Jharkhand High Court
Deodhari Saha & Ors vs State Of Jharkhand & Ors on 13 July, 2012
Equivalent citations: 2013 (1) AJR 35
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 2056 of 2010
1. Deodhari Saha
2. Ram Sagar Singh
3. Nand Kishore Prasad Deo,
4. Basudeo Sah
5. Rajendra Prasad Singh
6. Vijay Kumar Singh
7. Rajendra Thakur
8. Upendra Narayan Rai
9. Umesh Prasad Mandal
10. Siyaram Singh
11. Deep Narayan Modi
12. Bhagwan Mandal
13. Nityanand Singh
14. Dip Narayan Thakur ... ... ... ... ... Petitioners
Versus
1. The State of Jharkhand, through the Secretary,
Industries Department, Nepal House, Ranchi
2. Director of Industries, Handloom and Sericulture,
Industries Department, Engineers' Building, SectorIII,
Dhurwa, Ranchi
... ... ... ... Respondents
CORAM: HON'BLE MR. JUSTICE D. N. PATEL
For the Petitioner: Mr. S.B. Gadodia, Sr. Advocate
For the Respondents: Mr. S.K. Verma, S.C.I
09/ Dated: July 13, 2012
1. The present petition has been preferred mainly against the order dated
03.02.2010(Annexure10 to the memo of petition) as well as the order dated 26.12.2007 (Annexure10/1 to the memo of petition) whereby it has been decided by the respondents that the petitioners' appointment as Overseer in the year 197879 was a promotion and, therefore, the time bound promotion given to the petitioners was not due at the relevant time and, therefore, the same has been ordered to be withdrawn by annexure10 to the memo of petition.
2. Counsel for the petitioners submitted that initially the petitioners were appointed as Kit Palak in the year 1978. Thereafter, as stated in paragraph 5 of the memo of petition, a public advertisement was issued in a daily local dated 13th November, 1976 for the appointment of the Overseer in the Department of 2 Industries of the then State of Bihar. Petitioners applied for the post through Employment Exchange. After due process of law, the petitioners were selected. It is further submitted by the counsel for the petitioners that total 160 candidates were selected for the post of Overseer. A panel was prepared. Petitioners' name were included in the selected list. Out of the total 160 candidates, 29 candidates were initially appointed and thereafter in another lot, 13 candidates were appointed as Overseer. Though this was a fresh appointment upon altogether a different post, in appointment letters of the petitioners, it has been referred as 'Promotion', but in fact, it was not a promotion at all. It is further submitted by the counsel for the petitioners that thereafter the petitioners were given for the first time 1st time bound promotion in the year 1988 which has been withdrawn by the respondents vide impugned order dated 03.02.2010 and by order at Annexure10/1 dated 26.12.2007, the respondents have decided that initial appointment of the petitioners was as Overseer was not a fresh appointment but it was a promotion. Counsel for the petitioner submitted that both these orders are patently dehors the law and passed without any notice or without any opportunity of being heard to the petitioners. Some of the petitioners have retired by now and after a lapse of more than two decades now the order of recovery has been passed which is against the principles laid down by Hon'ble Supreme Court in various judgment. Counsel for the petitioners relied upon a decision rendered in (2009) 3 S.C.C. 745 and submitted that in view of the decision, if there is no misrepresentation or fraud played upon by the petitioners, at the time of getting any promotion or at the time of any higher pay scale, the same cannot be ordered to be recovered even though it was given by mistake and, therefore, orders at Annexure10 and at Annexure 10/1 deserve to be quashed and set aside.
3. Counsel for the State submitted that looking to the appointment orders of the petitioners as Overseer, it was a promotion given to the petitioners and once a promotion is given to the petitioners, they are not entitled to get time bound promotion within a shorter period and therefore, their promotion itself was illegal and therefore the additional time bound promotion was ordered to be cancelled and order of recovery has also been passed and, therefore, no illegality has been committed by the respondents. 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 orders impugned passed by the respondents at Annexure10 and Annexure10/1 mainly for the 3 following facts and reasons:
(i) The present petitioners were initially appointed as "Kit Palak"
in the year 1978, by an order at Annexure1 to the memo of petition.
(ii) It has been stated in paragraphs 5, 6 and 7 of the memo of petition as under:
"5. That it is stated that an advertisement was published in daily newspaper on 13th November, 1976 for appointment on vacant posts of Overseer in the Department of Industries of the then State of Bihar. It is further stated that applications were invited through Employment Exchange. It is further stated that the petitioners applied, through Employment Exchange, which was forwarded to the department. According to the advertisement, interview was held for the post of Overseer on 15.5.1977 at Patna for Oral Test and for verification of certificates to ascertain that the petitioners were eligible for appointment to the post of overseer.
6. nd test for selection for the post of Overseer was held at That it is stated that 2 Ranchi from 16th February to 18the February, 1978 in Central Tasar Research Station, Hehal, Ranchi. It is stated that 160 persons were selected for appointment for the post of Overseer and a panel was prepared in which names of all the petitioners were included.
7. That it is stated that 29 candidates in the first lot were appointed on the post of Overseer from the above mentioned panel prepared after Oral Test and after verification of certificates as well as after the second test was held at Ranchi between 16 to 18 February, 1978 as mentioned herein above."
(iii) In pursuance of the aforesaid facts, a public advertisement was issued by the erstwhile State of Bihar on 13th November, 1976 for the post of Overseer. Petitioners and other applicants applied through Employment Exchange. They applied for altogether new post namely Overseer and they appeared in the oral and interview test on 15.05.1977 at Patna and a select list was prepared for the 160 successful candidates. Petitioners' names were included in the select list. It further appears from the aforesaid facts that initially the respondentsauthorities appointed 29 candidates on the post of Overseer and thereafter 13 more candidates were appointed as Overseer. Paragraphs 5, 6 and 7 have not denied by the respondents in their counter affidavit. Looking to these facts coupled with the annexures, it appears that petitioners were appointed on the post of Overseer in the year 1978. It further appears that the word "promotion" has been mentioned in the appointment letter. Merely because word "promotion" is used, it is not a promotion at all because no promotion can be given to any person within six months or within couple of months. Petitioners' names were enshrined in the select list, for the post of Overseer. It further appears that the petitioners' appointment on the post 4 of Overseer was a direct appointment.
(iv) It further appears from the facts that abruptly the order was passed vide annexure10/1 dated 26.12.2007 and it has been stated that the promotion was given within six months from the post of Kit Palak to the post of Overseer was illegal and accordingly ordered for recovery of the amount already paid to the petitioners. These orders were passed after three decades of their appointment and that too without giving any notice or opportunity of being heard. These are patently illegal orders. Some of the petitioners have already retired. Had the opportunity of being heard been given to the petitioners, they could have pointed out that there was no promotion on the post of Overseer, rather, as it has been stated in paragraphs 5, 6 and 7 of the memo of petition, that it was a fresh appointment itself. This aspect of the matter has not been appreciated at all by the respondents while passing the impugned orders at Annexures 10 and 10/1.
(v) Looking to Annexure10 dated 03.02.2010 it appears that some reference of the Finance Department's notices and it has been stated that promotion which was given from the post of Kit Palak to Overseer was not in the same cadre. It appears that the order at Annexure10 has been passed without any application of mind. The logic which is advanced in the order at Annexure10 is in favour of the present petitioners, because initially the petitioners were working as Kit Palak. They have never been promoted on the post of Overseer because it was never a promotion post at all. The feeder cadre of the pot of Overseer is not a post of Kit Palak and, therefore, altogether another post on which the petitioners have been appointed in pursuance of a public advertisement and after oral interview and test. The post of Kit Palak and Overseer are not in the same cadre. This is the contention of the petitioners. Thus the reasons which are given at Annexure10 is full of nonapplication of mind. In view of these facts, the order at Annexure10 also deserves to be quashed and set aside.
(vi) It appears that there is a word "promotion" in the appointment letter of the petitioners as Overseer. Because of this word "promotion" all confusion has arisen. It ought to have been kept in the mind by the State authorities that the word "promotion" is not a guiding 5 factor. They have to actually see that whether a post of Overseer is a promotional post from feeder cadre post of "Kit Palak" or not. In fact the post of "Kit Palak" is not the feeder cadre post for the post of Overseer as stated herein above, as per logic advanced in the impugned order at annexure10 to the memo of petition. The post of Overseer is altogether another post for which the advertisement was issued on 13 th November, 1976. In pursuance of the said public advertisement, the petitioners along with others applied for the post of Overseer through the Employment Exchange. The petitioners appeared in the oral test and interview and after proper verification of the certificates, the petitioners were appointed for the post of Overseer. A panel was also prepared in which the names of the petitioners were included. 160 persons were selected for appointment for the post of Overseer. Initially 29 candidates were appointed on the post of Overseer. In the another lot, 13 more persons were selected for the post of Overseer.
(vii) There is also recovery order passed by respondent at Annexure 10/1. The detailed reasons have been given in counter affidavit for recovery. In fact, reasons must have been assigned in the impugned order. It has been held by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and anr. v. The Chief Election Commissioner, New Delhi and ors., as reported in (1978) 1 SCC 405, especially at paragraph 8, as under:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji :
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older."
(Emphasis supplied) In view of the aforesaid decision also, no reasons can be supplied by the State authorities to a nonspeaking order by virtue of a counter affidavit. Looking to the impugned order at Annexure 1 to the memo 6 of petition, it appears that it is absolutely a nonspeaking order, since no reasons have been assigned for passing the order of recovery of sizable amount of salary for the period, running from 1st July, 2002 to 31st December, 2008.
(viii) If the excess amount is paid to an employee as salary, it has been held by the Hon'ble Supreme Court in case of Shyam Babu Verma & others Vs Union of India & others, as reported in (1994) 2 SCC 521, especially at paragraph no. 11, 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 330560 but as they have received the scale of Rs 330560 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."
(Emphasis supplied)
(ix) It has also been held by the Hon'ble Apex Court in the case of Sahib Ram v. The State of Haryana & ors., as reported in 1994(5) SLR 753, at paragraphs 5, 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 revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of higher payscale 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. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."
(Emphasis supplied)
(x) It has been held by the Hon'ble Supreme Court in case of Bihar State Electricity Board & Another Vs. Bijay Bhadur & Another, reported in (2000) 10 SCC 99, especially in paragraph nos. 7, 8, 9, 10 and 11, which read as under:
"7. Admittedly, the writ petitioners have been allowed annual increments even without passing the Hindi Noting and Drafting Examination which according to Mr Pramod Swarup, learned advocate appearing for the appellant Board has become a condition precedent and part of their service conditions and question of there being any entitlement dehors the same does not and cannot arise. Mr Swarup contended that Regulation 8 is rather categorical on this score as to the date of entitlement and since its deemed effect as a part of the condition of service, the appellant Board is within its authority and jurisdiction to deduct the amounts paid. In short, the submission of Shri Swarup on behalf of the appellant Board is that since the writ petitioners are not entitled 7 to receive any increment, question of retention of the amounts paid whether by mistake of fact or otherwise does not and cannot arise. We, however, are not in a position to lend any credence to the same by reason of the fact that while the increments granted have been sought to be recovered but promotions given have not been withdrawn or cancelled, the Board being the governmental agency and fairness being the only accepted methodology cannot maintain a dual standard on the basis of the selfsame Regulation. Regulation 7 of the Regulation itself provides that there shall not be any increment or any promotion nor would the employees be allowed to cross the efficiency bar. The petitioners have been given due promotions and as a matter of fact the petitioner in CWJC No. 4576 of 1997 is posted as an Accountant in the Electricity Supply SubDivision at Sheohar Town in District Sheohar on promotion. Of the dual benefits conferred the Board however thus withdrew only one part of the benefit under the resolution whereas it lent a blind eye as regards the other part of the benefit flowing from the resolution. This, in our view is not permissible since dual standards are not only nonacceptable but ought to be avoided more so by reason of the factum of the appellant being an authority within the meaning of Article 12 of the Constitution.
8. The contention in support of the appeal as regards the deemed incorporation in the terms and conditions of service cannot also find any support by reason of the fact that unilateral change of terms need not be had. There is no documentary evidence available on the record of this matter through which even an intimation to the staff can be said to have been effected and in the absence of which question of affording any credence to the submission of Mr Swarup on this score does not arise.
9. Further, an analysis of the factual score at this juncture goes to show that the respondents appointed in the year 1966 were allowed to have due increments in terms of the service conditions and salary structure and were also granted promotions in due course of service and have been asked after an expiry of about 1415 years to replenish the Board exchequer from out of the employees' salaries which were paid to them since the year 1979. It is on this score the High Court observed that as both the petitioners have passed the examination though in the year 1993, their entitlement for relief cannot be doubted in any way.
10. The High Court also relied on the unreported decision of the learned Single Judge in the case of Saheed Kumar Banerjee v. Bihar SEB. We do record our concurrence with the observations of this Court in Sahib Ram case and come to a conclusion that since payments have been made without any representation or a misrepresentation, the appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The act or acts on the part of the appellant Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice. The concept of fairness has been given a goby. As such the actions initiated for recovery cannot be sustained under any circumstances. This order however be restricted to the facts of the present writ petitioners. It is clarified that Regulation 8 will operate on its own and the Board will be at liberty to take appropriate steps in accordance with law except however in the case or cases which has/have attained finality.
11. While we record our concurrence as noted above, in regard to the decision of the matter in issue and in particular reference to the factual aspect we do not feel inclined to accept the observations of the High Court pertaining to Regulation 8 of the Regulation. Be it noted that the High Court in para 13 of the judgment observed that the Board shall not be allowed to pass an order for recovery of the said amount as the said 8 amount has already become due to them. This observation sounds contrary to Regulation 8 of the Regulations which records that no arrears of the stopped increments shall be payable even though the person would pass the examination later on. We, therefore, record our disapproval to this observation of the High Court."
(Emphasis supplied)
(xi) It has further been held by this Court in the case of Balkeshwar v. M/s Central Coalfields Ltd. and another, as reported in 2001 (1) JCR 175, especially at paragraphs 4 and 10, as under:
"4. The respondents in their counter affidavit have accepted that the petitioner retired under V.R. Scheme w.e.f. 20th August, 1999. However, plea has been taken that the date of birth was recorded as 26th October, 1941 and the date of appointment was 23rd November, 1958. On the basis of date of appointment, the petitioner having found to have worked for 42 years 11 months and 3 days and as no person can work more than 42 years, the excess payment made has been adjusted from the retiral benefits.
10. In the circumstances, the respondents cannot deduct any amount or adjust from the salary of the petitioner on the ground that he has worked for more than 11 (eleven) months beyond the period of retirement."
(Emphasis supplied)
(xii) So far the issue relating to recovery is concerned, it has been held by the Hon'ble Patna High Court in the case of Most. Kanti Devi & Ors. v. The State of Bihar & Ors., as reported in 2003 (1) PLJR 9, especially at paragraphs 4 and 5, as under:
"4. Rightly or wrongly, the petitioner Sridhar Pandey was permitted to work and draw his salary. The period of which he worked he will be entitled to the emoluments. If he was given work as a result of any collusion between the officials it is upto the State Government to take action against the officer concerned, who permitted this extension of service beyond retirement. On record, there is nothing against the petitioner that he may have committed any misrepresentation or fraud so as to extract from the period of retirement.
5. In the circumstances, there is no occasion for the recovery of the amount which was paid to the petitioner for having worked but after the period of retirement. In so far as the pension is concerned, the heirs of Sridhar Pandey will be entitled to any arrears of pension and consequential family pension."
(Emphasis supplied)
(xiii) It has been held by the Hon'ble Supreme Court in case of Purshottam Lal Das & others Vs. State of Bihar & others, reported in (2006) 11 SCC 492, especially in paragraph nos. 7, 10 and 11, which read as under: "7. So far as the recovery is concerned, in the normal course if the promotion/appointment is void ab initio, a mere fact that the employee had worked in the post concerned for long cannot be a ground for not directing recovery. The cases relied upon by the learned counsel for the State were rendered in a different backdrop. In those cases the appellants were guilty of producing forged certificates or the appointments had been secured on nonpermissible grounds. In that background this Court held that recovery is permissible. On the contrary, the fact situation of the present case bears some similarity to Sahib Ram v. State of Haryana, Bihar SEB v. Bijay Bhadur and State of Karnataka v. Mangalore University NonTeaching Employees' Assn. 9
10. The High Court itself noted that the appellants deserve sympathy as for no fault of theirs, recoveries were directed when admittedly they worked in the promotional posts. But relief was denied on the ground that those who granted ( sic ) had committed gross irregularities.
11. While, therefore, not accepting the challenge to the orders of reversion on the peculiar circumstances noticed, we direct that no recovery shall be made from the amounts already paid in respect of the promotional posts. However, no arrears or other financial benefits shall be granted in respect of the period concerned."
(Emphasis supplied)
(xiv) It has been held by the Hon'ble Supreme Court in case of Col. B.J. Akkara (Retd.) Vs. Government of India & others, reported in (2006) 11 SCC 709, especially in paragraph nos. 27, 28, 29, 30, which read as under:
"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 761999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana , S hyam Babu Verma v.
Union of India , Union of India v.
M. Bhaskar and V. Gangaram v.
Regional Jt. Director ):
(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.
29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to inservice employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 761999 till the issue of the 10 clarificatory circular dated 1192001. Insofar as any excess payment made after the circular dated 1192001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made.
30. A faint attempt was made by the learned Additional Solicitor General appearing for the respondents to contend that all such wrong payments could be recovered and at best the pensioners may be entitled to time or instalments to avoid hardship. No doubt in Union of India v. Sujatha Vedachalam this Court did not bar the recovery of excess pay, but directed recovery in easy instalments. The said decision does not lay down a principle that relief from recovery should not be granted in regard to emoluments wrongly paid in excess, or that only relief in such cases is grant of instalments. A direction to recover the excess payment in instalments or a direction not to recover excess payment, is made as a consequential direction, after the main issue relating to the validity of the order refixing or reducing the pay/allowance/pension is decided. In some cases, the petitioners may merely seek quashing of the order refixing the pay and may not seek any consequential relief. In some cases, the petitioners may make a supplementary prayer seeking instalments in regard to refund of the excess payment if the validity of the order refixing the pay is upheld. In some other cases, the petitioners may pray that such excess payments should not be recovered. The grant of consequential relief would, therefore, depend upon the consequential prayer made. If the consequential prayer was not for waiving the excess payment but only for instalments, the court would obviously consider only the prayer for instalments. If any decision which upholds the refixation of pay/pension does not contain any consequential direction not to recover the excess payment already made or contains a consequential direction to recover the excess payment in instalments, it is not thereby laying down any proposition of law but is merely issuing consequential direction in exercise of judicial discretion, depending upon the prayer for consequential relief or absence of prayer for consequential relief as the case may be, and the facts and circumstances of the case. Many a time the prayer for instalments or waiver of recovery of excess is made not in the pleadings but during arguments or when the order is dictated upholding the order revising or refixating the pay/pension. Therefore, the decision in Sujatha Vedachalam will not come in the way of relief being granted to the pensioners in regard to the recovery of excess payments."
(Emphasis supplied)
(xv) It has been held by this Court in the case of Laxman Prasad Gupta v. The State of Jharkhand & ors., as reported in 2008(3) JCR 655 (FB), at paragraph no. 20, as under:
"20. In view of the above discussion, we come to the following conclusion. To sum up:
"In the light of the absence of any material to show that the excess amount was received by the petitioner on misrepresentation, collusion, fraud or negligence, the said excess amount cannot be recovered out of the retiral dues, after retirement, without following the procedure contemplated under Rule 43(b) of the Bihar Pension Rules. In this case the said procedure, which is mandatory, has not been followed. Therefore, the action of the respondents for recovery of the amount from the retiral dues is not valid in law."
(Emphasis supplied) (xvi) It has further been held by this Court in the case of Janardan 11 Prasad Saha & Anr. v. State of Jharkhand & Ors., as reported in 2008 (4) JCR 142, at paragraphs 2 and 4, as under:
"2. Learned counsel for the petitioners submitted that the order for revision of the petitioners' pay was issued by the respondentsBank and there was no representation/ misrepresentation or fraud played by the petitioners for obtaining the said revised scale. The said amount, which was paid to the petitioners by the Bank towards the arrears of salary on the basis of the revision of the pay scale, cannot be recovered/adjusted from the retiral benefits of the petitioners. There is complete bar for such adjustments. The petitioners are not liable to refund the aid amount, even if subsequently the order of revision of pay was cancelled. Learned counsel placed reliance on a decision of the Supreme Court rendered in Sahib Ram v. The State of Haryana and others, 1994 (5) SLR 753 and a Full Bench decision of this Court in Laxman Prasad Gupta v. The State of Jharkhand and others W.P. (S) No. 3793/2004 reported in 2008 (3) JCR 655 (FB): JLJR 2007 (4) 459.
4. I have heard learned counsel for the parties and considered the facts and materials on record as also the judicial pronouncements. In Sahib Ram case (supra), the Supreme Court has specifically held that any amount paid to an employee without his misrepresentation cannot be recovered. In Laxman Prasad Gupta case (supra), a Full Bench of this Court has held that after retirement, there is no relationship of employer and employee between the parties and the recovery out of the retiral dues cannot be made, except by following the due procedure established by law. No contrary rule or decision has been produced on behalf of the respondents."
(Emphasis supplied) (xvii) It has been held by the Hon'ble Supreme Court in case of State of Bihar & Others Vs. Pandey Jagdishwar Prasad, reported in (2009) 3 SCC 117, especially in paragraph nos. 16, 19, 23 and 24, which read as under:
"16. Moreover, for the sake of argument, even if we consider that the respondent had fraudulently entered another date of birth in his service book, as had been alleged, it should have come to the notice of the authorities during his course of service, and not after he had attained the age of superannuation after the expiry of the date mentioned in the service book which was based on the affidavit of the respondent. To the contrary, none of the officials responsible had noticed this during his service period, even during his time of promotions when the service book was required to be inspected by the officials. Therefore, it clearly points out to the gross negligence and lapses on the part of the authorities concerned and in our view, the respondent cannot be held responsible to work beyond his date of birth as mentioned in the matriculation certificate when admittedly in the service book after the affidavit, some other date of birth was also evident.
19. It is not needed for this Court to verify the veracity of the statements made by the parties. If at all the respondent entered the second date of birth at a subsequent period of time, the authorities concerned should have detected it and there should have been a detailed enquiry to determine whether the respondent was responsible for the same. It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee .
23. Without going into the question whether the appellant was justified after completion of two years from the actual date of retirement to deduct two years' salary and other emoluments paid to the respondent, we may say that since the respondent had worked during that period without raising any objection from the side of the appellant and the appellant had got works done by the respondent, we do not think that it was proper at this stage to allow deduction from his retiral benefits, the amount received by him as salary, after his actual date of retirement.
24. Considering the fact that there was no allegation of misrepresentation or fraud, which could be attributed to the respondent and considering the fact that the appellant had allowed the respondent to work and got works done by him and paid salary, it would be unfair at this stage to deduct the said amount of salary paid to him. Accordingly, we are in agreement with the Division Bench decision that since the respondent was allowed to work and was paid salary for his work during the period of two years after his actual date of retirement without raising any objection whatsoever, no deduction could be made for that period from the retiral dues of the respondent ."
(Emphasis supplied) 12 (xviii) It has been held by the Hon'ble Supreme Court in case of Syed Abdul Qadir and Others Vs. State of Bihar and Others reported in (2009) 3 SCC 475, especially in paragraph nos. 57, 58, 59, 60 and 61, which read as under:
"57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if ( a ) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and ( b ) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
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.
59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counteraffidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.
60. Learned counsel also submitted that prior to the interim order passed by this Court on 742003 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 22C 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, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be 13 refunded to them within three months from the date of receipt of copy of this judgment."
(Emphasis supplied) (xix) It has been held by the Hon'ble Supreme Court in case of Paras Nath Singh Vs. State of Bihar & Others reported in (2009) 6 SCC 314, especially in paragraph nos. 4 & 5, which read as under: "4. Having heard the learned counsel for the parties and considering the fact that the State authorities had allowed the appellant to work for about 10 years and paid the salary at the enhanced rate, in which the appellant had no role to play except that he had given an undertaking to the authorities that in the event his first timebound promotion was cancelled, in that case, he would be bound to refund the same.
5. Having considered the fact that the appellant was only a Class IV employee in the State of Bihar and almost an illiterate person and did not know the implications of giving such undertaking and in the absence of any fraud and misrepresentation attributed to the appellant and the amount being not so excessive, in particular Rs 1,01,529.50, out of which certain amount has already been recovered from the salary of the appellant by the State authorities, we are of the view that a lenient view should be taken and the amount already paid by the State authorities to the appellant shall not be recovered. However, whatever amount that has already been recovered, shall not be paid back to the appellant."
(Emphasis supplied)
(xx) This Court in the case of Ramchandra Singh v. State of
Jharkhand & Ors., as reported in 2009 (3) JCR 455 as well as in Dinesh Kumar Sinha Versus Jharkhand State Electricity Board & Ors reported in 2012 (2) J.C.R. 315 (Jhr) has also taken into consideration the ratio laid down in the aforesaid cases.
5. In view of the decisions referred above, it has been held by Hon'ble Supreme Court as well as by the Full Bench of this Court and by the other decisions rendered by this Court that if any employee is given any salary without any misrepresentation being committed by the employee or without there being any fraud played upon by that employee, even though the salary paid by mistake cannot be recovered. Few of the petitioners have already been retired from their services by now. In the facts and circumstances of the case, there is no misrepresentation or fraud played upon by the petitioners for getting appointment on the post of Overseer nor there is any misrepresentation or fraud played upon by the petitioners for getting first time bound promotion approximately in the year 1988 and, therefore, the order of recovery passed by the respondentsauthorities at Annexures 10 and 10/1, deserve to be quashed and set aside. Moreover, these orders have been passed 13 years back and that too without any application of mind. Therefore also, there is gross error of principle of law laid down by Hon'ble Supreme Court and hence also, the orders at Annexure 10 and 10/1 deserve to be set aside.
146. As a cumulative effect of the aforesaid facts and reasons and judicial pronouncements, the orders passed by the respondentsauthorities dated 03.02.2010 annexed as annexure 10 to the memo of petition and the order dated 26.12.2007 passed by the respondentsauthorities which is annexed as annexure 10/1 to the memo of petition, are illegal and the same are hereby quashed and set aside.
This petition is allowed and disposed of.
Manoj/CP.2 (D. N. Patel, J)