Rajasthan High Court - Jaipur
Bhanwar Lal Dave vs State Of Raj & Ors on 19 January, 2012
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER D.B. CIVIL WRIT PETITION NO. 5404/2004 BHANWAR LAL DAVE VS. STATE OF RAJASTHAN & OTHERS. DATE OF ORDER : 19.01.2012 HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I Mr. Bhanwar Lal Dave, petitioner present in person. Ms. Pratibha Vyas, Officer-in-Charge, SI & PF Department on behalf of the respondents, present in person. BY THE COURT:(PER HON'BLE JAIN, J.)
Petitioner has preferred this writ petition challenging the recovery action of Respondents No. 3 and 4 in respect of disputed amount, which is alleged to have been paid to the petitioner in excess.
2. From the averments made in the writ petition and documents enclosed, it appears that the petitioner withdrew a sum of Rs. 18,969/- as a loan in January, 1994 from his GPF account, which was recovered from his salary in 24 equal monthly installments of Rs. 779/- each during the period from March, 1994 to February, 1996. The petitioner retired on 30.04.1999. His pension account including pensionary benefits was settled. Respondents No. 3 and 4 vide letter dated 22.05.2003 informed the petitioner that an excess payment has been made to him, as pointed by Audit Party, therefore, he should deposit the excess paid amount immediately in the Department. The petitioner replied on 20.06.2003 and submitted that no excess payment has been made to him and if any excess payment has been made, then the details thereof along with Audit Report be furnished to him. Thereafter, Respondent No. 4 on 16.07.2003 again wrote a letter to the petitioner stating that a sum of Rs. 18,696/- was sanctioned as loan on 18.01.1994, but in his account, amount of Rs. 1,869/- was debited in place of Rs. 18,696/-, therefore, difference of amount, i.e. 18696-1869= 16827 with interest i.e. total Rs. 24,670/- has been pointed out in the Audit Para and he should make himself present in the Office and get the same verified and the said amount be deposited. The petitioner sent a reply dated 14.08.2003 whereby he informed that the loan amount of Rs. 18,696/-, sanctioned in the year 1994, stands already paid long back in 24 equal installments of Rs. 779/-, which is also clear from letter of Department, therefore, nothing remains to be repaid against the aforesaid loan amount. Subsequently, vide letter dated 06.07.2004, Respondent No. 4 informed the petitioner that a sum of Rs. 44,075/- has been paid to him in excess in GPF Account No. 150191, which should be deposited immediately. The petitioner gave his detailed reply on 10.07.2004 stating that amount of loan has already been paid, as informed earlier and it is very surprising that now so-called due amount has been increased to Rs. 44,075/-. The petitioner further submitted that no excess amount has been paid to him and whatever amount was withdrawn as loan from his GPF account has been deducted/recovered from his salary and total withdrawal/loan amount stands paid and nothing is due against him. It was further averred in the writ petition that the respondents have neither supplied the statement nor the Audit Report on the basis of which letter of recovery has been issued, therefore, action of the respondents be quashed and set aside and they may be restrained from recovering any amount from his pension or otherwise.
3. Respondents No. 1 to 4 filed their reply to writ petition, wherein it was submitted that a temporary loan of Rs. 18,696/- was sanctioned to the petitioner on 18.01.1994, but in his ledger sheet, the concerned clerk, by mistake, debited Rs. 1,869/- in place of Rs. 18,696/-. Thus, a sum of Rs. 16,827/- was not debited in the account of the petitioner at the time of sanction of the loan, therefore, the said amount with interest is recoverable from the petitioner.
4. The writ petition was earlier heard by the Single Bench and vide order dated 31.08.2004, writ petition was allowed and the petitioner was directed to submit a detailed representation in respect of recovery proceedings initiated by the respondents against him and Respondent No. 3 was directed to decide the matter within a period of two months and till then, it was directed that no steps shall be taken to recover the amount from the petitioner. The learned Single Bench also observed that from the documents annexed to the writ petition, prima facie, what is stated by the petitioner appears to be correct. Learned Single Bench also granted a liberty to the petitioner that in case decision on the representation of the petitioner goes adverse to him, then he may apply for revival of the writ petition.
5. The petitioner thereafter submitted a representation and it appears that it was decided against him, therefore, he moved an application for revival of the writ petition and writ petition was revived vide order dated 23.02.2005 passed in S.B. Civil Misc. Application No. 18/2005.
6. After revival of the writ petition, fresh notices were issued to the respondents and the petitioner was also directed to implead the High Court through Registrar(Administration), Jaipur as party respondent. Thereafter, Rajasthan High Court was also impleaded as Respondent No. 5 and matter was ordered to be listed before Division Bench as per order dated 11.09.1998 issued by Hon'ble Acting Chief Justice as matter relates to employee of the High Court.
7. Respondent No. 5, in response to the notice of the writ petition, filed its reply and in para 7 thereof specifically mentioned that a temporary withdrawal of Rs. 18,696/- in the form of loan was sanctioned to the petitioner from his GPF account in the year 1994-95 vide order dated 18.01.1994. This amount was recovered in 24 equal monthly installments of Rs. 779/- each by way of deduction from the salary of petitioner, during the period from March, 1994 to February, 1996. Para 7 of the reply of Respondent No. 5 reads as under:
7. That the contents of para No. 7 of the Writ Petition are replied in terms that a temporary withdrawal of Rs. 18,696/- in the form of loan was sanctioned in the GPF account of the petitioner in the year 1994-95 vide order dated 18.1.1994. This loan amount was recovered in 24 monthly equal installments of Rs. 779/- between March, 1994 to February, 1996.
8. Submission of the petitioner is that no excess amount has been paid to him. The amount of loan of Rs. 18,696/-, which was in fact his own amount lying in deposit in his GPF account, has already been paid/recovered from his salary during the period from March, 1994 to February, 1996. Even if, there is a mistake of mentioning Rs. 1,869/- in place of Rs. 18,696/- on the part of the concerned clerk of GPF Department, it makes no difference, as he has already paid total loan amount of Rs. 18,696/- and not Rs. 1,869/-. If there was a mistake in writing the correct amount in the ledger or concerned document by the official of Respondents No. 3 and 4, then the same should have been rectified by them. He further submitted that he retired way back on 30.04.1999 and his all dues on account of pension and pensionary benefits have been settled. Now, only after a delay of about four years from the date of his retirement and ten years from the date of loan, the said letter of recovery has been issued in the year 2003 demanding the disputed amount, stating that excess payment has been made to him, whereas no excess amount was paid to him. Therefore, action of the respondents be quashed and set aside.
9. Ms. Pratibha Vyas, Officer-in-Charge, appearing on behalf of the respondents submitted and repeated the same thing that in place of Rs. 18,696/-, amount of Rs. 1,869/- was debited and the said mistake was pointed out by Audit Party, which was mentioned in the Audit Report, therefore, letter of recovery was written to the petitioner. However, she specifically admitted that the petitioner has already paid the entire amount of loan of Rs. 18,696/- in 24 equal monthly installments during the period from March, 1994 to February, 1996.
10. We have considered the submissions of parties and examined their pleadings and documents enclosed therewith.
11. The undisputed facts of case are that a sum of Rs. 18,696/- was sanctioned as temporary withdrawal in the form of loan to the petitioner from his GPF account vide order dated 18.01.1994 and the same has been recovered by his employer/Respondent No. 5 in 24 equal monthly installments of Rs. 779/- each during the period from March, 1994 to February, 1996. The petitioner retired on 30.04.1999. His pension case was settled; his pensionary benefits including GPF amount was also paid to him. He was not given any notice or letter for recovery of any amount before 2003.
12. It appears that Audit Party pointed out that loan amount has been mentioned as Rs. 1,869/- in place of Rs. 18,696/- and the same was pointed out in the Audit Note. Respondent No. 4 in its letter dated 16.07.2003 informed the petitioner that in Audit Report it has been pointed out that a sum of Rs. 16,827/- has been paid in excess and the said amount with interest comes to Rs. 24,670/-. Thereafter, within a short span of time, vide letter dated 06.07.2004, Respondent No. 4 asked the petitioner to deposit the so-called excess amount of Rs. 44,075/-. However, during the course of arguments, Officer-in-Charge appearing on behalf of the respondents did not dispute that so-called excess amount relates to temporary withdrawal of Rs. 18,696/-, which was sanctioned to the petitioner in the form of loan in the year 1994-95. The petitioner has enclosed a photo stat copy of the statement of deductions(Annexure-2) made from his salary towards GPF contribution and the recovery of monthly installment on account of payment of above loan. From this document, it is clear that the said withdrawal in the form of loan has already been recovered from the petitioner. The said fact has also been admitted by Respondent No. 5/employer of the petitioner, in Para 7 of its reply, as quoted above, therefore, it is clear that the amount of temporary withdrawal of Rs. 18,696/- in the form of loan has been paid by the petitioner.
13. Apart from above, even if it is assumed that the disputed amount has been paid in excess, the same has not been paid on account of any fraud or misrepresentation of the petitioner. Petitioner retired in April, 1999. He is now 73 years of age. He is suffering from Asthma and other incurable diseases as mentioned by him in his reply. His pension case was settled and he was paid all pensionary benefits including GPF amount long back. The Hon'ble Apex Court in Syed Abdul Qadir and Others Vs. State of Bihar and Others, (2009) 3 SCC 475 held, that in a catena of decisions, a relief has been granted against recovery of excess payment of emoluments/allowances, if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee. Para Nos. 57 and 59 of the judgment are reproduced 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.
59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation of 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 counter-affidavit, 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.
14. It is not a case of the respondents that the petitioner made any misrepresentation or fraud and got some amount in excess, which is being recovered by them from him. The Respondents Nos. 1 to 4 in their reply to writ petition have mentioned that in the ledger sheet of the petitioner, the clerk, by mistake, debited Rs. 1,869/- in place of Rs. 18,696/-, therefore, in view of ratio laid down by Hon'ble Apex Court in Syed Abdul Qadir and Others Vs. State of Bihar and Others(supra), the petitioner is entitled to get relief against recovery of so-called excess payment after so many years.
15. In view of above discussion, writ petition is allowed. Action of the respondents of recovery of disputed amount from the petitioner in pursuance of their letters dated 16.07.2003(Annexure-3) and 06.07.2004(Annexure-5) is quashed and set aside and respondents are restrained from recovering the said amount from the petitioner.
16. Parties are directed to bear their own costs.
17. In view of above, Application No. 54398/2011 also stands disposed of.
(NARENDRA KUMAR JAIN-I),J. (ARUN MISHRA),CJ.
Manoj