Jharkhand High Court
Ram Naresh Singh vs State Of Jharkhand & Ors on 12 April, 2010
Author: D. N. Patel
Bench: D. N. Patel
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1003 of 2009
Ram Naresh Singh ....Petitioner
Versus
1. The State of Jharkhand
2. Principal, Patliputra Medical College, Dhanbad
3. Dr. C.B. Choudhary, Principal, Nalanda Medical
College, Patna
4. State of Bihar. ... ...Respondents
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CORAM: HON'BLE MR. JUSTICE D. N. PATEL For the Petitioner : M/s Gouri Das, C.K. Trivedy, Advocates For the Jharkhand-State : J.C. to Sr. S.C.-I For the Bihar-State : Mr. S.P. Roy, Advocate
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th 06/ Dated: 12 April, 2010
1. The present writ petition has been preferred mainly against an order passed at Annexure-5 as well as at Annexure-6 to the memo of the petition whereby, it has been stated by the respondents that the petitioner, who was working as Clerk at Nalanda Medical College and subsequently, at Patliputra Medical College, Dhanbad and who has already been retired on 31st May, 2007, but, he was given promotion in the year 1985, dehors the rules and therefore, amount of Rs. 1,16,953.60 paise is to be recovered from the gratuity amount, as per order dated 1st July, 2008 and against this order, the present petition has been preferred.
2. Learned counsel for the petitioner submitted that the petitioner was never given any opportunity of being heard, prior to the deduction of the sizeable amount from the provident fund and from the retirement benefits of the petitioner. It is further submitted by the learned counsel for the petitioner that the petitioner was given promotion by the respondents, in the year, 1985. Thereafter, the petitioner worked for several years and retired on 31st May, 2007 and the recovery has been ordered to be made from the retirement benefits of the petitioner vide order dated 1st July, 2008, which is in gross violation of law, laid down by the Hon'ble Supreme Court in the case of Syed Abdul Qadir and Others Vs. State of Bihar and others as reported in (2009) 3 SCC 475. It is further submitted by the learned counsel for the petitioner that had an opportunity of being heard been given to the petitioner, he would have pointed out that the promotion, which was given to the petitioner in the year, 1985, was 2. absolutely true, correct and legal and in consonance with law and there is no fault on the part of the petitioner. The petitioner has never misrepresented his case, nor he has played any fraud upon the respondents and therefore also, the amount of alleged recovery, stated in Annexure-6 to the memo of the petition, deserves to be quashed and set aside. In fact, the petitioner was serving since several years and therefore, because of his sincere, honest and diligent services, the petitioner was given promotion, in accordance with law, in the year, 1985. The petitioner was serving with the respondents since 1978 and therefore, the orders at Annexure-5 as well as at Annexure-6, deserves to be quashed and set aside.
3. Learned counsel for the respondents has vehemently submitted that those, who are paid unauthorizedly have to return the amount to the respondents. The petitioner cannot be allowed to retain the monetary benefit, which has been received by him unauthorizedly and therefore, the order passed at Annexure-6 to the effect that the petitioner was wrongly given promotion in the year, 1985 and therefore, the additional amount, which was paid to the petitioner, is directed to be recovered from the petitioner vide order dated 1st July, 2008 and hence, the petition deserves to be dismissed.
4. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, I hereby, quash and set aside the order passed at Annexure-6 dated 1st July, 2008, mainly for the following facts and reasons:-
(i) It appears from the facts of the case that the petitioner was serving as Clerk with the respondents since 1978 onwards and because of his long tenure of his services, he was given promotion in the year, 1985 and there was no misrepresentation, nor the petitioner has played fraud upon the respondents, for getting the said promotion.
(ii) Thereafter, the petitioner was working for several years with the respondents and reached the age of superannuation on 31st May, 2007. Thus, even after the promotion was given, he served for twenty one long years. Never any objection was raised by the respondents, on the contrary, it is submitted by the learned counsel 3. for the petitioner that never any charge-sheet has been issued or never any stigma has been attached, to the services of the present petitioner and he worked honestly, sincerity and diligently and to the satisfaction of the respondents.
(iii) Never any notice has been given by the respondents, prior to the issuance of the order of recovery of the amount of Rs.1,16,953.60paise. Thus, the impugned order at Annexure-6 dehors the principles of natural justice.
(iv) It has been held by the Hon'ble Supreme Court in the case of Syed Abdul Qadir and Others Vs. State of Bihar and others as reported in (2009) 3 SCC 475 especially, in paragraph nos. 58, 60 and 61, which read as under:-
"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess."
60. Learned counsel also submitted that prior to the interim order passed by this Court on 7-4-2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some instalments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them.
61. In the result, the appeals are allowed in part; the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellant teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR 22-C would apply to the appellant teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of secondary schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, 4. after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment."
(Emphasis Supplied) In view of the aforesaid decision, when there is no misrepresentation and fraud on the part of the petitioner and he has been paid an amount because of some misinterpretation of the Rule, the amount cannot be recovered from an employee and by now, the petitioner has already been retired from service with effect from 31st May, 2007.
5. In view of the aforesaid decision, and also looking to the fact that never any notice has been issued to the petitioner, prior to the order of the recovery, as per Annexure-6, I hereby, quash and set aside the order of the recovery passed by the respondents dated 1st July, 2008 at Annexure-6 to the memo of the petition as the same is also violative of principles of natural justice.
6. Accordingly, this writ petition is allowed and disposed of.
(D.N. Patel, J) VK/-