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2024 DIGILAW 413 (JHR)

Dilip Kumar Singh v. State of Jharkhand

2024-04-16

RAJESH SHANKAR

body2024
ORDER : 1. The present writ petition has been filed for quashing Office Order No. 197/2016 passed by the respondent no. 3 the Principal District & Sessions Judge, Civil Court, Dhanbad, a copy of which has been communicated to the petitioner and other concerned authorities vide memo no. 1579-1582-G dated 21.04.2016 (Annexure-7 of the writ petition) issued under the signature of the respondent no. 4 the Registrar, Civil Court, Dhanbad, whereby a sum of Rs.2,82,337/- has been ordered to be recovered from the leave encashment amount of the petitioner stating that he has drawn excess salary of Rs.2,82,337/- during the period from 15.11.2000 till his date of retirement i.e., 29.02.2016 due to wrong fixation of pay scale in the previous years. Further prayer has been made for grant of monetary benefit of MACP in grade pay of Rs.4200/- to the petitioner which has been reduced to Rs.2800/- after his retirement. The petitioner has also prayed for issuance of direction upon the respondents to pay suitable interest over the amount of gratuity, leave encashment, arrears of 6th pay revision, pension as well as other amount of retiral dues besides damage and cost of litigation for harassing the petitioner by withholding payment of his legitimate dues. 2. Learned counsel for the petitioner submits that the petitioner was duly appointed by the competent authority as ‘Assistant’ in the Civil Court, Dhanbad on 11.12.1982. His date of birth is 10.02.1956 and he accordingly retired from service on 29.02.2016 from Civil Court, Dhanbad on attaining the age of superannuation. The petitioner was not granted any promotion during his entire service period of more than 33 years. Though he was granted financial upgradations under the ACP Scheme vide Office Order No. 172/98 dated 19.08.1998 and letter no. 498 dated 22.02.2011 issued by the District & Sessions Judge, Dhanbad, however, the Law (Judicial) Department, Government of Jharkhand, Ranchi returned his service book without confirming the said financial upgradations stating that there was no entry in his service record regarding passing of the departmental examination as required under the Bihar Civil Court Staff (Class III and Class IV) Rules, 1992. 3. The petitioner represented the respondent no. 3 on 27.08.2008 through the respondent no. 4 requesting to grant the benefit of ACP after exempting him from passing the departmental examination on attaining the age of 50 years on 10.02.2006 in pursuance of circular no. 3. The petitioner represented the respondent no. 3 on 27.08.2008 through the respondent no. 4 requesting to grant the benefit of ACP after exempting him from passing the departmental examination on attaining the age of 50 years on 10.02.2006 in pursuance of circular no. 11691 dated 09.11.1983 issued by the Department of Personnel and Administrative Reforms of the erstwhile Government of Bihar. Thereafter, the petitioner was granted the 1st A.C.P. with effect from 09.08.1999 in the pay scale of 5000-8000 by virtue of Office Order No. 175/2010 dated 30.03.2010 issued under the signature of District & Sessions Judge, Dhanbad. Further, vide Office Order No. 2/2016 as contained in memo no. 6-7-G dated 04.01.2016 issued under the signature of the respondent no. 3, the petitioner was exempted from passing the departmental examination and the benefit of 1st MACP was granted to him with effect from 30.03.2010 fixing his pay in the pay band of 5200-20,200 and grade pay of Rs.2800/. 4. Hence, the grade pay of the petitioner was reduced to Rs.2800/- from Rs.4200/- without communicating any reason to him. Subsequently, after retirement of the petitioner on 29.02.2016, a sum of Rs.2,82,337/- was ordered to be recovered from his leave encashment amount vide Office Order No. 197/2016 as contained in memo no. 1579-1582-G dated 21.04.2016 issued under the signature of the respondent no. 3 stating that the petitioner had drawn excess salary of Rs.2,82,337/- during the period from 15.11.2000 till his retirement due to wrong fixation of pay scale in the previous years. 5. It is further submitted that similarly situated co-employee of Civil Court, Dhanbad, namely, Anil Kumar Sinha had filed a writ petition being W.P. (S) No. 2734 of 2017 against illegal recovery of certain amount from his retiral dues and a co-ordinate Bench of this Court vide order dated 11.07.2022 while relying on the judgment rendered by the Hon’ble Supreme Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. (2015) 4 SCC 334 , quashed the order of recovery and ordered to refund the amount recovered from him with further direction to rectify the mistake committed in pay fixation as well as to revise his pension in accordance with law. 6. Vs. Rafiq Masih (White Washer) & Ors. (2015) 4 SCC 334 , quashed the order of recovery and ordered to refund the amount recovered from him with further direction to rectify the mistake committed in pay fixation as well as to revise his pension in accordance with law. 6. It is also submitted that non-passing of the departmental examination cannot be a ground for refusing/cancelling the benefit of Assured Career Progression Scheme to which an employee is legally entitled to. The respondents have no authority to recover Rs.2,82,337/- from the leave encashment amount of the petitioner after his retirement from service. The impugned order is illegal, arbitrary and against the principles of natural justice, since the same has been passed without issuing prior notice or providing an opportunity of hearing to the petitioner, particularly when he has not committed any fraud or misrepresentation in getting the said financial benefit. The respondents are duty bound to pay interest on the amount of gratuity, leave encashment, pension as well as other amount of retiral dues payable to the petitioner besides damages and cost of litigation for harassing him by not providing due promotion. 7. It is further submitted that the respondents cannot recover any amount from leave encashment of the petitioner in the garb of excess payment as admittedly there is no fraud or misrepresentation on his part in receiving the said amount particularly when the District & Sessions Judge, Dhanbad as well as the Accountant General, Jharkhand, had duly sanctioned the same. 8. On the contrary, learned counsel for the respondents submits that the judgment rendered in the case of Anil Kumar Sinha (supra) is not a judgment in rem, rather it is in personam and as such, the same is not applicable in the case of the petitioner. The cause of action in the case of the petitioner had arisen for the first time in the year 2016 and the petitioner approached this Court after delay of more than 6 years. As such, the writ petition is liable to be dismissed on the ground of delay and laches on the part of the petitioner. The cause of action in the case of the petitioner had arisen for the first time in the year 2016 and the petitioner approached this Court after delay of more than 6 years. As such, the writ petition is liable to be dismissed on the ground of delay and laches on the part of the petitioner. Moreover, the petitioner cannot be given the benefit of the judgment rendered in the case of Anil Kumar Sinha (supra), as he did not challenge the order of recovery immediately after passing the said order, rather he was a fence-sitter and waited till passing of the judgment in the case of Anil Kumar Sinha (supra). 9. Heard learned counsel for the parties and perused the materials available on record. 10. The thrust of argument of learned counsel for the petitioner is that the impugned order of recovery from the leave encashment amount of the petitioner is in the teeth of the judgment rendered by the Hon’ble Supreme Court in the case of Rafiq Masih (supra). 11. I have perused the said judgment, paragraph no. 18 of which reads 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. (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. 12. In the aforesaid case, the Hon’ble Supreme Court has explained certain situations under which the recovery by the employer has been held impermissible in law. It has specifically been held that recovery of any payment mistakenly made cannot be recovered from the employees belonging to Group-C and Group-D service. Moreover, recovery from the retired employees or the employees who are due to retire within one year, has also been held to be impermissible. 13. In the case in hand, the petitioner was ‘Assistant’ in Civil Court, Dhanbad and thus was a Group-C employee. The recovery of alleged excess payment has been made from his leave encashment after retirement. Admittedly, the payment of excess amount has been mistakenly made to the petitioner and not due to any fraud or misrepresentation on his part. Thus, I find substance in the argument of learned counsel for the petitioner that the impugned order of recovery is not in accordance with law. 14. The argument of learned counsel for the respondents is that the petitioner was a fence-sitter and as such, he cannot claim the benefit of the judgment rendered in the case of Anil Kumar Sinha (supra). Learned counsel for the respondents in support of his argument puts reliance on the judgment rendered by the Hon’ble Supreme Court in the case of State of Uttar Pradesh & Ors. Vs. Arvind Kumar Srivastava & Ors. (2015) 1 SCC 347 . In the said case, the Hon’ble Supreme Court has held as under: 22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time-to-time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 15. I am of the view that the aforesaid judgment relied upon by learned counsel for the respondents is not applicable in the case of the petitioner in view of the law laid down in the case of Rafiq Masih (supra) to the effect that no recovery can be made from ‘Group-C’ and ‘Group-D’ employees in absence of any fraud or misrepresentation on their part in getting the said amount. 16. The plea of “doctrine of unjust enrichment” taken by learned counsel for respondents is also not applicable in the facts and circumstance of the present case. Their Lordships in the case of Rafiq Masih (supra) have held that if the effect of the recovery from the employee concerned is more unfair, more wrongful, more improper and more unwarranted than the corresponding right of the employer to recover the amount, then the same would be iniquitous or harsh or arbitrary. In such a situation, the employee's right would be outbalanced and, therefore, it would eclipse the right of the employer to recover. 17. In such a situation, the employee's right would be outbalanced and, therefore, it would eclipse the right of the employer to recover. 17. The petitioner has contended that the respondents had already sanctioned and paid the grade pay of Rs.4200/- to him by virtue of Office Order No. 175/2010 dated 30.03.2010, however, the same was subsequently reduced to Rs.2800/- vide Office Order No. 02/2016 dated 04.01.2016 without assigning any reason though it was admitted in the remarks column that the petitioner was exempted from passing the departmental examination on attaining age of 50 years. The respondents have failed to satisfy this Court as to why the grade pay of the petitioner was reduced from Rs.4200/- to Rs.2800/-. 18. Under the aforesaid facts and circumstance, the Office Order No. 197/2016 as contained in memo no. 1579-1582-G dated 21.04.2016 issued under the signature of the respondent no. 3 is hereby quashed. The respondents are directed to refund the amount of Rs.2,82,337/- to the petitioner which has been recovered from his leave encashment amount within four weeks from the date of passing of this order. The respondent authorities are further directed to rectify the mistake committed in the petitioner’s pay fixation and to revise his pension in accordance with law. 19. The writ petition is accordingly allowed.