Jharkhand High Court
Binod Jha vs The State Of Jharkhand on 30 June, 2020
Author: Deepak Roshan
Bench: Deepak Roshan
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 863 of 2015
Binod Jha ..... Petitioner
Versus
1.The State of Jharkhand, through its Secretary,
Department of Water Resources, Government of
Jharkhand, Nepal House, Doranda, Ranchi.
2.The Engineer-in-Chief, Department of Water
Resources, Government of Jharkhand, Ranchi.
3.The Chief Engineer, Irrigation Division,
Barmasia, Deoghar, Jharkhand.
4.The Executive Engineer, Punasi Spillway
Division, Camp Deoghar, Government of
Jharkhand, Ranchi.
5.The Accountant General, Jharkhand, officiating
from the office the Accountant General, Doranda
Ranchi. ..... Respondents
---------
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
---------
For the Petitioner : Mr. Nitin Kr. Pasari, Advocate.
For the State : Mr. Prashant Kr. Singh, Advocate
For the Resp. No.5 : Mr. Sudarshan Srivastava, Advocate
---------
JUDGEMENT
C.A.V. On 24.06.2020 Delivered on 30 /06 /2020.
Heard learned counsel for the parties through V.C.
2. The instant application has been preferred by the petitioner for a direction upon the respondent-authorities to pay the entire retiral dues including 10% of GPF amount, arrears of differences of salary and shifting allowances after superannuation from the service along with interest @ 18% per annum and also for a direction to fix the final pension and pay the same forthwith. It has also been prayed for a direction upon the respondent not to curtail excess payment made to the petitioner during his service period from his retirement pursuant to the letter No. Pension 2-820 dated 27.08.2014, issued by the office of respondent no. 5 as the petitioner was 2 given two ACP by the department from 22.08.2009.
3. The facts of the case lie in a short compass. The petitioner joined as Chowkidar, Class-IV grade employee on 22.02.1974 and thereafter, promoted and joined as Anusewak w.e.f. 02.09.1981 and worked till 09.01.1983. Thereafter, the petitioner was posted as Correspondence Clerk from 09.01.1983 from where he retired on 30.06.2013. It also appears from record that the petitioner before the date of his superannuation submitted all relevant documents regarding his retirement for fixation of his pension to his concerned office in three sets on 21.05.2013 (Annexure-1). It further transpires that the petitioner during his service period appeared in the departmental examination but could not qualify and he was exempted from his departmental examination by letter No. 491 dated 22.08.2009 (Annexure-2) issued by the office of Commissioner, Santhal Pargana, Dumka and the petitioner was granted benefits of 1st and 2nd ACP from the date of exemption from the departmental examination by order dated 29.06.2010 (Annexure-3). The case of the petitioner is that after retirement the service book of the petitioner was sent to the office of respondent no. 5 and the same was returned to the office of respondent no. 4 with the letter dated 27.08.2014 (Annexure-4) stating therein that the petitioner was granted benefits of 1st and 2nd ACP by the department w.e.f. 22.08.2009 is against the letter dated 21.05.2014 issued by the Department of Finance, 3 Government of Jharkhand. In the said letter, it was further requested by the respondent no. 5 to resend the service book after fresh calculation. The further case of the petitioner is that after superannuation the petitioner was being given provisional pension and after issuance of letter as contained in Annexure-4 even the provisional pension has been stopped since June, 2014. Pursuant to that the petitioner filed several representations to pay his retirement benefit as well as to fix his final pension. It appears from record that a supplementary affidavit has also been filed by the petitioner stating inter alia that the respondent No.4 vide its letter no. 618 dated 29.12.2015 (Annexure-6) amended the post retiral dues of the petitioner and ordered that from 22.08.2009 only first MACP grade pay of Rs.2800 is payable to the petitioner and vide letter dated 22.03.16 (Annexure-7) the Respondent no.5 had fixed the final pension of the petitioner after amendment.
4. A counter affidavit has been filed in this case by the respondent nos. 1 to 4, wherein it has been stated inter alia that the service book and pension papers in proper format was sent to Accountant General, Jharkhand, Ranchi vide letter No. 328 dated 19.07.2014. He further submits that the Accountant General, Jharkhand, Ranchi vide their letter No. 2-819 dated 27.08.2014 returned the same with an objection that the petitioner has been granted 1st A.C.P. and 2nd A.C.P. from the date of exemption from departmental examination which is not correct as per directions laid down in Finance 4 Department, Govt. of Jharkhand letter No. 1779 dated 21.05.2014 and further directed to resubmit the service book and pension papers after fixation of pay based on correct admissible ACP as per the said letter. Pursuant to that the matter was reported to Superintending Engineer, Irrigation Circle, Jasidih, Camp-Deoghar with a request for revision of A.C.P, vide Punasi Spillway Division, Punasi Camp-Deoghar letter No. 397 dated 04.09.2014. The Superintending Engineer/Irrigation Circle, Jasidih, Camp-Deoghar forwarded the same to Chief Engineer, Water Resources Department, Deoghar vide his letter No. 977 dated 23.09.2014 and it is due to this reason provisional pension could not be restored as it would amount to violation of Clause 6 (iv) and 6 (v) of Finance Department, Govt. of Jharkhand letter No. 2033 dated 10.06.2014.
5. A supplementary counter affidavit has also been filed by the State respondent wherein a letter dated 09.03.16 (Annexure-D) addressed to the respondent No.5 has been enclosed, wherein it has been informed that a recovery of amount of Rs.1,52,948/- has been taken from the retiral benefits of the petitioner.
6. A supplementary counter affidavit has also been filed by the respondent No. 5 stating inter alia that necessary sanction order has been forwarded vide letter No. 118 dated 09.03.2016 by the department and accordingly the authority for pension and gratuity in favor of the petitioner has been 5 issued vide letter dated 22.03.2016.
7. Learned counsel for the petitioner submits that after filing of the affidavits by the respondents now the only question remains to be decided is that whether the order of recovery passed by the respondents on the ground that the 2nd time bond promotion which was given earlier to the petitioner along with the benefits has been subsequently withdrawn, is legal and sustainable in the eyes of law. He further submits that in getting the 1st and 2nd time bond promotion and the benefit under ACP scheme was given by the respondents themselves and there was no misrepresentation on the part of the information or any fraud was played by the petitioner. He further submits that all the benefits were given to the petitioner by the respondents which were approved by the senior officers as such, recovery of the amount of Rs.1,52,948/- is illegal and without any authority inasmuch as no prior notice was given to the petitioner before recovery of the aforesaid amount.
8. Learned counsel for the petitioner further relied upon the judgment passed in the case of Krishna Ballave Singh Vs. The State of Jharkhand and ors and submits that his case is fully covered and as such, he should be given same benefits. He concluded his argument by submitting that the Hon'ble Apex Court in catena of judgments have held that once the benefit is given to the employee, without there being any misrepresentation or fraud on the part of the employee 6 and even though there is a mistake in granting benefits by the respondent authorities, the amount already paid, cannot be recovered and admittedly in the instant case there is no misrepresentation committed by the petitioner.
9. Learned counsel for the State reiterated the stand taken in their counter-affidavit.
10. Learned counsel for the Accountant General submits that so far as the prayer of the petitioner for quashing of Annexure-4 of the writ application is concerned, the same is not tenable for the reason that being the watchdog of public exchequer, it is the statutory and constitutional duty of the office of the Comptroller & Auditor General of India (CAG) who functions through its Accountants General, to ensure that not a single penny of 'General Revenue' as defined in Rule-16 of the Jharkhand Pension Rules,2000 which is commonly known as Consolidated Fund of India be spend on any such thing which is not authorized by law. He further submits that Rule-188 provides the duties of the authorities to ensure that the government servant receive his pension on the date on which it becomes due otherwise it also causes pecuniary hardship. Rule-189 stipulates the duties of the government servant who is entitled to receive pension. It provides that he shall submit a formal application for pension as it is in his interest, 18 months in advance of the date of his actual or anticipated retirement. Rule-196 deals with the cases of non- Gazetted government servant, like the petitioner. It is his 7 statutory duty that he shall submit a formal application for pension to the head of the office. Rule-197 provides the procedure to follow by the department and by the office of the Accountant General wherein it is specifically mentioned that the office of the Accountant General shall check the statements and furnish necessary certificate of verification. Rule-200 stipulates when the PPO has to be issued and in Note appended to this rule mentions that 'If the pension papers are plainly incorrect or incomplete, the Accountant General shall return them promptly for correction or explanation'. Further, Rule-201 (1) provides that 'A pension which is certified by the Accountant General to be clearly and strictly admissible under rules.' Sub Rule (2) mentions that the sanctioning authority has special responsibility of ensuring that orders sanctioning the pension are sent to the Accountant General in time enough to enable him to issue the pension payment order (PPO) not later than the date on which the government servant is due to retire.
11. Learned counsel further contended that in exercise of these statutory powers, in the instant case the office of the Accountant General after scrutinizing the documents found that it is not in order as per the Notification No. 1779 dated 21-05-2014 issued by the Finance Department, Government of Jharkhand, Ranchi, so returned the service book and sanction order in original, with a request to the competent authority to relook and resubmit after due verification. Thus 8 the letter under challenge is neither illegal nor arbitrary nor without authority of law.
12. He further submitted that in the facts of the instant case the delay to some extent is attributed to the petitioner also. However, the sanctioning authority had not discharged due diligence while processing the pension papers and overlooked the concern Notification dated 21-05-2014 while forwarding it to the office of the Accountant General. He further submitted that Rule-202 stipulates the procedure for recovery from pension if it paid in excess. It is the duty of sanctioning authority to issue notice before recovery. Moreover, Pension Form-4 contains undertaking by the retiring employees regarding recovery. It is a statutory form. He further submits that as per Finance Department Memo No. PC.11-1-04/4-5232F dated 23-05-1974 departmental proceeding shall be initiated against those sanctioning authority whose mistake causes hardship and loss to the government. He concluded his argument by submitting that there is no error in issuing Annexure-4 and the prayer for quashing the same is not sustainable in the eye of law.
13. Having heard learned counsel for the parties and after going through the materials available on record specially the argument adduced by the learned counsel for the Accountant General, it appears that the entire glitch lies into not following the timeline strictly as prescribed under statute. Had all required steps taken in advance then it would have neither 9 caused any hardship to the retired employee nor would the state exchequer have suffered. It is true that the retired government servant is entitled to get pension as per his entitlement. Hence due to rectification of any mistake if the pension is reduced as per entitlement then it also cause hardship so the recovery.
14. In my considered opinion to maintain a balance it is imperative to adhere to the provisions of pensions rules and such statutory regulations and notifications issued by the government from time to time in this regard and the essence to stop the wrong payments which is being made to the employees at the time of retirements is adherence to the time and the procedure laid down in the above referred pension rules. In this background the State Government should adopt and start a fresh comprehensive check list which should be followed by the department while processing the pension papers.
15. Coming back to the facts of the instant case it appears that so far as issue of recovery from pension is concerned, the same is now no more res integra. The instant case is on similar footing as that of Krishna Ballave Singh Versus The State of Jharkhand & ors. as reported in 2013 (1) AIR Jhr. R-153, wherein this court has held that without issuing notice to the petitioner, if there is no misrepresentation or fraud laid by the employee, the amount already paid even though by mistake cannot be recovered. Para 6 of the aforesaid judgment is quoted herein 10 below;
"6. In view of the aforesaid decisions, it has been held by a Full Bench of this Court as well as by several decisions of the Hon'ble Supreme Court that if there is no mis-representation or fraud played by the employee, the amount, already paid, even though by mistake, cannot be recovered.
16. Thus, from perusal of the aforesaid judgment, it emerges that if excess payment is not made on account of any misrepresentation or fraud on the part of the employees and such payment was made by the employer due to inadvertence recovery of such excess payment cannot be made. Further as per the law laid down in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others, as reported in (2015) 4 SCC 334, any recovery from pension of an employee belonging to Class III and Class IV service (or Group C and Group D service) were held to be impermissible.
17. In view of the aforesaid discussions and the judicial pronouncement the letter no.118 dated 09.03.16 (Annexure-D to the supplementary affidavit filed by the State respondent) has no legs to stand in the eyes of law as a result thereof, but as the petitioner has not prayed for quashing of the same, I hereby dispose of the instant writ application with a liberty to the petitioner to file a representation before the respondent no.2 raising his demand for refund of the amount which has been deducted from his pensionary benefit. If any such representation is filed, the respondent no.2 shall take a decision and pass a reasoned order in accordance with law and the judgments referred to hereinabove within a period of 11 four months from the date of receipt of such representation.
18. As a result, the instant writ application stands disposed of. The interlocutory application, if any, also stands disposed of.
(Deepak Roshan, J.) Jharkhand High Court Dated/ 30 /06 /2020 Amardeep/AFR