Jharkhand High Court
Baijnath Ram vs State Of Jharkhand & Ors on 10 July, 2015
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4410 of 2010
Baijnath Ram son of Late Punit Ram, resident of Bandhgari (Dipa Toli),
Bariatu, P.O. & P.S. Bariatu, District Ranchi ..... ..... Petitioner
Versus
1. The State of Jharkhand through the Secretary, Department of Finance,
Government of Jharkhand, Project Building, Dhurwa, P.O. Dhurwa, P.S.
Jagannathpur, District Ranchi.
2. Chief Controller of Accounts, Government of Jharkhand, Project
Building, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi.
3. Deputy Controller of Accounts, South Chhotanagpur Division, Finance
(Audit) Department, Government of Jharkhand, Project Building, Dhurwa,
P.O. Dhurwa, P.S.Jagannathpur, District Ranchi. .... Respondents
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CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioner : Mr. Dr. Shree Krishna Pandey, Advocate
For the Respondents : Mr.Yogendra Prasad (J.C. to S.C.I)
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th
CAV on:15 May, 2015 Pronounced on 10/07/ 2015
Per Pramath Patnaik, J.:
1. In the aforesaid writ application, the petitioner has inter alia prayed
for issuance of a writ/order/directions for payment of retiral benefits like
pension, gratuity etc. and arrear dues in respect of promotion of the
petitioner to the post of Senior Auditor, Grade-I w.e.f. 11.02.1993 and for
fixation of salary in the scale prescribed for Senior Auditor Grade-I and
fixation of pension and other retiral benefits. The petitioner has further
prayed for quashing of order dated 24.10.2007 and memo dated 03.04.2010
(Annexure-11series) by which the petitioner has been reverted to Senior
Auditor, Grade-II from Senior Auditor, Grade-I and Rs.1,30,282/- has been
deducted from the pension and leave encashment in violation of principles of
natural justice read with Section 43-B of the Bihar Pension Rules and for
direction upon the respondents to pay the retiral dues of the petitioner on the
basis of pay scale of Senior Auditor, Grade-I and for refund of the amount of
Rs.1,30,282/- deducted/recovered from the due pension and leave
encashment.
2. The factual matrix as delineated in the writ application in a nutshell is
that the petitioner joined in the Department of Finance (Audit) as Auditor on
18.06.1986in the parent State of Bihar. Subsequently, the petitioner was promoted as Senior Auditor w.e.f. 01.01.1993 which he joined on 2 11.02.1993 on sanctioned post in the scale of Rs.1500-2750/- in the light of memo no.231 CAG, Bihar dated 15.02.1999, vide annexure-1 to the writ application. Thereafter the petitioner was promoted on 02.02.1999 to the cadre of Senior Auditor, Grade-II in the A.G., Government of Bihar, Patna. Subsequently, the petitioner was promoted to the post of Senior Auditor in the Department of Finance (Audit), Government of Bihar w.e.f. 11.02.1993, vide letter dated 06.11.1995 as per annexure-2 to the writ petition. After about ten years of continuous service as Senior Auditor, Grade-II, the petitioner's seniority was revised vide order dated 13.02.2003, vide annexure-3 to the writ petition. As per the seniority list to Grade-I of Senior Auditor, the petitioner stood at Serial no.150. Again vide office order dated 22.08.2003, the petitioner was deputed as Senior Auditor, North Chhotanagpur Division, Hazaribag, as per annexure-4 to the writ application and finally, the petitioner was allocated to Jharkhand cadre. While continuing as Senior Auditor, Grade-I suddenly without any rhyme and reason the petitioner has been reverted vide office order dated 24.10.2007 to the post of Senior Auditor, Grade-II with retrospective effect from 01.01.1996. As per the clarification of the Chief Secretary of the State of Jharkhand, vide letter dated 06.07.2009 any excess payment could not be recovered by an ex-parte order of the Government as evident from annexure- 9 to the writ application. Notwithstanding the said clarification, vide annexure -9 to the writ application, Rs.1,30,282/- were recovered from the pensionary benefits and leave encashment as per memo dated 03.04.2010 after retirement of the petitioner on 30.11.2008.
3. Being aggrieved by the impugned order of reversion and recovery, the petitioner submitted representations to the authorities. But, the said representations have fallen on deaf ears of the respondents. Left with no alternative, efficacious and speedy remedy, the petitioner has approached this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances.
4. Counter affidavit has been filed on behalf of respondent nos.1 and 2 repudiating the averments made in the writ application. In the counter affidavit, it has been inter alia stated that the petitioner was posted as Senior Auditor, Grade-II. However, the State of Bihar in the Department of Finance issued letter dated 29.11.2005 identifying 74 need based posts of Senior Auditor, Grade-I officers w.e.f. 1996 but subsequently, the State of Bihar 3 vide office order dated 16.04.2007 has reverted 76 Senior Auditor, Grade-I in Senior Auditor in Grade-II and granted the scale of Grade-II to 76 Auditors. As a result of which, 7 Auditors who had previously been given the scale of Senior Auditor, Grade-I had been reverted to Grade-II scale and the petitioner is one of those 7 officers, who had been reverted to Senior Auditor, Grade-II and by the time said decision was taken by the State of Bihar, the petitioner had been allotted to Jharkhand cadre. Hence, the State of Bihar was not the competent authority to implement the said order and accordingly, State of Jharkhand has issued memo dated 24.10.2007 reverting the petitioner to the post of Grade-II, Senior Auditor, vide annexure-A to the counter affidavit. In pursuance to annexure-A, the amount withdrawn by the petitioner in excess to what he was entitled w.e.f. 01.01.1996 was to be recovered from him. Finally, the order granting benefit of ACP to the petitioner was issued vide memo dated 04.10.2010, vide annexure-B to the counter affidavit. It has further been stated that from perusal of annexure-B, it appears that the petitioner has been granted the benefit of first ACP w.e.f. 09.08.1999 and on completion of 20 years of service petitioner has been found entitled to benefit of MACP w.e.f. 01.01.2008 and on grant of benefit of MACP, scale has been revised and the petitioner has been granted the benefit of ACP and MACP only on 04.10.2010 and the delay in fixation occurred on grant of benefit of ACP and MACP.
5. During pendency of the writ application an amendment application was filed on behalf of the petitioner and a counter affidavit has also been filed on behalf of respondent nos.1 and 2 to the amended writ petition.
6. In the counter affidavit to the amended writ petition, it has been stated and submitted that in view of the recommendations of the fifth pay commission the need based post was identified and since the post of Senior Auditor, Grade-I was reduced, the petitioner had to be reduced to the rank of Senior Audition, Grade-II. However, the petitioner retained to the scale of pay which he was receiving, it was submitted that since Government of Bihar decided to do away with the concept of time bound promotion and selection grade, the need based post were identified and as per direction of the State Government Senior Auditor, Grade-II were to be absorbed against such posts. Since at the relevant time, State of Jharkhand had not come into existence, the policy decision of the State of Bihar was binding upon the State of Jharkhand, the reversion of the petitioner was on account of need 4 based posts being identified and not on account of punishment and the petitioner who was one of the seventh Senior Auditor, Grade-I, had been reverted to Senior Auditor, Grade-II on account of recommendation of fifth pay revision committee. It has further been submitted that from perusal of Annexure-A to the counter affidavit it shall appear that even the petitioner was in the know of annexure-A, he chose not to challenge the same and the recovery has attained finality by the indolent act of the petitioner. It has further been submitted that earlier a sum of Rs.2,19,450/- had been paid to the petitioner under the head of unutilized pay. However, he has been found entitled to a sum of Rs.2,78,516/- under the head of account of MACP, granted to the petitioner the difference amount of Rs.59,066/- which has been sanctioned in favour of the petitioner vide memo dated 11.03.2014, vide annexure-A to the counter affidavit. So far as final pension is concerned, request has already been made to the Accountant General, Jharkhand to issue authority slip for payment of pension, gratuity and commutation of pension in favour of the petitioner, vide annexure-B to the counter affidavit. So far as Group Insurance and Provident Fund money is concerned, Group Insurance equivalent to Rs.95467/- has been paid by Bill no.89/08-09 on 20.12.2008 and Provident Fund equivalent to Rs.5,25,651/- has been paid by the Bill no.102/08-09 dated 11.12.2009, vide annexure-C to the counter affidavit. It has further been submitted that since recovery has been passed during the service of the petitioner there is no requirement of resorting to provisions of Rule 43(B) of Jharkhand Pension Rules
7. Heard Mr. Dr. Shree Krishna Pandey, learned counsel for the petitioner and Mr. Yogendra Prasad (J.C. to S.C.I), appearing for the respondents.
8. During course of hearing, learned counsel for the petitioner has assiduously urged the following points for consideration:
(I) That the reversion of the petitioner vide order dated 24.10.2007 from Senior Auditor, Grade-I to Senior Auditor, Grade-II with retrospective effect from 01.01.1996 is completely arbitrary, whimsical and illegal and in violation of principles of natural justice.
(II) That the recovery of excess of Rs.1,30,282/- vide memo dated 03.04.2010 is illegal being infraction of Rule 43 (B) of the Bihar Pension Rules.
5To buttress his argument, learned counsel for the petitioner has relied on Full Bench decision of this Court reported in [2008 (1) JCR 381 (Jhr) (FB)] (Smt. Normi Topno Vs. State of Jharkhand & Ors.) and the decisions rendered in W.P.(S) No.3314 of 2009 (Deo Naresh Das Vs. State of Jharkhand & Ors.) and in W.P. (S) No.1564 of 2010 (Bal Krishna Dubey Vs. State of Jharkhand & Ors.).
9. Learned counsel for the respondents on the other hand has referred to the decision of the Hon'ble Apex Court reported in [2012 (4) JCR 144 (SC)] (Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors.).
10. On perusal of the decision cited by the learned counsel for the petitioner in the case of Smt. Normi Topno Vs. State of Jharkhand & Ors., Rule 43 B of the Bihar Pension Rules has been illuminatively discussed and the points have been crystallized in para 47 of the decisions, which is reproduced hereinbelow:
"47. In view of the above discussions, we arrive at the following conclusion. To sum up :-
"After retirement there is no relationship of employer and employee and as such no recovery can be made from the retiral benefits without following procedure of law as provided under Rule 43(b) of the Bihar Pension Rules. Hence, without fulfilling the conditions under Rule 43(b) and without cancelling the order of promotion after enquiry by the competent authority, pension and other retiral benefits cannot be recovered that too without giving opportunity to the retired employee and without giving any finding with reference to the mis-representation or misconduct on the part of the concerned employee or any other employee merely on the recommendation of audit objection."
11. 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).6
(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."
12. As a cumulative effect of the facts, reasons and judicial pronouncements and on consideration of the materials on record and Rule 43- B of the Jharkhand Pension Rules and the decision of the Hon'ble Apex Court in case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Ors. as well as the Full Bench decision of this Court in case of Smt. Normi Topno Vs. State of Jharkhand & Ors., the impugned order of recovery dated 03.04.2010 is not sustainable in the eye of law and is liable to be quashed.
13. Thus, the impugned orders dated 24.10.2007 and 03.04.2010 (Annexure-11 series) are quashed and the respondents are directed to refund the recovered amount of Rs.1,30,282/- to the petitioner forthwith within a period of eight weeks from today and accordingly, unpaid admissible retiral benefits be paid to the petitioner within the aforesaid period.
14. With the aforesaid direction, the writ petition is allowed.
(Pramath Patnaik, J.) Saket/-