Jharkhand High Court
Vijay Chandra Pathak vs Human Resources Department on 16 February, 2016
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5657 of 2014
Vijay Chandra Pathak son of late Jay Narayan Pathak, retired teacher of
Smt. Janki Devi Adarsh Girsls High School, Rajdhanwar, Giridih, resident
of village Baxidih, PO & P.S-Daru, district- Giridih (Jharkhand)
..... ..... Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary, Government of
Jharkhand, Project Bhavan, Ranchi, PO-Telephone Bhawan, P.S. Dhurwa,
District-Ranchi.
2. The Principal Secretary, Department of Human Resources &
Development, Government of Jharkhand, Telephone Bhawan, Ranchi, P.O.
Telephone Bhawan, P.S. Dhurwa, District-Ranchi.
3. The Finance Secretary, Department of Finance, Government of
Jharkhand, Project Bhavan, Ranchi, PO-Telephone Bhawan, P.S. Dhurwa,
District-Ranchi.
4. The Director, Secondary Education, Department of Human Resources &
Development, Government of Jharkhand, Telephone Bhawan, Ranchi, P.O.
Telephone Bhawan, P.S. Dhurwa, District-Ranchi.
5. The Regional Deputy Director of Education, Hazaribagh, P.O, P.S &
District Hazaribagh.
6. The District Education Officer, Giridih, P.O, P.S & District Giridih.
7. The Incharge Headmistress, Smt. Janki Devi Adarsh Girls High School,
Rajdhanwar, Giridih, P.O, P.S & District Giridih.
.... Respondents
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CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioner : Mr. K. P. Deo, Adv.
For the Respondents : Mr. Amit Kumar, J.C. to G.P.II.
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th
3/Dated:16 February, 2016
Per Pramath Patnaik, J.:
1. In the instant writ application, the petitioner has inter alia prayed for
quashing the order dated 16.08.2013 issued by the District Education
Officer, Giridih whereby a sum of Rs.9,91,996/- has been ordered to be
recovered and thus respondents authorities have recovered Rs.50,000/ from
the salary of the petitioner from the month of April, 2013 till January, 2014
and Rs.3,50,000/- from gratuity; Rs.3,00,000/- from unused Earned and
Rs.2,91,996/- from the amount of General Provident Fund and the petitioner
has further prayed for refund of Rs.50,000/- already recovered from the
salary from April, 2013 to January, 2014 along with interest.
2. The facts, as disclosed in the writ application, in nutshell, is that the
petitioner joined as Assistant Teacher on 01.01.1982 and superannuated on
31.01.2014after serving for more than 32 years of service.
2Being aggrieved by the impugned order dated 16.08.2013, the petitioner having no alternative and efficacious remedy, approached before this Court under Article 226 of the Constitution of India invoking extraordinary jurisdiction for redressal of his grievance.
3. Learned counsel appearing for the petitioner submits that impugned orders have been passed for recovery of the excess payment without initiation of any departmental inquiry and the impugned order is violative and contrary to law laid down in the case of Kusheshwar Nath Pandey vs. State of Bihar & Ors.(2013) 12 SCC 580 ; State of Jharkhand & Ors. vs. Jitendra Kumar Srivastava (2013 [3] JLJR 537 {SC} ) and Most. Sumitra Devi vs. State of Jharkhand (2008 [1] JLJR 486 {FB}).
4. A counter affidavit has been filed by the respondents controverting the averments made in the writ application. In the counter affidavit, it has been inter alia submitted that petitioner was appointed as an Assistant Teacher at Smt. Janki Devi Adarsh Girls High School, Rajdhanwar on 01.01.1982 as untrained Graduate till his superannuation on 31.01.2014 and remained on the same educational qualification i.e. untrained graduate and as per the resolution issued by the Department of Finance contained in memo dated 18.12.1989 and untrained graduate Assistant Teacher is not competent to receive or take benefit of senior scales of completion of his 12 years of services whereas inadvertently petitioner was granted said scale vide memo dated 26.03.2002 by the then District Education Officer, Giridih and accordingly, the petitioner received an amount of Rs.9,91,996/- without raising objection nor bringing the facts to the notice of the respondent authority knowingly or willfully having full knowledge that as per the said resolution of the Finance department he is not competent to receive the said amount being an untrained graduate Assistant teacher. It has further been submitted that as soon as the said fact was detected by the respondent authority regarding the illegal payment to the petitioner, the respondent no.6 District Education Officer, Giridih vide its memo dated 26.07.2013 intimated the petitioner and also directed to put his consent and mode by which he will make the repayment of the said amount to the department which was duly received by the petitioner on 31.07.2013. Since the petitioner knowingly and intentionally received the said excessive amount of the senior scale to which he was not entitled to receive and having full knowledge, he has received the same, so the petitioner has suppressed the 3 fact and misrepresented himself to be competent person to take the benefit of senior scale as such he is guilty for suppression of the facts.
5. Mr. Amit Kumar, J.C. to G.P.II apart from the submission made in the counter affidavit assiduously argued before this Court with vehemence that the decisions cited by the learned counsel for the petitioner are quite distinct and are not applicable to the facts of the case, so the petitioner is not entitled to any benefits. So far as Annexure-4 to the writ application is concerned, it has been submitted that it does not bear the seal or signature of the office or the staffs of the respondent authorities, so the said allegation cannot be relied upon.
6. Having heard learned counsel for the respective parties at length and on perusal of the record, I am of the considered view that the petitioner has been able to make out a case for interference on the following grounds:
(I) Admittedly, the petitioner retired as Assistant Teacher on 31.01.2014.
Prior to retirement from service, the excess payment paid to the petitioner was detected and it was found that inadvertently the petitioner was paid excess payment to the tune of Rs.9,91,996/-. When the fault was detected order was passed vide Annexure-3 to the writ application for recovery of the said amount from the salary and from the retiral dues. In pursuance to Annexure-3 to the writ application, Rs.50,000/- has been recovered from the salary of the petitioner i.e. 5,000/- per month from April, 2013 to January, 2014. But, after retirement from service no amount was liable to be recovered without taking recourse to relevant provision of the Pension Rules. The issue pertaining to recovery from the retiral dues without adhering to the relevant provisions of Pension Rules is no more res integra, in view of the aforesaid decision cited by the learned counsel for the petitioner. Admittedly, after retirement from Government service, no proceeding has been initiated under the relevant provisions of the Pension Rules, so the amount cannot be recovered without taking recourse to Rule 43
(b) of the Pension Rules. It would be apposite to refer to Rule 43 (b) of the Bihar Pension Rules, which reads as under:
"43.(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in 4 departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement:"
(II) The Hon'ble Apex Court in case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Ors. reported in (2015) 4 SCC 334 has been pleased to enumerate the instances relating to recovery of excess payment without fault of the recipient. In para 18 of the said judgment the Hon'ble Apex Court have been pleased:
"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."
(III) The submission of learned counsel for the petitioner finds support from the decision rendered in Kusheshwar Nath Pandey vs. State of Bihar & Ors. reported in (2013) 12 SCC 580 wherein the Hon'ble Apex Court, at paragraph 9 has been pleased to hold:
"9. In our view, the facts of the present case are clearly covered under the two judgments referred to and relied upon by Mr. Rai. The appellant was not at all in any way at fault. It was a time-bound promotion which was given to him and some eleven years thereafter, the authorities of the Bihar Government woke up and according to them the time-bound promotion was wrongly given and that the relevant rules are being relied upon and that too after the appellant had passed the required examination."5
Therefore, the Hon'ble Apex Court has been pleased to hold that the excess payment which has been made, cannot be recovered without taking recourse to Rule 43 (b).
7. In view of the reasons stated in the foregoing paragraphs, the impugned order dated 16.08.2013 vide Annexure-3 to the writ application, is quashed. However, liberty is reserved to the respondents to proceed de novo inquiry, if so legally advised, in accordance with relevant provisions of the Pension Rule.
8. With the aforesaid direction, the writ petition stands allowed.
(Pramath Patnaik, J.) Saket/-