Jharkhand High Court
Nikudimus Tudu vs Sidhu Kanu University,Dumka & on 15 December, 2009
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P.(S). No. 1371 of 2004
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Nikudimus Tudu ... Petitioner
-V e r s u s-
1. Sidhu Kanu University, Dumka
2. The Vice Chancellor, Sidhu kanu University, Dumka
3. The Registrar, Sidhu Kanu University, Dumka
4. The Principal, Sahebganj College, Sahebganj ... Respondents
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CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
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For the Petitioner : - Mr. Alok Lal, Advocate
For the Respondents : - Mr. Sanjay Piprawall, Advocate
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05/ 15.12.2009Heard counsel for the parties.
2. This application is disposed of at the stage of admission itself.
3. The petitioner in this writ application has prayed for issuance of a writ in the nature of mandamus for a direction upon the respondents to pay the arrears as well as the current salary to the petitioner, as directed by this Court in terms of its order dated 01.11.2002 passed in C.W.J.C. No. 2132 of 2001.
4. Vide the earlier writ application, the petitioner had made a prayer for directing the respondents to regularize his services and for payment of back wages in accordance with the U.G.C. Scale. The writ application was disposed of by this Court with an observation that the prayer for regularization of service cannot be allowed.
However, as far as prayer for payment of back wages, it was observed that the petitioner has been continuing as lecturer in the Sahebganj College, it is expected that the respondents shall release the arrears of salary including the current salary/wages within a period of 30 days from the date of order.
5. The grievance of the petitioner is that despite the above orders of this Court, the respondents have not paid him the salary ever since 1989 at the rate earlier fixed as per the U.G.C. scale i.e. Rs. 2200 - 4000/- per month. Instead, the petitioner is being paid a fixed salary of Rs. 700/- per month although he has been allowed to continue in service till date.
6. The petitioner was initially appointed in the Sahebganj College which is a constituent unit of the Sidhu Kanu University carved out from the erstwhile Bhagalpur University.
7. It appears that some time in September, 1989 the Vice Chancellor of Bhagalpur University by his office order, had declared that the fixed salary of the lecturers who are appointed on adhoc basis and whose salary was earlier fixed at Rs. 700/- per month, would be paid in accordance with the U.G.C. scale of Rs. 2200 - 4000/- per month. The directions contained in the notification was implemented and accordingly the petitioner began to receive salary @ Rs. 2200 - 4000/- per month.
8. However, after the Sidhu Kanu University was carved out from the erstwhile Bhagalpur University, the earlier decision of the Vice Chancellor of the Bhagalpur 2 University was rescinded and it was declared that the fixed salary of the lecturers would be at the initially fixed rate of Rs. 700/- per month.
9. It appears that several lecturers who were aggrieved on account of their not being regularized in service, had raised a dispute which ultimately went up to the Apex Court vide S.L.P. (Civil) No. 11078 of 1989. While disposing of the same, the Supreme Court had ordered that "all the adhoc teachers in service on February 10, 1989 against sanctioned posts shall continue till selection is made by the University Service Commission and they shall be paid in terms agreed for the period in which they actually worked". The aforesaid order of the Supreme Court was in respect of the adhoc teachers, which includes the present petitioner also.
10. Subsequent to the aforesaid directions, though the adhoc teachers were allowed to continue in service on the same terms of adhoc appointment pending initiation of the process for regular appointment through University Service Commission, a dispute arose as to what should be the fixed salary. While a section of adhoc teachers, like the petitioners, had claimed that the agreed salary should be considered in the scale of Rs. 2200 - 4000/- per month, the stand taken by the respondent college was that the "agreed salary" referred to by the Supreme Court in the aforesaid order was Rs. 700/- per month.
11. It appears that a dispute in this context was raised before this Court by a batch of adhoc teachers in the case of Dr. Bijoy Kumar Choudhary and 13 others vide W.P.(S) No. 4596 of 2001.
While disposing of the writ application vide its order dated 13.03.2003, a Bench of this Court had observed that the writ petitioners were entitled to a fixed pay of Rs. 700/- per month for the period they have actually worked. Thus, the issue as to whether the term "agreed salary" as declared in the order of the Supreme Court referred to the fixed pay of Rs. 700/- per month or Rs. 2200 - 4000/- per month, came to be decided by a Bench of this Court declaring that the fixed pay would be Rs. 700/- per month. The ratio as decided in the aforementioned case of Dr. Bijoy Kumar Choudhary, as far as the dispute relating to the amount of agreed salary, would apply in the case of the petitioner also and the petitioner should reconcile to the fact that the fixed salary as intended by the Supreme Court in its order passed in the S.L.P., was Rs. 700/- per month and nothing more.
12. As regards the petitioner's grievance that by the impugned order dated 28.11.2003 (Annexure-8), the respondent No. 4 has not only reduced the salary of the petitioner but has also proceeded to order for recovery of the amount @ Rs. 100/- per month from the petitioner's salary, it appears that prior to the issuance of the impugned order, the petitioner was being given salary on the scale of Rs. 2200 - 4000/- per month. By the impugned letter, this scale of pay has been abruptly stopped and to compound the matter, a further order has been passed for recovery of the amount which the petitioner had drawn on the basis of the purported inflated scale.
313. Admittedly, before ordering for the recovery of the amount from the petitioner's salary, he was not served with any notice whatsoever nor any opportunity afforded to him as to why the recovery should not be made from his salary. Admittedly, fixation of the salary at the higher scale, was made on the basis of the recommendations of the U.G.C. The scale which was enhanced by the Vice Chancellor of the Bhagalpur University, continued to be given even after the carving out of the Sidhu Kanu University, till the date of the issuance of the impugned order. Admittedly, in the fixation of the higher pay scale, there is no allegation or accusation against the petitioner that he has practiced any fraud or misrepresentation. It appears thus that the fixation of the salary at a higher scale and the payment made to the petitioner at such scale was entirely at the discretion and volition of the concerned authorities of the respondents. Even if such decision was subsequently found to be erroneous and any amount of purported excess payment was sought to be recovered, the minimum requirement, even as per the demands of principles of natural justice is that the petitioner ought to have been given a prior notice. Even otherwise, since such purported excess payments were not made to the petitioner on account of any lapses, fraud or deception practiced by him, in my opinion, the amount cannot be recovered from him unless and until a finding, after conducting an enquiry, is recorded against him that such excess payments were received by him by practicing fraud and deception.
14. Thus, part of the order whereby the purported excess paid amounts are sought to be recovered from the petitioner's salary, is hereby set aside. As regards the other part relating to the fixed salary of Rs. 700/- per month, the same is not interfered with by this Court. If pursuant to the impugned order any amount from the salary of the petitioner has been recovered, the same shall be refunded to the petitioner forthwith.
With these observations, this writ application is disposed of. Let a copy of this order be given to the counsel for the respondents.
(D.G.R. Patnaik, J.) Birendra/