Jharkhand High Court
Jay Kumar Ray vs The Union Of India on 12 March, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Kumar Dwivedi
( 2026:JHHC:6731-DB )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1019 of 2026
Jay Kumar Ray, aged about 66 years, son of Rajwansh Ray, resident of
Professor Colony, Gali No.2, Hirapur, P.O. & P.S. Dhanbad, District-
Dhanbad ... Petitioner
-Versus-
1. The Union of India, Ministry of Railways, through General Manager, East
Central Railway, Hazipur, P.O. & P.S. Hazipur, District- Hazipur-844101
2. The Divisional Railway Manager, East Central Railway, Dhanbad Division,
Dhanbad, P.O. & P.S. Dhanbad, District- Dhanbad-826001
3. The Senior Divisional Personnel Officer, East Central Railway, Dhanbad
Division, Dhanbad, P.O. & P.S. Dhanbad, District- Dhanbad-826001
4. The Senior Divisional Commercial Manager, East Central Railway,
Dhanbad Division, Dhanbad, P.O. & P.S. Dhanbad, District- Dhanbad-
826001 ... Respondents
-----
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. P.K. Mukhopadhyay, Advocate For the Respondents : Mr. Prashant Vidyarthi, Sr. Panel Counsel (UOI) Mr. Romit Kumar, Advocate Mr. I.B.P. Sinha, Advocate
-----
06/12.03.2026 This writ petition has been filed under Article 226 of the Constitution of India against the order dated 11.12.2024 passed by the Central Administrative Tribunal, Patna Bench, Circuit Bench at Ranchi in O.A. No.051/00091/2022, whereby and whereunder, the learned Tribunal has dismissed the said original application by declining to pass any positive direction on the prayer made in the original application. Facts:
2. The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated herein, reads as under:-1- W.P. (S) No. 1019 of 2026
( 2026:JHHC:6731-DB ) The writ petitioner was appointed as Office Clerk in D.R.M. Office on 12.12.1986. The petitioner was then posted as T.C. in East Central Railway, Gomoh and he was promoted to the post of T.T.I., East Central Railway, Gomoh and has retired on 31.01.2019 from the post of C.T.I., East Central Railway, Gomoh. The petitioner while working as T.T.I., East Central Railway, Gomoh, a proceeding was initiated against him by the authority and a notice of punishment, vide Notice No.C744/Vig./Major/07, dated 18.01.2008 through which the petitioner was punished with reduction in pay in time scale for two years by two stages with cumulative effect.
Thereafter, the petitioner preferred an appeal before the appellate authority i.e. A.D.R.M., East Central Railway, Dhanbad and the petitioner has appeared before the appellate authority and explained every pros and cons of the matter and after going through the case of the petitioner, the appellate authority partly allowed the appeal by converting/reducing the punishment from cumulative to non-cumulative, vide order dated 29.03.2008, but copy of the order was not provided to the petitioner, and after two years, pay scale of the petitioner was automatically restored, since the punishment was converted into non-cumulative one.
The petitioner was quite confident that the said order of the appellate authority must have been recorded in the service -2- W.P. (S) No. 1019 of 2026 ( 2026:JHHC:6731-DB ) record maintained by the Commercial Department. The petitioner has no grievance since his pay scale was restored considering the appellate order, converting his punishment from cumulative effect to non-cumulative effect.
Thereafter, the petitioner superannuated on 31.01.2019 and he was surprised to know that due to non-entry of the appellate order, passed by the appellate authority i.e. A.D.R.M., Dhanbad in the service record of the petitioner, his pay scale has been reduced from Rs.64,100/- to Rs.60,400/- and a sum of Rs.2,85,000/- has been deducted/recovered from the retiral benefits of the petitioner towards so called excess amount of pay.
3. The writ petitioner/applicant being aggrieved with the order by which a sum of Rs.2,85,000/- has been directed to be recovered from the petitioner, has assailed the said order before Central Administrative Tribunal, Patna Bench, Circuit Bench at Ranchi by filing Original Application being O.A. No.051/00091/2022.
4. The said Original Application was filed based upon the ratio laid down by the Hon'ble Apex Court in the case of State of Punjab and Ors. v. Rafiq Masih (White Washer) and Ors., reported in (2015) 4 SCC 334.
5. It had been contended before the learned Tribunal that on conclusion of the departmental proceeding, the punishment of withholding two annual increments with cumulative effect although -3- W.P. (S) No. 1019 of 2026 ( 2026:JHHC:6731-DB ) initially was inflicted, but subsequently, an order was passed on 29.03.2008, the nature of punishment of withholding two annual increments has been reduced to the reduction of increments with non- cumulative effect. The ground was therefore taken before the learned tribunal that the moment when the nature of punishment has been changed from major to minor and, as such, entire amount of Rs.2,85,000/- which has been recovered, cannot be just and proper and otherwise also even accepting the fact that the order of punishment of withholding two annual increments with cumulative effect even though the excess amount has been paid, that cannot be recovered after delay of considerable period in view of the law laid down by the Hon'ble Apex Court in the case of State of Punjab and Ors v. Rafiq Masih and Ors (supra).
6. The learned Tribunal has called upon the respondents. The respondents have appeared and filed their written statement and plea of reducing the nature of punishment from major to minor, has been disputed by giving specific reply at paragraph 14 of their written statement, wherein, the ground has been taken that in the facts and circumstances of the present case and issue laid down by the Hon'ble Apex Court in the case of State of Punjab and Ors v. Rafiq Masih and Ors (supra) is not applicable since the recovery is in consequence of order of punishment passed on conclusion of departmental proceeding.
-4- W.P. (S) No. 1019 of 2026
( 2026:JHHC:6731-DB )
7. The learned Tribunal has decided the issue particularly by taking note of non-availability of an order passed by the appellate authority, which is said to be passed on 29.03.2008 and has considered the applicability of the judgment rendered by the Hon'ble Apex Court in the case of State of Punjab v. Rafiq Masih (supra) and came to the conclusive finding that the factual aspect of the present case is quite different to the facts of the case based upon which a guideline has been formulated by the Hon'ble Apex Court in the case of State of Punjab and Ors v. Rafiq Masih and Ors (supra) and, accordingly, dismissed the original application, which is the subject-matter of the present writ petition.
Arguments on behalf of the Writ Petitioner:
8. Mr. P.K. Mukhopadhyay, learned counsel for the writ petitioner has submitted that the learned Tribunal has not appreciated the fact in right perspective particularly by coming to the conclusion that the judgment rendered by the Hon'ble Apex Court in the case of State of Punjab and Ors v. Rafiq Masih and Ors (supra) is not applicable in the facts of the present case.
9. He has also submitted that the appeal preferred by the petitioner, in which, the order was passed on 29.03.2008, although the respondents were specifically impleaded but instead of calling upon the respondents to come out with the order dated 29.03.2008, the said impugned order has been passed, therefore, the said order is not -5- W.P. (S) No. 1019 of 2026 ( 2026:JHHC:6731-DB ) sustainable in the eyes of law and, hence, the impugned order is fit to be quashed and set-aside.
Arguments on behalf of the Respondent-Railways:
10. Per contra, Mr. Prashant Vidyarthi, learned senior Panel counsel for the respondent-Railways has submitted that by defending the order of the learned Tribunal by taking the ground that factual aspect of the judgment rendered by the Hon'ble Apex Court in the case of State of Punjab and Ors v. Rafiq Masih and Ors (supra) is quite different, which has been passed in the premise of the fact that there is payment of excess amount contrary to entitlement and in such circumstances, the Hon'ble Apex Court has formulated guidelines in paragraph 18 of the said judgment.
11. It has been submitted that herein a case is of consequence of the order of punishment of withholding two annual increments with cumulative effect, but for one reason or the other, the pay scale has been restored but subsequently when it has been suppressed, then the decision was given to recover the said amount. The contention, therefore, has been raised if the contention of the writ petitioner will be accepted then the very nature of the order of punishment will be diluted and it will change from the nature of punishment from cumulative effect to non-cumulative effect. So far as the order which is said to be passed on 29.03.2008 is concerned, specific stand was taken by the respondents before the learned Tribunal in their written statement at -6- W.P. (S) No. 1019 of 2026 ( 2026:JHHC:6731-DB ) paragraph 14 that no such decision has been taken, however, one application which has been appended with the paper book, there is no consequential order.
12. It has been submitted that if any order is said to be passed by the appellate authority as per the plea taken by the writ petitioner, the onus is upon the petitioner to come out with an order in a situation when the contention of passing of an order by the appellate authority is being disputed.
13. Learned counsel, based upon the same, has submitted that the impugned order requires no interference.
Analysis
14. This Court has heard learned counsel for parties at length and gone through the pleading made in the writ petition also the finding recorded by the learned Tribunal as available in the impugned order.
15. Before appreciating the legality and propriety of the impugned order passed by the learned Tribunal, it needs to refer herein that the jurisdiction to be exercised by this Court under Article 226 of the Constitution of India, which admittedly is not original/extraordinary jurisdiction rather the jurisdiction is to be exercised in view of the ratio rendered by the Hon'ble Apex Court in the case of L. Chandra Kumar v. Union of India and Ors, reported in (1997) 3 SCC 261, wherein, at paragraph 99 it has been laid down that the High Court will exercise power of judicial review under Article 226 of the Constitution of India. -7- W.P. (S) No. 1019 of 2026
( 2026:JHHC:6731-DB ) Paragraph 99 of the said judgment is being quoted herein below:
"99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323- B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."
16. At this juncture it will be proper to refer the power of judicial review as deliberated by the Hon'ble Apex Court, which is to be consid- ered while exercising the said power only to the extent that if any order is being passed found to be having error on the face of the order or -8- W.P. (S) No. 1019 of 2026 ( 2026:JHHC:6731-DB ) without jurisdiction or suffers from perversity. The error apparent on the face of the order means that if the order appears on its face having with error, then only the power of judicial review is to be exercised.
17. The Hon'ble Apex Court in the case of West Bengal Central School Service Commission and Ors vs. Abdul Halim and Ors, (2019) 18 SCC 39, has held at paragraph-30 that the power of judicial review must be exercised by the Court after determining that the im- pugned order is vitiated by an error apparent on the face of the record and not the same has been established by a process of reasoning. Par- agraph-30 of the aforesaid judgment is being referred as under:
"30. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale [Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137] . ---."
18. In the case of T.C. Basappa vs. T. Nagappa and Anr., (1955) 1 SCR 250, their Lordship have held that the patent error in a decision can be corrected when it is manifested by the error apparent on the face of the proceedings. The relevant portion of the aforesaid judgment is quoted hereunder:
-9- W.P. (S) No. 1019 of 2026
( 2026:JHHC:6731-DB ) "11. ... An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. ...."
19. Thus, on the basis of the aforesaid settled legal position it is evi-
dent that the power of judicial review can be exercised, if error on the face of the order impugned, challenged under the Article 226 of Con- stitution of India, appears to be there.
20. This Court is now adverting to the rival contention raised by the learned counsel for the parties. It is apparent from the rival contentions that the following issues has to be answered herein.
21. The issue no. (i) which requires consideration as to whether the ratio laid down by the Hon'ble Apex Court as per the guideline as referred in paragraph 18 of the judgment passed in the case of State of Punjab v. Rafiq Masih (supra) is applicable in the facts of the present case of not? and issue no. (ii) Whether the ground taken on behalf of the writ petitioner that the order passed by the appellate authority on 29.03.2008 can be given reliance in absence of the said order in a situation when the very contention of passing of the order by the appellate authority has been disputed by filing written statement which has not been responded by filing note/rebuttal/reply thereto?
22. So far as issue no.(i) is concerned, this Court in order to consider the applicability of the judgment rendered in the case of State of -10- W.P. (S) No. 1019 of 2026 ( 2026:JHHC:6731-DB ) Punjab and Ors v. Rafiq Masih and Ors (supra) needs to refer herein in the factual background on which the judgment has been passed by the Hon'ble Apex Court and has laid down guidelines about recovery in paragraph 18 thereof.
23. Initially, the Hon'ble Apex Court has considered the issue of recovery in the case of Shyam Babu Verma and Ors vs. Union of India and Ors, (1994) 2 SCC 521 wherein the recovery has been said to be improper if the recovery is being made from the salary of the concerned employee on the basis of wrong fixation if there is no misrepresentation or fraud said to be committed on the part of the concerned public servant. For ready reference, relevant paragraph of the said judgment is being referred as under:
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330- 560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."
24. Again, in Sahib Ram v. State of Haryana and Ors. [1995 Supp (1) SCC 18], the Hon'ble Apex Court held that although the appellant therein did not possess the required educational qualification, -11- W.P. (S) No. 1019 of 2026 ( 2026:JHHC:6731-DB ) yet the Principal granting him the relaxation, had paid his salary on the revised pay scale and this was not on account of misrepresentation made by the appellant but by a mistake committed by the Principal and as such the amount already paid to the appellant need not be recovered. For ready reference the relevant paragraph is being quoted as under:
"5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant."
25. Subsequent to the aforesaid judgment, the Hon'ble Apex Court has considered the issue of recovery in the case of Chandi Prasad Uniyal and Ors vs. State of Uttarakhand and Ors, (2012) 8 SCC 417 wherein by deferring with the view taken by the Hon'ble Apex Court in Shyam Babu Verma vs. Union of India (supra) has taken the contrary view by holding therein that if the amount has been paid, the same since is of a tax payers money, thence, the same is to be recovered from the concerned employee. Relevant paragraph of the judgment rendered in Chandi Prasad Uniyal and Ors vs. State of Uttarakhand and Ors (supra) is being referred as under:
-12- W.P. (S) No. 1019 of 2026
( 2026:JHHC:6731-DB ) "14. We are concerned with the excess payment of public money which is often described as "taxpayers' money" which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment."
26. The Hon'ble Apex Court in view of the conflicting judgment on the issue of recovery has referred the matter before the Larger Bench in the case of State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors., (2014) 8 SCC 883 but the Hon'ble Apex Court without answering the reference remitted the matter before the Division Bench for appropriate disposal.
27. Consequently, the Division Bench of the Hon'ble Apex Court in the case of State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors., (2015) 4 SCC 334 at paragraph-18, has laid down the guidelines which is required to be followed by the State in making -13- W.P. (S) No. 1019 of 2026 ( 2026:JHHC:6731-DB ) recovery. For ready reference, paragraph-18 of the said judgment is being referred 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."
28. It is evident from the aforesaid judgment that altogether five conditions have been stipulated by the Hon'ble Apex Court wherein Condition Nos.(i) to (iv) stipulate about the conditions of making no recovery, i.e., (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, (ii) recovery from the -14- W.P. (S) No. 1019 of 2026 ( 2026:JHHC:6731-DB ) employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued, (iii) 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, and (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. Condition No.(v) speaks about by conferring power upon the court of law to adjudge the harshness of the iniquitous of the recovery if made by the employer. Condition No.(v) is, therefore, in addition to the condition Nos.(i) to (iv).
29. It requires to refer herein settled proposition of law that the applicability of the judgment depends upon the facts and circumstances of each and every case and there cannot be any universal application of the judgment rather each judgment is to be decided on the basis of fact of each case. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Supreme Court Dr. Subramanian Swamy vs. State of Tamil Nadu & Ors reported in (2014) 5 SCC 75 for ready reference the relevant paragraph is being quoted herein under :
"47. It is a settled legal proposition that the ratio of any deci- sion must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, -15- W.P. (S) No. 1019 of 2026 ( 2026:JHHC:6731-DB ) and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
30. Adverting back to the present case, the admitted fact is that the writ petitioner while working under the respondents was proceeded departmentally and departmental proceeding was concluded on inflicting punishment of withholding two annual increments with cumulative effect. The salary was reduced, but subsequently the same was revived. The writ petitioner has been granted back the salary after lapse of period of two years on the presumption that the order of punishment of withholding two annual increments with cumulative effect has been reversed to that of the non-cumulative effect. Such presumption has come in the mind of the writ petitioner on the basis of an application which is said to be filed before the appellate authority. The fact remains that the pay has been reduced in consequence of the order of punishment inflicting punishment of withholding two annual increments with cumulative effect, major punishment.
31. The question of entitlement is the crux of the judgment rendered in the case of State of Punjab and Ors v. Rafiq Masih and Ors (supra) and if any excess payment has been made contrary to entitlement, then the recovery has been made impermissible from Class- III and Class IV employee and from the retired employee or even the recovery cannot be made after a period 5 years. Herein, the entitlement -16- W.P. (S) No. 1019 of 2026 ( 2026:JHHC:6731-DB ) is the core of issue.
32. This Court is of the view that the moment the punishment was inflicted under the applicable rule, inflicting the punishment of withholding two annual increments with cumulative effect meaning thereby the pay scale of the writ petitioner, for all time to come, being the nature of punishment to be major, will be reduced for two annual increments. Therefore, entitlement of getting the pay scale attached to the post has been reduced to the consequence of the punishment, hence, here it is not a case that it has wrongly been recovered rather entitlement has been curtailed the moment the punishment has been inflicted upon the writ petitioner by reducing two annual increments with cumulative effect.
33. This Court is, therefore, of the view, that in the facts and circumstances of the instant case, the judgment rendered by the Hon'ble Apex Court in the case of State of Punjab and Ors v. Rafiq Masih and Ors (supra) is not applicable herein.
34. Accordingly issue no.(i) is decided against the writ petitioner.
35. The issue no.(ii) that the order of punishment of withholding two annual increments with cumulative effect, has been reduced by the order passed by the appellate authority said to be passed on 29.03.2008. The writ petitioner although has appended the copy of the said memorandum of the appeal but no order is said to be passed by the appellate authority, either has been brought on record before the -17- W.P. (S) No. 1019 of 2026 ( 2026:JHHC:6731-DB ) Tribunal or before this Court, however, the statement has been taken in the original application. The said statement has been refuted by the respondents in paragraph 14 of their written statement by specific denial that no order has been passed, which is said to be passed on 29.03.2008.
36. This Court while hearing the matter on 18.02.2026 based upon the argument advanced on behalf of the petitioner, where, emphatically the reference is made that the order is said to be passed by the appellate authority, has examined the matter and granted time to the respondent- Railways to file an affidavit regarding outcome of the appeal. The respondent-Railways has filed an affidavit reiterating the fact which was already stated before the Tribunal that no such order was passed by the appellate authority and referred before the Tribunal that no rebuttal/reply was filed with respect to the issue of the order which is said to be passed by the appellate authority on 29.03.2008. The writ petitioner/applicant was the litigant before the Tribunal and he has also approached this Court by taking plea that the appellate authority has passed the order on 29.03.2008 and, as such, the onus is upon him to make specific plea supported by the relevant documents to make out a case, since herein the jurisdiction is summary and hence, the ground of a statement supported without any document is not worth to be considered particularly in a situation where the said order has been disputed by the respondents by taking the ground that the appellate authority has not passed the said order, which is said to be passed on -18- W.P. (S) No. 1019 of 2026 ( 2026:JHHC:6731-DB ) 29.03.2008.
37. Herein also, Mr. P.K. Mukhopadhyay, learned counsel for the petitioner has submitted that no order which is said to be passed by the appellate authority on 29.03.2008 is in his possession rather the same would be presumed to correct since the salary was again revived by bringing the salary on its restoration. Thus, the learned counsel for the petitioner has tried to impress the Court on the basis of presumption.
38. The law is well settled that the Writ Court is to exercise the jurisdiction on the principle of strict pleading and no order can be passed merely on the ground of presumption or supposition of any fact by the authority concerned. It needs to refer herein that the extraordinary remedy granted under Article 226 of the Constitution is essentially discretionary and the legal formulations cannot be enforced divorced from the realities of the fact situation of the case reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Central Council for Research in Ayurvedic Sciences v. Bikartan Das, 2023 SCC OnLine SC 996.
39. On the basis of discussion made hereinabove, this Court is of the view that the ground which has been taken that merely because the salary has been restored which means that the nature of punishment has been changed from major to minor is not being accepted, rather, it is upon the writ petitioner to make out a case in his favour, he should -19- W.P. (S) No. 1019 of 2026 ( 2026:JHHC:6731-DB ) have bringing on record an order dated 29.03.2008 passed by appellate authority which he has not brought o record before the learned Tribunal or even before this Court.
40. Since we are exercising the jurisdiction conferred under Article 226 of the Constitution of India that too in a case where power of judicial review is to be exercised to look into the illegality/impropriety of the order of the learned Tribunal in view of the judgment passed by the Hon'ble Apex Court in the case of L. Chandra Kumar (supra) and, as such, if the Tribunal has not taken note with respect to the order passed by the appellate authority and even before this Court no such document has been brought on record, this Court is of the view that in absence of such document, it will not be just and proper for this Court to interfere in to the finding recorded by the learned Tribunal.
41. Mr. P.K. Mukhopadhyay, learned counsel for the petitioner at this juncture has submitted that even assuming that there is no order passed by the appellate authority, then also the recovery of the salary cannot be said to be just and proper in view of the judgment passed in the case of State of Punjab and Ors v. Rafiq Masih and Ors. (supra).
42. We are not delving upon this issue again, since, the same has already been answered while answering issue no.(i).
43. Accordingly, issue no.(ii) is also answered against the writ petitioner.
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44. Thus, on the basis of discussion made hereinabove, this Court is of the view that instant writ petition sans merit, accordingly the same is hereby dismissed.
45. Interlocutory application(s) if any stands disposed of.
(Sujit Narayan Prasad, J.) (Sanjay Kumar Dwivedi, J.) Dated: 12th March, 2026 Ajay/ A.F.R. Uploaded on 18th March, 2026 -21- W.P. (S) No. 1019 of 2026