Jharkhand High Court
Smt.Manju Singh vs The State Of Jharkhand & Ors. on 20 March, 2009
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (S ) No. 179 of 2008
Manju Singh .... Petitioner
Versus
State of Jharkhand and others ... Respondents
Coram : HON'BLE MR. JUSTICE D.G.R. PATNAIK.
For the petitioner : Dr. S.N. Pathak
For the respondent: JC to AG.
CAV on 5.1.2009 . Pronounced on 20/ 03./2009
20. 03.2009 Challenge in this writ petition filed by the petitioner is
to the order dated 7.10.2006 under Memo No. 1438 (Annexure-1) passed by
the respondent no. 4 and the order dated 25.4.2007 under memo no. 143 (
annexure 2) passed by the respondent no. 5, whereby a sum of Rs.
84,928/- has been ordered to be recovered w.e.f. 1.1.1996 from the gratuity
amount in the account of the petitioner's husband who died in harness on
11.11.2005. Further prayer has been made for a direction to the respondents to refund the amount of Rs. 84,928/- to the petitioner and to fix the payable pension on the basis of the last pay received by her husband before his death. The petitioner has also prayed for a direction to the respondents to pay the amount of ACP to which the deceased husband of the petitioner was entitled on completion of 12 years and 24 years of his service and to fix the pension on the revised pay scale.
2. The case of the petitioner, in brief, is that her husband Sureshwar Pd Singh was appointed as a constable in the Department of Police, Wireless Section, in the year 1972. He died in harness on 2 11.11.2005. After his death, the petitioner, being his widow, approached the respondent authority for payment of death cum retiral benefits payable on account of her husband.
On considering her application, the respondent authority had released the admitted dues to the extent of 90% of provisional pension and 90% of the gratuity amount after deducting Rs. 84, 928/-. The order of withholding the amount of Rs. 84,928/- proposed to be adjusted against the payable amount of gratuity and retiral benefits, was passed by the respondent no. 4 on 7.10.2006 ( vide annexure 1) i.e. after about 11 months of demise of the petitioner's husband. The impugned order dated 25.4.2007 ( annexure-2 ) was passed by respondent no.5 for deducting the alleged excess amount paid to the deceased husband of the petitioner from his admitted dues by way of RPP from 1.1.1996.
3. The grievance of the petitioner is that the order of recovery of the alleged excess amount from the payable gratuity amount has been passed without any prior notice to the petitioner or to her deceased husband and that too, in absence of any allegation that in drawing the alleged excess amount by way of RPP, the petitioner's husband had practised any fraud or misrepresentation .
4. A counter affidavit has been filed on behalf of respondent no.
4. Denying the petitioner's claim and the very maintainability of the writ petition, the respondents have taken the stand that the petitioner's husband was appointed as a Constable (Operator) in the Bihar Police Radio, Patna, and on cadre division, he was allotted Jharkhand Cadre and was posted in the rank of Sub Inspector (Operator) under Jharkhand State 3 Police Service. He died on 11.11.2005. On his demise, his service book and the provisional pay fixation statement was forwarded to the Finance Department of the State Government for final verification of his pay. In course of final pay verification, it was detected that the petitioner's husband was granted RPP of Rs. 600/- in addition to his salary from 1.1.1996. This RPP was given to him to equalize the pay given to his Junior, ASI Operator Jitendra Kumar Singh, vide office order 773 /99 who remained in the State of Bihar after cadre division. The Finance Department, Government of Jharkhand, vide Finance Department's memo no 1349 F2 disallowed the RPP given to the petitioner's husband with direction to revise pay of the petitioner's husband, excluding the RPP from 1.1.1996. The Finance Department had explained that the RPP is admissible only to those senior officers who were promoted on or after 1.1.1996 as per the Government Circular no. 5292/F2 dated 31.7.2000. It is further explained that the petitioner's husband and his junior ASI Jitendra Kumar Singh were promoted to the rank of ASI Operator prior to 1.1.1996 and therefore the pay fixation with RPP was not justified as per rules. Accordingly, after disallowing RPP w.e.f. 1.1.1996 his pay was finally fixed at Rs. 5400/- from 1.1.1996 . On account of the aforesaid error of adding the amount of RPP to his pay, the petitioner's husband had drawn an excess payment to the tune of Rs. 84, 928/- since 1.1.1996 till the date of his death on 11.11.2005. The deduction of the aforesaid amount from the gratuity amount of the deceased was accordingly made by the Accountant General, Jharkhand, Ranchi, as per the advice of the Finance Department.
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5. Assailing the order impugned in this application, Dr. S.N.Pathak, learned counsel for the petitioner, would argue that even as would appear from the counter affidavit , the order for recovery of the amount was passed long after the death of petitioner's husband, that too without giving any prior notice to the petitioner to enable her to explain against the proposed recovery. Furthermore, there is no allegation that in drawing the alleged excess payment, the deceased husband of the petitioner had practised any fraud or misrepresentation upon the respondents and neither was any proceeding initiated against the deceased husband of the petitioner in connection with the alleged excess payment drawn by him. Learned counsel adds further that even otherwise, the amount was paid by way of pay protection on the basis of the office order issued admittedly by the concerned authority of the Department since the officers who were junior to the husband of the petitioner and who had opted for Bihar cadre were drawing higher salary than that of the petitioner's husband and the authorities having continued to pay the amount of RPP to the petitioner's husband for more than 10 years till his death, the same cannot be recovered by the respondent authorities from the gratuity amount after the death of the employee. Learned counsel submits further that during the entire period of his more than 33 years' service, the petitioner's husband was entitled to get the benefit of two ACPs with corresponding increase in his pay scale, but the same was never paid to him.
6. Per contra, learned counsel for the respondent State would explain that the RPP paid to the petitioner's husband was 5 erroneously fixed, since as per rules, the RPP was applicable only to those senior officers who were promoted on or after 1.1.1996, whereas the petitioner's husband as well as his junior, ASI Jitendra Kumar Singh, were promoted to the rank of ASI prior to 1.1.1996. Since the Rules did not permit payment of RPP to petitioner's husband, the amount paid in excess to the petitioner's husband can certainly be recovered from the amount of gratuity payable in his account.
Learned counsel argues that even though the error may not have been occasioned on account of any fraud or misrepresentation on the part of the Government servant, but the fact remains that by virtue of the error, the deceased Government servant had availed excess payment which was not legally payable to him. The State government has every right to recover such amount from the retiral benefits of the government servant and in this view of the matter, no prior notice was required to be served for recovery of the amount .
7 From the rival submissions, two aspects appear to emerge. First aspect is that the claim of respondents that contrary to the Government rules, a sum of Rs. 600/- by way of RPP was paid to the petitioner's husband from 1.1.1996 although he was not entitled to payment of RPP at all under the rules. Such error remained undetected even till the death of the deceased employee. The second aspect is that the order of recovery of excess payment from the amount of gratuity was made more than 11 years after his death. A third aspect is with regard to the petitioner's claim for fixing the salary at higher scale after granting the 6 benefit of ACPS as and when it became due and fixing the last pay on revised scales and the pension on that basis.
8 An identical issue came up for consideration before the Full Bench of this Court in the case of Laxman Pd Gupta Vs. State of Jharkhand ( 2007(4) JLJR 459) and again in the case of Smt Normi Topno Vs. State of Jharkhand ( 2007(4) JLJR 466). The Full Bench had observed that the Government has no power to recover the amount paid in excess, nor can it be recovered arbitrarily. Such recovery can be made only according to the procedure prescribed under Rule 43(1)B of the Government Pension Rules. The Court had further observed that when excess amount received was not on account of misrepresentation, collusion, fraud or negligence, the same cannot be recovered behind the back of the pensioner mechanically; any order causing prejudice to a person cannot be passed without giving an opportunity of being heard. After retirement, there is no relationship of employer and employee. The same view was taken in the case of Smt. Normi Topno (supra). The same view was taken by the Supreme Court in the case of N.D.P. Namboodripad Vs. Union of India (2007(4) SCC 502).
9 The facts of the present case is also the same, inasmuch as the amount by way of RPP which was paid to the petitioner has been sought to be recovered from gratuity after more than 11 years of the death of the employee. The only procedure for recovery of the excess amount paid is by way of the proceedings under 43B of the Pension Rules, which in the instant case has apparently not even been initiated. Therefore, the 7 respondents are not entitled to make recovery of the excess payment amount from the gratuity of the deceased employee .
10 As regards the dispute on account of excess payment, as observed above, the payment of RPP was originally fixed and sanctioned admittedly by the Finance Department of the State Government. The amount of RPP was given to the deceased husband of the petitioner by the concerned authority in order to protect his pay and maintain parity with the higher pay scale of his junior who had opted for Bihar Cadre. Since the pay fixation was all along accepted and payment of salary was made on the said post till death of the deceased employee, neither the employee, nor his widow can be held liable for the alleged excess payment. This view finds support from the judgment of this Court in the case of Baleshwar Singh Vs. State of Jhakrhand ( WP[S] No. 6717 of 2004) reported in 2005(3) JLJR 518 which was based on the Supreme Court judgment in the case of Sahib Ram Vs State of Haryana & Ors ( 1995 (Suppl)(1) SCC 18).
11. So far as the fixation of pension is concerned, in absence of any allegation of fraud or misrepresentation against the Government employee regarding pay fixation to give RPP from the year 1996 and thereafter the objection as raised by the respondents, in my view, is not justified. In the facts and circumstances of the case, the amount of RPP having been sanctioned and accepted by the concerned authorities and paid to the deceased employee for more than 11 years, the same cannot be disputed, nor can be deemed as excess payment for recovery. The fixation of pension of the employee has to be made only on the basis of the pay 8 last drawn by the employee prior to his death. This view finds support from the decision of this Court in the case of Dudheshwar Mahto Vs. State of Jharkhand (2005(4) JLJR 200) .
12 In the light of the above discussions, the impugned orders dated 7.10.2006 ( annexure 1) and order dated 25.04.2007 ( annexure 2) are hereby quashed. The respondents are directed the pay the amount which was recovered from the retiral dues of the petitioner's husband. Furthermore, if the deceased employee was entitled for the benefit of the ACP on completing 12 years and 24 years of service, the respondents shall fix salary of the deceased husband of the petitioner on the increased pay scale and fix the amount of pension on the basis of last enhanced pay scale which would have been available on the date of his death. If the respondents, for reasons to be assigned, find that the deceased husband of the petitioner was not entitled to the benefit of ACP during his service period, then the payable pension shall be fixed on the basis of the last pay drawn by him before his death.
With the above observations, this application is disposed of.
Ambastha/- (D.G.R. Patnaik, J )