Jharkhand High Court
Indu Bhushan Prasad vs State Of Jharkhand & Ors. on 28 March, 2012
Equivalent citations: 2012 (3) AIR JHAR R 340, (2012) 3 JCR 87 (JHA)
Author: P.P. Bhatt
Bench: P.P. Bhatt
IN THE HIGH COURT OF JHARKHAND AT RANCHI
WP(S) No. 3558 of 2003
Indu Bhushan Prasad ... PETITIONER.
Versus
1. State of Jharkhand,
2. Chief Malaria Officer, Ranchi,
3. Civil Surgeon, Deoghar,
4. Accountant General, II, Bihar, Patna (Incharge of Pension-4
Section).
5. Principal Accountant General-I, Jharkhand, Ranchi, and
6. Incharge, Medical Officer, Primary Health Centre, Karon,
Deoghar. ... RESPONDENTS.
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Coram: THE HON'BLE MR JUSTICE P.P. BHATT
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For the Petitioner(s) : Mr. Chandra Shekhar Prasad, Adv.
For the Respondent(s) : M/s. Rajesh Kumar, G.P.-V, Altoy Hussain- J.C. to
G.P.-V,
For respondent Nos. 4 and 5: Mr. S. Srivastava.
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11/28.03.2012: Heard learned counsel for the parties. With consent of the learned counsel for the parties, this writ petition is taken up for final hearing at this stage. Learned counsel appearing for the respondents waives notice on behalf of respondents.
2. The petitioner, by way of filing this writ petition under Article 226 of the Constitution of India, has prayed for quashing of letter No. Pen-4-Sa-385 dated 17.6.1998 (Annexure-3), whereby, respondent No. 4 has been directed for deduction of salary of petitioner which has been given to petitioner 17 years ago from the date of retirement of the petitioner. It has further been prayed for quashing the order issued by respondent No. 6, whereby, the provisional pension of the petitioner has been stopped since May, 2002 (Annexure-2).
3. It is the case of the petitioner that he was appointed as Basic Health Inspector and thereafter, he was posted as Malaria Inspector since 8.8.1961 and performed his duties without any complaint whatsoever and retired on 31.1.1998 as Basic Health Inspector from Karon Block. It is submitted that the petitioner was superannuated on 31.1.1998 but till May 2002, the petitioner was getting only provisional pension. Thereafter, the petitioner filed a writ petition being CWJC No. 1015/2001 for getting the retiral benefits and by order dated 16.3.2001, this Court directed the respondent authorities to pay the final pension as well as admitted leave encashment legally payable to the petitioner as early as possible preferably within a period of six weeks from the date of receipt/production of a copy of this order. Thereafter, instead of giving retiral benefits by implementing this Court's order, respondent No. 6 issued another letter being Letter No. 253 dated 16.7.2002, whereby, the first time bound promotion and second time bound promotion given to the petitioner 17 years ago from the date of retirement of the petitioner was reviewed and excess payment was ordered to be deducted from his pension and even provisional pension was stopped since May, 2002. It is further submitted that this letter was issued on the basis of letter No. Pen-4-Sa-385 dated 17.6.1998, whereby, it has been stated that the petitioner has been given wrong promotion as such excess payment is to be adjusted from his retiral benefits. It is also submitted that though there was a direction issued by this Court dated 16.3.2001, the respondent authorities did not pay any attention and did not process the matter for finalization of pension and as well as retiral dues payable to the petitioner in time.
4. A counter-affidavit has been filed on behalf of respondent No. 6 and in para- 6, it is stated that after receipt of objection raised by A.G. Office dated 17.6.98, the service book of the petitioner was sent to the District Account Officer, Deoghar for verification of fixation of the salary of the petitioner in proper scale. It is also stated that admittedly the petitioner was promoted as Basic Health Inspector on 17.7.98 and therefore in terms of the time bound promotion scheme, he was entitled for first time bound promotion w.e.f. 17.7.88 but he was wrongly given first time bound promotion w.e.f. 1.4.81 and second time bound promotion w.e.f. 1.4.86. It is also stated that a copy of letter dated 17.6.98 was also sent to the petitioner by respondent No. 4 but the petitioner never filed any representation before respondent Nos. 4 and 6. It is further submitted that in absence of any objection from the petitioner, as the petitioner was wrongly given first time bound promotion and 2nd time bound promotion w.e.f. 1.4.81 and 1.4.86, respectively, while he was entitled for the 1st time bound promotion only w.e.f. 17.7.98, it was decided to recover the excess amount. It is further submitted that the fixation of salary done by respondent No. 6 was duly verified by the District Accounts Officer, Deoghar on 10.9.2003 and as per the calculation, the excess amount paid to the petitioner on account of wrong time bound promotions given to him w.e.f. 1.4.81. and 1.4.86 comes to Rs. 95,588.00 and therefore, a letter was sent to the petitioner asking him to deposit the excess amount of Rs. 95,588.00, failing which, respondent No. 4 was asked to deduct the same from the retiral benefits of the petitioner. It is further submitted that respondent No. 6 has also written a letter to the Accountant General, Jharkhand annexing the service book and pension paper of the petitioner for fixation of final pension and gratuity vide its letter dated 13.9.2003. It is also submitted that since the petitioner was wrongly given time bound promotions w.e.f. 1.4.81 and 1.4.86, the respondents are entitled to recover the excess amount paid to him from retiral dues of the petitioner.
5. The petitioner filed rejoinder to the counter affidavit, filed by respondent No. 6, on 30.7.2007 and in para- 6 of the said rejoinder, it is stated that at the time of retirement, the respondent did not take any action for deduction. The same was made and in the year 2002 i.e. as per Annexure- 2 a letter was sent to the petitioner, and therefore, the petitioner has preferred the present petition. It is also submitted that there was no mala fide intention on the part of the petitioner with regard to the said promotions and therefore, petitioner can not be blamed for the same. Therefore according to the petitioner, the action on the part of the respondent authorities is wholly unjustifiable, arbitrary and illegal as it was the duty of the respondent authorities to process the matter with regard to retirement benefits of the petitioner well within time but unfortunately, the respondent authorities were failed to do so.
6. Respondent Nos. 4 and 5 have also filed a counter affidavit stating inter alia that the office of the Accountant General has discharged its statutory and constitutional duties and responsibility. The office of the Accountant General has rightly pointed out the discrepancy detected during the course of scrutiny of service book and pension papers. It is also stated that till date the service book and pension paper of the petitioner have not been re-submitted to the office of respondent Nos. 4 and 5 despite letter No. Pen-IV-1298 dated 14.8.2003.
7. Learned counsel for the petitioner submitted that the respondents have sought recovery after 17 years of retirement of the petitioner and this recovery has been done despite there was an interim order dated 25.7.2003 issued by this court. Learned counsel for the petitioner has referred to and relied upon the decision rendered in the case of State of Jharkhand and Ors. Vs. Padmalochan Kalindi reported in 2008(1) JCR 5 (Jhr.) (FB) and while referring to Para 32 and 33 of the said judgment, learned counsel for the petitioner submitted that the ratio laid down in the said judgment is applicable to the facts and circumstances of the present case and accordingly the order regarding deduction of excess amount payable to the petitioner is required to be set aside and the respondent authorities are also required to direct to pay retiral benefits due to the petitioner at the earliest.
8. Learned counsel for the State submitted that upon receipt of intimation of the Accountant General Office vide letter dated 17.6.98, the respondent authorities have issued letter to the petitioner and sought for recovery of excess payment as the first time bound promotions and second time bound promotion were wrongly given to the petitioner. It is further submitted that since the petitioner was given wrongly time bound promotions, he is not entitled to get the benefits of those promotions and therefore, the excess amount payable to him can be recovered from the petitioner from his retiral benefits. Learned counsel appearing for respondent No. 4 submitted that Annexure-3 i.e. letter dated 17.6.98 addressed to the I/C Medical Officer, Primary Health Centre, Karon, Deoghar in discharged his statutory duty. It is submitted that in view of Rule 189 of the Jharkhand Pension Rules, respondent No. 6 and Government authorities were required to process the pension papers 18 months prior to the retirement of the petitioner but unfortunately, in the present case, pension papers were submitted after the retirement of the petitioner. However, the respondent authorities while discharging of its statutory obligation made scrutiny and pointed out certain discrepancies which were found and intimated vide letter dated 17.6.98 to the authorities concerned.
9. Considering the aforesaid rival submission of the parties and form perusal of the materials on record, it appears that respondent No. 4 on the basis of Annexure-3 i.e. letter dated 17.6.98 has sought recovery of excess amount, which has been paid to the petitioner 17 years ago from the date of retirement and he has been directed to deduct the said amount from the salary of the petitioner. It also appears that the provisional pension of the petitioner was also stopped since May, 2002 (Annexure-2 to the petition). From the arguments advanced by the learned counsel appearing on behalf of respondent Nos. 4 and 5, it also appears that the pension papers of the petitioner were not processed and as per Rule 189 of the Jharkhand Pension Rules; the said Rule reads as under;
"189. Every Government servant shall submit a formal application for pension. A government servant should, in his own interest, submit his formal application for pension to the authority specified in rule 193 or 196, as the case may be, [ 18 months] in advance of the date of his actual or anticipated retirement:
Provided that-
(i) in cases in which the date of retirement cannot be foreseen1[ 18 months] in advance the application shall be submitted immediately after the date of retirement is settled; and
(ii) a Government servant proceeding on leave preparatory to retirement in excess of 1[18 months] shall submit the application at the time of proceeding on such leave.
Note.- This rule is intended to obviate delay in the settlement of claims for pension and to ensure that a Government servant may not retire under the misapprehension that he has earned a pension which is subsequently found to be inadmissible. There is indeed no limitation on the period after retirement within which an application for pension or gratuity must be submitted, but in the absence of special orders, a pension applied for after the Government servant has retired begins from the date of application (see also rule 209).
State Government decisions:-
1.See State Govt. decision No. 1 below Rule 204.2.
*It has now been decided that Government servants should apply for pension 18 months in advance of the date of retirement and the concerned Department should prepare the pension case one year in advance of the date of retirement. [ now 18 month.] [ *Vide G.O. No. 1030/61-12928 F., dated 4-9-1262.]"
In view of the Rule 189 of the Jharkhand Pension Rules, the petitioner was required to submit his formal application and upon receipt of the same, it was the duty of the respondent authorities to process and submit the pension papers one year in advance of the date of retirement [now 18 months]. But unfortunately, in the present case, the said papers have been submitted to the office of Accountant General after the retirement of the petitioner. However, respondent Nos. 4 and 5 after necessary scrutiny and verification, noticed certain discrepancies, which was communicated vide letter dated 17.6.98 to the State respondent authorities and a copy thereof was also sent to the petitioner. The stand taken by respondent authorities more particularly, respondent No. 6 that there was an intimation to the petitioner from the A.G. Office however, the petitioner did not represent his case. This contention raised by the respondent authorities can not be accepted because it was the duty of the government authorities to take up this issue, moreover, the respondent authorities did not pay any proper attention to process the pension papers otherwise this discrepancy would have been noticed much earlier in point of time and due to inaction on the part of the respondent authorities, the petitioner was allowed to enjoy the time bound promotions and avail the retiral benefits. The recovery of excess amount after lapse of more than 17 years from the petitioner is unjustifiable. The judgment reported in 2008(1) JCR 5 (Jhr)(FB) is also applicable in the case of the petitioner and para 32 and 33 of the said judgment read as under;
"32. In Smt. Girish Kumari Prasad, (supra), the Division Bench of this Court (Hon'ble P.K. Balsubramnyan, C.J. and Hon'ble Tapen Sen, J) has held that something that is not due was given either because of negligence, collusion or fraud, the Accountant General can rectify the mistake committed either by omission or by commission by someone in the department. There cannot be any estoppel to seek any recovery of unauthorised payment made to an undeserving person. The fact that someone had made an error in giving a time bound promotion to the writ petitioner when it was no due, could not clothe him with any special right. However, it has not been held that any such amount would be recovered from the pensionary benefit of the retired employee without following the procedure provided under Rule 43(b) of the Pension Rules or without following the procedure established by law for holding guilty of negligence, collusion or fraud or without holding any person responsible and liable for such mistake, negligence or fraud. The decision in the case of Smt. Girish Kumari Prasad, (supra), has absolutely no conflict with the decision of the Division Bench in State of Jharkhand and others v. Baleshwar Singh and another, 2006(4) JCR 660 (Jhr) (Hon'bles S.J. Mukhopadhaya and Permod Kohli, J) or any other decision of this Court referred to above. In the instant case learned single Judge has decided the impugned order holding that no amount can be recovered from the pension except by an order passed under Rule 43(b) of the Bihar Pension Rules, 1950 as in the instant case, neither the State Government nor the competent authority has initiated any proceeding under Rule 43(b) of the said Rules while the petitioner was in service and even after 16 years of his retirement and even the proceeding under Rule 43(b) of the said Rules is bared by limitation and the same cannot be initiated now. He further held that no recovery can be made from the pension of the petitioner including the provisional/ final pension or from the gratuity. Learned single Judge has noticed that even recovery by way of suit and certificate proceeding is also time barred after lapse of 16 years from the retirement of the petitioner. The impugned order dated 2.9.1997 (Annexure-2) issued by the Accountant General as well as the letter dated 3.1.2005 (Annexure-3) issued by the Block Development Officer, Chandankeyari seeking recovery were quashed and the respondents were directed to refund the amount already recovered from the petitioner. The respondents were also directed to finalize the pension of the writ petitioner within the time prescribed and to pay the admitted arrears with interest @5% with cost. The said order of the learned single Judge has been passed after taking into consideration the relevant provisions and the same is in consonance with the other decisions of the Apex Court as well as of this Court, as noticed above. We find no illegality or infirmity in the impugned order of the learned single Judge. There is, thus, no merit in this letters patent appeal which is accordingly dismissed with cost of Rs.10,000/- to be paid by the appellants to the 1st respondent.
33. It has been informed that the petitioner's final pension has been fixed during the pendency of this appeal. The appellants are directed to pay the arrears of pension and gratuity to the petitioner along with interest as directed by the learned single Judge within a period of two months from the date of receipt/production of a copy of this order, if not already paid. The respondents shall also refund the amount of the pension which was withheld and sought to be adjusted against the alleged dues within the said period. If the arrears/amounts aforesaid are not paid to the 1st respondent within the said period, he shall be entitled to get interest @ 10% per annum on the amount of arrears from the date of his retirement till final payment."
It appears that the petitioner approached this Court by filing the instant writ petition and by order dated 25.7.03 this Court after hearing the parties in this case passed the following order;
"25.7.2003: J.C. to learned G.P.-I prayed for time to seek instruction and file counter affidavit. Put up this case after four weeks. In the meantime, there shall not be any recovery from the petitioner's retiral benefits."
Despite specific order passed by this Court, the respondent authorities recovered Rs. 53,000.00 from leave encashment and Rs. 42,588.00 from the final pension amount from the petitioner by the Treasury Officer, Deoghar on 16.6.2004. Before doing so the respondents could have moved appropriate application seeking modification or vacating the relief granted by this Court. But instead of taking such recourse straight way the amount has been recovered. Therefore, this action of the respondent authorities being unwarranted and unjustifiable is deprecated by this Court as it amounts to disobedience of the Court's order. Therefore, the respondent authorities are directed to be more vigilant in future before passing any order when the matter is subjudice and when some interim orders have been passed and operative in the matter.
10. Having regards to the facts and circumstances of the present case and in view of the settled position of law referred herein above, the present petition is allowed and the orders as contained in letter No. 385 dated 17.6.1998 (Annexure-3 to the writ petition), letter No. 253 dated 16.7.2002 (Annexure-2 to the writ petition) and letter No.332 dated 11.9.2003 (Annexure-C to the counter affidavit filed by respondent No. 6) are quashed and set aside with a direction to the respondent authorities to refund the amount, recovered from the retiral benefits of the petitioner within four weeks from the date of receipt/production a copy of this order . It is pointed by the learned counsel for the parties that during the pendency of this writ petition, the pension of the petitioner has been finalized and therefore, no further order is required to pass in this regard.
Anu /- (P.P. Bhatt, J.)