 459 and Smt. Normi Topno Vs. State of Jharkhand, reported in 2007 (4) JLJR 466 and State of Punjab & Rs. Vs. The learned Single Judge after considering the submissions of the parties and considering the judgments in the case of Laxman Prasad Gupta Vs. State of Jharkhand, reported in 2007(4) JLJR 459 and Smt. Normi Topno Vs. State of Jharkhand, reported in 2007 (4) JLJR 466 and State of Punjab & Rs. Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334 , allowed the writ petition vide order dated 14.6.2021 quashing the order of recovery and directed that the pension should be paid on the last pay scale drawn by the writ petitioner at the time of retirement. Challenging the said order, this appeal has been filed. 4. We have heard the learned counsel for the appellant-State and the respondent and have perused the writ petition and the memo of appeal along with documents, filed therein. 5. Learned counsel for the State/appellant submits that the pay scale of the writ petitioner was wrongly fixed in the year 2012 and when the matter was placed before the Accountant General (A&E), Jharkhand for fixation of pension, the Accountant General directed to recover the amount of Rs.2,34,799/-from the pension of the petitioner. Counsel for the State further submits that the petitioner has not passed one departmental examination which was necessary, thus the order of recovery was passed. On query, counsel for the State admits that there is no misrepresentation or fraud committed by the writ petitioner. 6. Learned senior counsel for the writ-petitioner (respondent herein) submits that the order passed by appellant-State to recover an amount of Rs.2,34,799.00 is bad, as the same suffers from violation of principle of natural justice. He further submits that before passing the order of recovery, the writ petitioner was neither noticed nor a show cause was called for, from him. So far as passing of departmental examination is concerned, he also submits that the writ petitioner had cleared all the examinations, but he was disqualified in one paper and at that time he had already attained the age of 50 years, thus the writ petitioner represented the appellant-respondent on 1.9.2012 for exempting him from the examination, taking into consideration the Departmental Rule. The said representation was never disposed of by the State, therefore, the appellant-State cannot take the benefit of their own in action of not disposing the representation. 7. The said representation was never disposed of by the State, therefore, the appellant-State cannot take the benefit of their own in action of not disposing the representation. 7. After hearing the parties, we find that the writ petitioner was given the benefit of ACPs and MACP. He superannuated on 31.1.2016 and after superannuation, an order was passed to recover an amount of Rs.2,34,799 from the pension of the writ petitioner. The petitioner had not passed one paper of departmental examination but at that time, he had already attained 50 years. The writ petitioner applied for exemption from examination as per rules, but the appellant-State sat over his application and did not pass any order on the said application/representation. Only after superannuation of the writ petitioner, an order was passed by the State authority to recover an amount of Rs.2,34,799/-on the ground that there was error in granting the benefit of ACPs and MACP to the writ petitioner, as he had not passed the departmental examination. Once the petitioner had applied for grant of exemption, the said application should have been disposed by the State, either way. Admittedly, the State-authority did not dispose the said application. As per the departmental Rule, the petitioner could have been exempted from examination, as he had already attained his age of 50 years, but the appellant-State deprived the writ petitioner from getting the said benefits. In that view, an illegality has been committed and now the appellant-State is trying to take the benefit of their inaction. The appellant State cannot be allowed to take the benefit of their own inaction. 8. Further, it is an admitted case that there was no misrepresentation or fraud committed by the writ petitioner-respondent in fixation of the scale. It is also admitted that the writ petitioner has already superannuated and the order of recovery was passed after his superannuation. 9. the Hon'ble Supreme Court in the case of Thomas Daniel Vs. State of Kerala and Others, reported in 2022 SCC OnLine SC 536 in paragraph 9 has held as under; “9. …............... This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. State of Kerala and Others, reported in 2022 SCC OnLine SC 536 in paragraph 9 has held as under; “9. …............... This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.” Further in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others, reported in (2015) 4 SCC 334 , the Hon'ble Supreme Court in paragraph 18 has also 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 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 (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. (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. The Hon'ble Supreme Court in the aforesaid judgment has categorically held that no recovery can be made from retired employees. Admittedly the writ petitioner is a retired employee and this order of recovery is passed after his superannuation. 10. It is admitted fact that before the order of recovery was passed, no opportunity of hearing was given to the writ petitioner, thus the principle of natural justice has been violated.. Without giving any opportunity of hearing to the writ petitioner, the appellant-State could not have ordered for recovery of the amount. 11. Considering all these facts, the learned Single Judge has allowed the writ petition by the impugned order/judgment. We find no illegality in the impugned order/judgment dated 14.6.2021 passed by the learned Single Judge in WPS No. 4151 of 2017. 12. Accordingly, this L.P.A. is dismissed 13. No order as to costs.