Jharkhand High Court
Arjun Prasad Yadav vs State Of Jharkhand And Ors. on 23 April, 2002
Author: Tapen Sen
Bench: Tapen Sen
ORDER Tapen Sen, J.
1. The petitioner, Arjun Prasad Yadav, has stated that he was appointed as Havildar on 7.4.1966 whereafter he was promoted to the post of a Company Commandar in the year 1975 and he retired from that post/capacity on 31.12.1999 from the district of Godda, office of the Commandant Home Guard. According to him, at the time of his retirement he was getting a sum of Rs. 9,000/- and provisional pension of 90% thereof was fixed at Rs. 4,050/- p.m. with 37% clearance allowance @ 1.499/-. He has also stated that on 24.7.2001. the District Commandant, Godda issued a memo addressed to the Treasury Officer, Dumka informing him inter alia that there were no dues against him. At para 6 of the writ petition the petitioner has stated that his pension however, has been fixed on the lower pay scale instead of on the basis of last pay drawn, le. Rs. 9,000/- and a sum of Rs. 65,130,26 p. has been shown to be excess payment made towards D.C.R./Gratuity and from 1.7.2001 the petitioner is facing deduction from pension.
2. The petitioner has relied on a judgment of Hon'ble Supreme Court of India in the case of Sahib Ram v. State of Haryana and Ors., reported in 1995 Supp (1) SCC 18, in support of the contention that if excess amount has been made by the employer the same cannot be deducted unless it was proved that there was any misrepresentation on the part of the employer. According to petitioner, the respondent never issued any notice nor any notice to show cause while he was in service and, therefore, they could not have fixed the pension on any amount lower than the last pay drawn and the deduction etc. made is fully without jurisdiction.
3. A counter affidavit on behalf of respondent No. 2 (Accountant General. Bihar and Jharkhand) has been filed and it has inter alia been stated that the last pay of the petitioner has been shown as Rs. 8,650/- and the pension was wrongly fixed on the basis of Rs. 9,000/-. It has further been stated that on 23.10.2001 the respondent No. 2 wrote a letter/requested the respondent No. 9 (Commandant, Home Guard, Patna) to send the service book with up-to-date entries made therein. However, the respondent No. 2 has stated at para 8 of the said counter affidavit that he undertakes to finalise the case as soon as required documents are received in the office of the answering respondent after necessary rectification.
4. In this case opportunity was given to the State of Bihar to file necessary affidavit by order dated 11.10.2001. Again on 4.2.2002 they made a prayer for adjournment but it appears that no counter affidavit has been filed by them.
5. However, in view of the statements made by the respondent No. 2 that he had already sent letter requested the Commandant, Home Guard (Respondent No. 9) to send the service book of the petitioner with up-to-date entries and that he would finalise the matter as soon as the same was received, this Court therefore, gives liberty to the petitioner to produce a copy of this order before the respondent No. 9 along with a copy of the counter affidavit that has been filed by the respondent No. 2. On such production, the respondent No. 9 shall immediately but not later than a period of ten days from the date of receipt thereof shall do the needful as per the request of respondent No. 2. The respondent No. 2 in his turn is directed that he must honour his undertaking given at para 8 of his counter affidavit and should finalise the matter within a period of ten days from the date, he receives the communication from the respondent No. 9.
6. It goes without saying that the respondents must take into consideration the judgment passed in the case of Sahib Ram as stated above to the extent that if there were no misrepresentations on the part of the petitioner then deduction is unjustified. They must also take into consideration the fact that the pension is always fixed on the basis of last pay drawn.
7. Let it be recorded that in view of the fact that the respondent No. 2 has raised a dispute to the effect that the petitioner's last pay was actually Rs. 8,650/- and not Rs. 9.000/-, the respondents are directed to verify these things and do the needful within the aforementioned period.
8. With the aforementioned observations/directions, this writ petition is disposed off.