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2024 DIGILAW 332 (JHR)

Subodh Chandra Mahato v. State of Jharkhand

2024-03-21

RAJESH SHANKAR

body2024
JUDGMENT : 1. The present writ petition has been filed for quashing/setting aside the office order as contained in memo no.130 dated 6th August, 2020 issued by the Special Land Acquisition Officer, Subarnrekha Project, Chandil- respondent no.3, whereby the said respondent has passed an order for recovery of Rs.5,13,664/-. Further prayer has been made for issuance of direction upon the respondents to refund the said amount, which has already been deducted from the salary of the petitioner. 2. The main submission of learned counsel for the petitioner is that the recovery of Rs.5,13,664/- sought to be made by the impugned order dated 6th August, 2020 is illegal, as there was no misrepresentation on the part of the petitioner in receiving the said amount. It is submitted that in view of memo no.151 dated 08.11.2018 issued by the Finance Department, Government of Jharkhand, if any excess payment is wrongly made to any employee without any fraud and misrepresentation made on the part of such employee, then the said payment shall not be recovered in the following situations: - (i) if the employee belongs to Class III and Class IV service (or Group ‘C’ and Group ‘D’ service). (ii) ------ (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) ------ 3. It is further submitted that the petitioner has already retired from service on 30th June, 2022 on attaining the age of superannuation. Since prior to the date of his retirement, the said amount of Rs.5,13,664/- has already been recovered from the salary of the petitioner, the respondent authorities may be directed to refund the same to him with appropriate interest. 4. Mr. Ajit Kumar, learned A.C. to G.A.V appearing on behalf of the respondents, while relying on the counter affidavit filed on behalf of the respondent nos.2 and 3, submits that the petitioner was posted as Typist on 14th June, 1991 and, accordingly, first ACP was due to the petitioner on 14th June, 2003 i.e. 12 years after his joining in service. Similarly his 2nd and 3rd MACP were also due on 14th June, 2011 and 14th June, 2021, respectively. However, as per the norms of the service, the petitioner should have qualified in the departmental accounts examination to become eligible for availing the benefit of ACP/MACP. Similarly his 2nd and 3rd MACP were also due on 14th June, 2011 and 14th June, 2021, respectively. However, as per the norms of the service, the petitioner should have qualified in the departmental accounts examination to become eligible for availing the benefit of ACP/MACP. It has been clearly mentioned in Clause 5(X) of Circular no.1779 dated 21st May, 2014 issued by the Finance Department that if any employee qualifies his departmental accounts examination beyond due time, in that situation the concerned authority shall have the full right to recover the amount paid to an employee in excess of his salary. In the present case, the petitioner could not qualify the departmental accounts examination on due time. However, he qualified the said examination on 25th August, 2011 i.e. after eight years two months and eleven days. Therefore, the concerned authority has not done anything wrong by deducting the amount paid to him during the period 25th August, 2011 to 1st July, 2020. 5. It is further submitted that at the time of fixation of salary on account of grant of ACP/MACP, the petitioner had given an undertaking that if there is any misrepresentation of fact made by him, the amount paid to him in excess of his normal salary would be refunded by him. Therefore, there is no question of any illegality in deducting the excess amount paid to the petitioner. Hence, the impugned order passed by the respondent no.3 is not in violation of the resolution as contained in memo no.151 dated 8th November, 2018. 6. Having heard learned counsel for the parties and on perusal of the materials available on record, it appears that the petitioner has not questioned the decision of the respondent authorities with respect to his entitlement to get the benefit of ACP/MACP from particulate dates, rather his prayer in the present writ petition is confined to quashing of the office order as contained in memo no.130 dated 6th August, 2020, whereby the respondent no.3 has directed for recovery of Rs.5,13,664/- from the petitioner’s salary. 7. The said issue is no more res integra. The Hon’ble Supreme Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors., reported in (2015)4 SCC 334 , has held as under:- “18. 7. The said issue is no more res integra. The Hon’ble Supreme Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors., reported in (2015)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 hereinabove, we may, as a ready reference, summarise 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 (or 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.” 8. In the aforesaid case, the Hon’ble Supreme Court has referred some situations where recovery by the employer has been held impermissible in law and one of those is that the recovery of excess payment cannot be made from Class-III and IV employees. According to learned counsel for the petitioner, the said amount of Rs.5,13,664/- has already been recovered by the respondents. 9. Admittedly, the petitioner is Class-III employee and there has been no fraud or misrepresentation on his part in receiving the amount which has been recovered vide impugned office order dated 6th August, 2020. Moreover, the amount recovered from the petitioner includes the payment made five years before the order of recovery was issued. 9. Admittedly, the petitioner is Class-III employee and there has been no fraud or misrepresentation on his part in receiving the amount which has been recovered vide impugned office order dated 6th August, 2020. Moreover, the amount recovered from the petitioner includes the payment made five years before the order of recovery was issued. Considering the ratio laid down by the Hon’ble Supreme Court in the case of Rafiq Masih (Supra.) as well as memo no.151 dated 8th November, 2018, the said office order dated 6th August, 2020 cannot be sustained in law and the same is quashed and set aside. 10. Since the petitioner has already retired from service, the respondents are directed to refund the said amount to the petitioner within eight weeks from the date of receipt/production of a copy of this order. 11. The writ petition is, accordingly, disposed of.