Rajasthan High Court - Jaipur
Basanti Mathur (Smt.) vs The State Of Rajasthan And Ors. on 14 December, 2004
Equivalent citations: RLW2005(2)RAJ938, 2005(1)WLC508
JUDGMENT Sunil Kumar Garg, J.
1. The petitioner has filed the present writ petition under Article 226 of the Constitution of India on 29.09.2003 against the respondents with a prayer that by an appropriate writ, order or direction the letter dtd. 30.3.2002 (Annex. 2) passed by the Joint Director, Agriculture by which the order dtd. 25.6.1994 (Annex. 1) by which the petitioner's husband was granted the benefit of 3rd selection grade on completion of 27 years of service w.e.f. 15.11.1993 taking into consideration his services from 15.11.1966 was withdrawn and order dtd. 3.4.2002 (Annex.3), passed by Joint Director, Agriculture, Jodhpur by which recovery of a sum of Rs. 47,777/- was ordered to be recovered from the amount of gratuity, be quashed and set aside.
2. It arises in the following circumstances:
i) That the petitioner's husband late Shri Prakash Mathur (hereinafter referred to as the deceased employee) was initially appointed on adhoc basis on 15.11.1966 and thereafter he was selected through RPSC in the year 1971 and was appointed on the post of Assistant Agriculture Officer,
ii) Further case of the petitioner that the State Government prescribed selection grades on completion on 9, 18 and 27 years of service vide order dtd. 25.1.1992 and accordingly, the husband of the petitioner was granted the benefit of selection grade on completion of 27 years of service vie order dtd. 25.6.1994 (Annex.1) taking into account his service w.e.f. 15.11.1966 in the pay scale of order dtd. 2200-4000.
iii) Further case of the petitioner is that her husband died on 14.11.2001 and after death of late Shri Prakash Chandra, the benefit of selection grade granted to the husband of the petitioner on completion of 27 years of service was taken back by order dtd. 30.3.2002 (Annex.2).
iv) Further case of the petitioner is that thereafter the through letter dtd. 3.4.2002 (Annex.3) matter was forwarded to the Chief Accounts Officer for fixation and finalisation of the retrial benefits of husband of the petitioner and it was requested by the Joint Director that the recovery by made from the amount of gratuity now payable to the petitioner who is wife of the deceased employee.
v) Further case of the petitioner is the matter was sent to the pension department for finalization of pension vide letter dtd. 27.5.2002 (Annex.4) and it was requested that the recovery be made for a sum of Rs. 47,777/-.
vi) Further case of the petitioner is that the said amount was deduced from the amount of gratuity and refixation was made and the selection grade allowed to the husband of the petitioner after completion of 27 years of service vide order dtd. 25.6.1994 (Annex.1) was taken back. Hence, this writ petition with the aforesaid prayer.
3. The main submission of the learned counsel for the petitioner is that the since recovery has been made without following the principle of natural justice and further more while granting the selection grade on completion of 27 years of service to the husband of the petitioner through order dtd. 25.6.1994 (Annex.1), there was no fault on the part of the deceased employee and it was granted by the respondent themselves and further since deceased employee was in service since 15.11.1966, therefore, selection grade was rightly granted to the petitioner's husband on completion of 27 years of services, as on 15.11.1993 the deceased employee had completed 27 years of service and period of service for grant of selection grade should be counted from the date of initial appointment i.e. 15.11.1966 and not from the date of passing of test conducted by RPSC i.e. from 29.5.1971.
4. Reply to the writ petition was filed by the respondents and their case is that since deceased employee was selected regularly by RPSC on 29.5.1971, therefore, he had not completed the service of 27 years before 1.9.1998 and therefore, he was not entitled to get selection grade on completion of 27 years of service on 15.11.1993 and when excess payment had been made to the deceased employee on account of grant of selection grade wrongly, the respondents had rightly passed the Impugned order dtd. 30.3.2002 (Annex.2) and order dtd. 3.4.2002 (Annex.3) by which the excess amount paid to the deceased employee was deducted from the amount of gratuity and hence no case, the writ petition be dismissed.
5. Heard.
6. There is no dispute on the point that the husband of the petitioner was initially appointed as Assistant Agriculture Officer on adhoc basic on 15.11.1966 and thereafter he was selected by RPSC in the year 1971 and he was appointed on the post of Assistant Agriculture Officer under the respondent- Department.
7. There is also no dispute on the point that vide order dtd. 25.6.1994 (Annex.1) on completion of 27 years of service the petitioner's husband was granted the benefit of 3rd selection grade taking into account his service w.e.f. 15.11.1966.
8. There is also no dispute on the point that the deceased employee had died on 14.11.2001.
9. There is also no dispute on the point that the impugned order dtd. 30.3.2002 (Annex.2) was passed by the respondents after death of the deceased employee by which the order dtd. 25.6.1994 (Annex.1) by which the deceased employee was granted selection grade on completion of 27 years of service w.e.f. 15.11.1993 was withdrawn and the excess amount to the tune of Rs. 47777/- which were paid to the deceased employee were ordered to be recovered from the amount of gratuity of the petitioner's husband.
10. There is also no dispute on the point that before passing the impugned ordered dtd. 30.3.2002 (Annex.2) and 3.4.2002 (Annex.3), no opportunity of hearing was afforded to the petitioner who is wife of the deceased employee.
11. There is also no dispute on the point that there was no fault on the part of the petitioner's husband or the petitioner while granting him benefit of 3rd selection through order dtd. 25.6.1994 (Annex.1)
12. Now the question which arises for consideration is whether in the facts and circumstances just mentioned above, the impugned order dtd. 30.3.2002 (Annex.2) and order dtd. 3.4.2002 (Annex.3) can be sustained or not and the amount already paid to the petitioner's husband after grant of selection grade vide order dtd. 25.6.1994 (Annex.1) without any fault on the part of the petitioner's husband or petitioner can be permitted to be recovered from the amount of gratuity or not and if already recovered, whether the said amount can be refunded back to the petitioner or not who is the wife of deceased employee?
13. In Shyam Babu Verma and Ors. v. Union of India and Ors., (1994) 2 SCC 521, the Hon'ble Supreme Court has held that since the petitioners received the higher scale due to no fault of theirs, it shall only be just and proper not to recover any excess amount already paid to them.
14. In Bhagwan Shukla v. Union of India and Ors., AIR 1994 SC 2480, the Hon'ble Supreme Court observed that if basic pay of any employee is reduced with retrospective effect and employee was not granted opportunity to show cause, in such circumstances, there would be flagrant violation of the principles of natural justice and order of reducing pay was set aside.
15. In Ramesh Kumar Sharma v. State of Rajasthan and Ors., WLR 1997 Raj. 55, this Court observed that it is well settled law that no order effecting the civil right of a person can be passed without giving an opportunity to the official. The principles of natural justice are the cardinal principles which are to be complied with by the Stale Authorities even to modify an order howsoever erroneous or illegal that order might by, if that order had bestowed any benefit on the official.
16. In Sahib Ram v. State of Haryana and Ors., 1995 Supp. (1) SCC 18, the Hon'ble Supreme Court restrained the recovery of the payment already made to the appellant, as it was not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him, but by wrong construction made by the Principal for which the appellant cannot be held to be at fault.
17. In Nand Lal and Ors. v. Raj. State Electricity Board and Ors., RLR 1999 (2) 707, this Court relying on the aforesaid judgments of the Hon'ble Supreme Court has held that if a higher pay scale has erroneously been given to an employee long back and he had received it out of no fault on his part, it shall not be just and proper to recover the excess amount already paid to him.
18. In another decision in Shrawan v. State of Raj. and Ors., WLR 1998 Raj. 423, where the petitioner was retired from service and his pension was also fixed and later on the Department felt that by mistake he was wrongly paid more amount by way of pension and the Department passed order for recovery of excess payment from the gratuity of the petitioner without giving an opportunity of hearing an in such circumstances, this Court set aside the order of recovery holding that such recovery order could have not been passed without extending opportunity of hearing.
19. In the latest decision of the Hon'ble Supreme Court in Lakshmi Narayan Mukhopadhyay v. Union of India and Ors., JT 2002 (5) SC 355, the amount ordered to be recovered from gratuity was not allowed to be recovered on the ground that no opportunity of hearing was given to the employee.
20. Thus, from the law laid down by me Hon'ble Supreme Court as well as by this Court just quoted above, it is clear that in case the Court finds that any benefit was received by a person without there being any fault on his part in receiving such benefit, it would be just and proper to allow him to retain such benefit and further in such a case if principles of natural justice have been violated, from that point of view also, the recovery should not have been made from that person.
21. Applying the above principles to the facts of the present case, it can be stated that the petitioner's husband (deceased employee) was granted 3rd selection grade vide order dtd. 25.6.1994 (Annex.1) w.e.f. 15.11.1993 on completion of 27 years of service without there being any fault on his part and therefore, in such circumstances, it would be just and proper to allow the petitioner's wife to retain such benefit.
22. Apart from this in this case, the deceased employee had already died and now the excess amount has been recovered by the respondents from the amount of gratuity which was payable to the petitioner who is wife of the deceased employee and thus a serious legal injury has been caused to the petitioner and hence, the legal right of the petitioner has been infringed as the has been deprived of the amount of gratuity which she is entitled to get. That apart before passing the impugned orders dtd. 30.3,2002 (Annex.2) and 3.4.2002 (Annex.3), no opportunity of hearing was afforded to the petitioner and from that point of view also, the principles of natural justice have been violated in this case and therefore the impugned orders dtd. 30.3.2002 (Annex.2) and 3.4.2002 are liable to be quashed and set aside.
23. Further more, full bench of this Court in the case of State of Rajasthan v. Farooq Ahmed, D.B. Civil Special Appeal No. 58/2004, has held that selection grade should be given to the employee from the date of initial appointment and from that point of view also, the order dtd. 30.3.2002 (Annex.2) by which selection grade granted to the petitioner's husband w.e.f. 15.11.1993 taking into account his service w.e.f. 15.11.1966 i.e. the date of initial appointment was withdrawn, cannot be sustained and is liable to be quashed and set aside.
24. For the reasons mentioned above, this writ petition deserves to be allowed and the orders dtd. 30.3.2002 (Annex.2) and order dtd. 3.4.2002 (Annex.3) cannot be sustained and the same are liable to be quashed and set aside and the same have been passed in violation of principles of natural justice and in violation of law laid down by the full bench of this Court in the case of Farooq Ahmed (supra).
Accordingly, the present writ petition is allowed and the orders dtd. 30.3.2002 (Annex.2) and order dtd. 3.4.2002 (Annex.3) passed by the Joint Director, Agriculture are quashed and set aside and respondents are directed to refund the amount of Rs. 47777/- which has been recovered from the amount of gratuity paid to the petitioner within a period of 2 months from today.