Jharkhand High Court
The State Of Jharkhand vs Ranjit Bihari Prasad on 21 July, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.363 of 2020
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1. The State of Jharkhand.
2. Executive Engineer, Road Division, Govt. Jharkhand,
having its office at Morabadi, P.O. - G.P.O. Ranchi, P.S. -
Kotwali, District - Ranchi, Jharkhand.
3. The Principal Secretary, Department of Road
Construction, Government of Jharkhand, P.O. - Dhurwa,
P.S. - Hatia, Dist. Ranchi.
4. The Chief Engineer, Department of Road Construction,
Govt. of Jharkhand, P.O. G.P.O, P.S. Kotwali, Ranchi.
5. The Superintending Engineer, the Department of Road
Construction, Ranchi Circle, P.O. - G.P.O. Ranchi, P.S. -
Kotwali, Ranchi. ... ... Appellants/Respondents
Versus
Ranjit Bihari Prasad, S/o Late Rajeshwari Prasad, R/o- Raj
Shri Aryapuri, Road No.-2, Ratu Road, P.O. - Hehal, P.S. -
Sukhdeonagar, Dist - Ranchi.
... ... Respondent/Petitioner
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellants : Mrs. Vandana Singh, Sr. S.C.-III
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ORAL JUDGMENT
Order No.06 : Dated 21st July, 2022 I.A. No.4724 of 2022 This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 455 days in preferring this Letters Patent Appeal.
2. Heard the appellants.
3. Having regard to the averments made in the application and submissions made on behalf of the appellants, we are of the view that the appellants were prevented from sufficient cause in filing the appeal within the period of limitation. As -2- such, the delay of 455 days in preferring the appeal is hereby condoned.
4. I.A. No. 4724 of 2022 stands allowed.
L.P.A. No.363 of 2020
5. The instant appeal, preferred under Clause 10 of the Letters Patent, is directed against the order/judgment dated 25.09.2019 passed by learned Single Judge of this Court in W.P.(S) No.2526 of 2017 whereby and whereunder orders dated 28.02.2015 and 14.03.2015 issued by the respondents by which an amount of Rs.2,36,421/- has been directed to be recovered/adjusted from the retiral benefit of the petitioner, have been quashed and set aside.
6. Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated, read as under :-
The writ petitioner was appointed on 24.06.1981 to the post of Peon in Road Construction Department. He was promoted to the post of Correspondence Clerk w.e.f.
07.09.1987. The writ petitioner was given the benefits of 1st ACP w.e.f. 07.09.1999 vide order dated 28.02.2004 and his pay-scale was fixed in the scale of Rs.4500-125-7000/-.
Further, the petitioner was considered and granted the benefits of 2nd and 3rd MACP w.e.f. 25.08.2010 and 24.06.2011 respectively and was granted the aforesaid benefit with effect from the aforesaid date. But, after serving for a -3- period of almost of 33 years, when the writ petitioner superannuated from service on 28.02.2015, the respondent authorities passed an order of scrutiny of pay-fixation and in consequence thereof vide order dated 14.03.2015, an amount of Rs.2,36,421/-has been directed to be recovered/ adjusted from the retiral benefits of the writ petitioner.
The writ petitioner, being aggrieved with the said decision of the authority, has filed writ petition before this Court being W.P.(S) No.2526 of 2017 by taking the ground that the aforesaid order has been issued without providing an opportunity of hearing as also there cannot be any recovery/adjustment from the retiral dues since there is no misrepresentation on the part of the writ petitioner in getting the benefit of upgradation in pay-scale under the scheme.
The State took the plea before the learned Single Judge that since the upgradation in pay-scale has been granted beyond the entitlement of the writ petitioner, therefore, the decision has been taken to recover/adjust the excess amount and, as such, orders have been issued and there is no error in the impugned orders.
The learned Single Judge, after appreciating the argument advanced on behalf of the parties and considering the judgment rendered by Hon'ble Apex Court in State of Punjab and Others v. Rafiq Masih (White Washer) and Others [(2015) 4 SCC 334], has quashed the impugned orders, which is the -4- subject matter of the instant intra-court appeal.
7. Mrs. Vandana Singh, learned Sr. S.C.-III appearing for the State-appellants, has submitted that the learned Single Judge has not appreciated the fact that in the given case the ratio laid down by the Hon'ble Apex Court in State of Punjab and Others v. Rafiq Masih (White Washer) and Others (Supra) is not applicable but applying the said judgment in the facts of the given case, the impugned orders have been quashed, therefore, the order passed by the learned Single Judge requires interference.
She has taken the ground that the writ petitioner is not entitled for the upgradation in pay scale and since the financial benefit has been granted contrary to the entitlement of the writ petitioner and when it came to the notice of the authority, decision has been taken to recover/adjust the amount which cannot be said to be an improper decision of the State authority but without appreciating the fact about entitlement of the writ petitioner the orders passed by the administrative authority have been interfered with by the learned Single Judge and, as such, the same requires interference on this ground also.
8. This Court has heard learned counsel for the State appellants, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order.
9. The fact which is not in dispute in this case is that the -5- writ petitioner has been granted the benefit of upgradation of pay scale with effect from 25.08.2010 and 24.06.2011 respectively on the basis of Modified Assured Career Progression Scheme by granting 2nd and 3rd upgradation. But, on 28.02.2015, when the writ petitioner was to retire, an order was passed by taking decision about wrong fixation of the pay of the writ petitioner. Subsequent thereto, an order was passed on 14.03.2015 also whereby an amount of Rs.2,36,421/- has been directed to be recovered/adjusted from the retiral benefit of the writ petitioner.
The writ petitioner, being aggrieved with the same, has approached this Court invoking the jurisdiction conferred to this Court under Article 226 of the Constitution of India in which the learned Single Judge has interfered with the impugned decisions mainly on the ground of violation of principle of natural justice and applying the principle laid down in the case of State of Punjab and Others v. Rafiq Masih (White Washer) and Others (Supra).
The question of non-applicability of the judgment rendered by the Hon'ble Apex Court in State of Punjab and Others v. Rafiq Masih (White Washer) and Others (Supra) has been agitated as also the question of entitlement of the writ petitioner to get upgradation in the pay-scale has been raised.
10. We, in order to consider the aforesaid ground, deem it fit and proper first to consider the applicability of the judgment -6- rendered by Hon'ble Apex Court in State of Punjab and Others v. Rafiq Masih (White Washer) and Others (Supra).
Admittedly, the writ petitioner is a Class-III employee and the benefit of upgradation was granted to him, while the writ petitioner was in service i.e., on 25.08.2010 and 24.06.2011 respectively, so far as it relates to benefit of Assured Career Progression/Modified Assured Career Progression Scheme is concerned.
The respondent authorities scrutinized the decision of granting upgradation in pay-scale and in course thereof, it has been found that the writ petitioner has wrongly been given such benefit since he had not passed the departmental examination. However, the writ petitioner passed the first paper of departmental examination on 18.06.2009 and the second paper on 18.08.2010, as would appear from Annexures-F and G appended to the counter affidavit dated 13.10.2017.
The respondent authorities has revisited the upgradation of pay-scale granted in favour of the writ petitioner with effect from 07.09.1999 so far as it relates to first upgradation under Assured Career Progression Scheme and the 2nd and 3rd upgradation with effect from 25.08.2010 and 24.06.2011 and has taken decision to modify the entitlement of the writ petitioner to receive the aforesaid upgradation from the date when the writ petitioner has passed the departmental examination.
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However, the benefit of upgradation was granted much prior to the date of retirement, but the respondent authorities on the date when the writ petitioner attained the age of superannuation i.e., on 28.02.2015, has issued impugned order by which the decision has been taken to grant the benefit of upgradation from the date when he has passed the departmental examination and in consequence thereof, order for recovery/adjustment has been passed vide order dated 28.02.2015.
It is evident from the impugned order that such decision having civil consequences, has been passed without issuing any notice to the writ petitioner. The fact about non-observance of the principle of natural justice is not disputed by the learned counsel for the State since no such show cause notice has been appended to the counter affidavits filed on behalf of the respondent State in the writ petition.
It is settled position of law that when a decision is taken which is going to adversely affect the rights of the other party, the bare requirement to follow the principle of natural justice is mandatorily to be followed, but here no such opportunity has ever been provided.
Further, the writ petitioner, admittedly is the Class-III employee and on the day of his superannuation, the impugned order of refixation of pay-scale has been issued with a decision to recover/adjust the amount from the retiral benefits. -8-
The Hon'ble Apex Court in State of Punjab and Others v. Rafiq Masih (White Washer) and Others (Supra) has clearly laid down in paragraph 18 that recovery is to be made from which category of employee and in which circumstances. Paragraph 18 of the aforesaid judgment read as hereunder :-
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."
11. In the given facts of the case, the writ petitioner admittedly was a Class-III employee and the upgradation in pay-scale has -9- been granted but the same was recalled on the ground that he has not passed the departmental examination.
12. The Hon'ble Apex Court, by laying down the condition to make recovery, has directed not to recover from the employee if it comes under para 18(i), i.e., recovery from the employees belonging to Class III and Class IV service who are in service, or under para 18(ii) recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. Para 18(iii) speaks that 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.
13. It is the fact herein that when the writ petitioner was to retire on 28.02.2015 while working under Class-III service, the impugned decision of refixation of pay-scale was issued and in consequence thereof and order of recovery/adjustment from the retiral benefit was passed on 14.03.2015.
14. Therefore, according to our considered view, the decision of recovery has been made when the writ petitioner has retired from service. Therefore, the case of the writ petitioner falls under the category of para 18(ii), i.e., the recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery, will be applicable and in that view of the matter, since the case of the writ petitioner comes under the aforesaid category, there cannot be any recovery as has been directed to be
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recovered/adjusted vide order dated 14.03.2015.
This Court, therefore, is of the view on the basis of the facts of the given case that the judgment rendered by Hon'ble Apex Court in State of Punjab and Others v. Rafiq Masih (White Washer) and Others (Supra) is squarely applicable.
15. This Court has also considered the fact from a different angle by taking into consideration the decision impugned dated 14.03.2015 wherein it has been decided to recover/adjust the said amount from the retiral dues, the question arose that once the writ petitioner has retired from service, can the respondent authority be allowed to recover/adjust the amount from his retiral dues in absence of invoking any statutory rule to recover the said amount.
Herein, there is no provision under the Conduct Law that an amount of recovery can be effected from a retired employee, save and except, the recovery can only be made by resorting the provision of applicable Pension Rule, i.e., Rule 43(b) of the Jharkhand Pension Rules.
It appears from the record that the order of recovery/adjustment of the amount from the retiral dues has been passed without resorting to any applicable rule when there is no relationship of employer - employee existed in between the petitioner and State, the day writ petitioner retired i.e., with effect from 28.02.2015.
16. This Court, in view of the entirety of facts and
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circumstances and considering the fact that the learned Single Judge has passed the order relying the ratio laid down by Hon'ble Apex Court in State of Punjab and Others v. Rafiq Masih (White Washer) and Others (Supra), is of the considered view that the order passed by the learned Single Judge cannot be faulted with.
17. This Court has also considered the issue regarding entitlement of the writ petitioner as per the argument advanced on behalf of the State appellant but the State appellant has not satisfactorily replied as to whether before passing of the departmental examination in the year 2008, any examination was conducted by the State of Jharkhand allowing the in- service candidates to participate in the departmental examination since such examination cannot be conducted by other agency save and except by the State.
If the State has not come forward before this Court by taking specific plea that even though departmental examination was conducted, the writ petitioner did not participate. In absence thereof, the issue of entitlement cannot be decided against the writ petitioner and in favour of the State appellant.
18. Therefore, this Court is of the view that in absence of such plea about conducting the examination even prior to year 2008 when the writ petitioner has appeared and declared successful, it is not available to the State of Jharkhand to raise the question of entitlement of the writ petitioner from the date
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when the upgradation was granted with effect from 07.09.1999 so far as it relates to first upgradation under A.C.P. and with effect from 25.08.2010 and 24.06.2011 respectively so far as it relates to 2nd and 3rd upgradation under M.A.C.P.
19. This Court, in the entirety of the facts and circumstances, is of the view that the appeal lacks merit.
20. Accordingly, the instant appeal fails and is dismissed.
21. Consequently, I.A. No. 4434 of 2022 (stay petition) also stands dismissed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Birendra/ A.F.R.