Jharkhand High Court
The State Of Jharkhand vs Birendra Pratap Singh on 11 June, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
--------
L.P.A. No. 190 of 2021
------
1. The State of Jharkhand.
2. The Secretary, Road Construction Department, Govt. of Jharkhand,
office at Project Bhawan, Dhurwa, P.O. and P.S. Dhurwa, Distt.-Ranchi.
3. The Secretary, Department of Finance, Government of Jharkhand,
Project Bhawan, P.O. & P.S. Dhurwa, District Ranchi.
4. The Engineer in Chief, Road Construction Department, Government of
Jharkhand, Project Bhawan, P.O. & P.S. Dhurwa, Dist.-Ranchi.
5. The Chief Engineer, (Transport), Road Construction Department, Project
Bhawan, P.O. & P.S. Dhurwa, Dist.-Ranchi.
6. The Superintending Engineer, Road Construction Department, Road
Circle, Hazaribagh, P.O. Hazaribagh, P.S. Sadar, Dist.-Hazaribagh.
7. The Executive Engineer, Road Construction Department, Road Division
Koderma, P.O. Jhumri Telaiya, P.S. Telaiya, Dist.-Koderma.
... ... Respondents/Appellants
Versus
Birendra Pratap Singh, s/o Late Shiv Pujan Singh, R/o H. No. 460, Ward
No.22, Mahatma Gandhi Nagar, P.O. Jhumri Telaiya, P.S. Telaiya,
District-Koderma.
.. ... Petitioner/Respondent
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
.....
For the Appellants : Mr. Sharad Kaushal, Advocate
.....
10/Dated: 11th June, 2024
Per Sujit Narayan Prasad, J.:
Page 1 of 9 L.P.A. No. 190 of 2021
Prayer:
1. The instant appeal under clause 10 of the letters patent is directed against the order/judgment dated 07.10.2020 passed by the learned Single Judge in W.P.(S) No. 3835 of 2015, whereby and whereunder, the decision as contained in order no.58 dated 19.04.2012 by which the deduction of Rs.1,10,751/- has been decided to be recovered, has been quashed and set aside with a direction to refund the amount so deducted within the period of three months from the date of receipt/production of copy of the order.
Facts:
2. The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated herein, reads as under:
The writ-petitioner was initially appointed as Laboratory Assistant vide letter no 342 dated 15.04.1980, issued by the Superintending, Engineer, Quality Control Circle, Patna 1, and he was posted at National Highway, Quality Control Sub- Division, Kochas. However, the services of the petitioner was discontinued vide letter no. 514 dated 09.07.1980 issued by the Superintending Engineer, Quality Control Circle, Patna 1. Subsequently, vide letter no 759 dated 18.09.1981 it was observed by the Superintending Engineer, Quality Control Circle, Patna 1, that the retrenched employees were entitled for wages for the period of their work and all the previous letters issued by him in this regard were superseded by the present letter. Thereafter, the writ-petitioner was reappointed vide order no. N.H.1/PT-136/80,PW 35 dated 04.04.1981, issued by the Chief Engineer, National Highway Project issued by letter no 1642 dated 4.04.1981(Anu).
Thereafter, the writ-petitioner gave his joining as Toll Clerk cum Correspondence Clerk, National Highway Division, Aurangabad Division, Sub Division Dobhi. The services of the writ-petitioner was regularized vide circular no. 5074 V (2) dated 20.09.1990 in the Road Page 2 of 9 L.P.A. No. 190 of 2021 Construction Department vide letter no.E 4 Meeting 101/92 2736(s) WE Patna dated 04.06.1992.
Thereafter, the writ petitioner was transferred to many places time to time and was granted first time bound promotion vide office order no.248 dated 25.03.1994 in the scale of 1320-30-1560-40-2040. But, the said promotion was cancelled vide office order no.58 dated 19.04.2012 and order of recovery of Rs.1,10,751/- was passed.
The writ petitioner, being aggrieved thereof, approached to this Court by filing writ petition being W.P.(S) No. 3835 of 2015, wherein, the learned Single Judge has quashed and set aside the office order dated 19.04.2012 with a direction to refund the amount so deducted along with interest of 7% from the date of deduction till the date of actual payment, against which the present appeal has been preferred by the respondent-appellant.
3. It is evident from the factual aspect that the writ petitioner while working as correspondence clerk had been given benefit of upgradation in the pay scale under Assured Career Progression Scheme even though he has not passed the departmental examination as required to be passed under Rule 157(J)(3) of the Board Miscellaneous Rules. The aforesaid amount was deducted subsequent to the fixation of the pay scale, therefore, the decision was taken on 19.04.2012 for making recovery of the said amount. The writ petitioner being aggrieved with the said decision has approached this Court by filing writ petition being W.P.(S) No. 3835 of 2015.
4. The ground was taken before the writ court that there is no misrepresentation or any fraud committed by the writ-petitioner and as such, there cannot be any recovery from the salary.
5. The State had taken the plea that if any amount has been paid contrary to the entitlement of the public servant, the same is required to be recovered and accordingly, the decision was taken for making recovery.
Page 3 of 9 L.P.A. No. 190 of 20216. The learned Single Judge, after taking into consideration the rival submissions and putting reliance upon the judgment rendered by the Hon'ble Apex Court in Purshottam Lal Das and Ors. vs. State of Bihar and Ors., (2006) 11 SCC 492 has quashed and set aside the impugned order dated 19.04.2012 with a direction to refund the amount so deducted along with interest of 7% from the date of deduction till the date of actual payment.
7. The State being aggrieved with the said order is before this Court by filing the instant appeal.
Arguments on behalf of the Appellant-State:
8. Mr. Sharad Kaushal, learned counsel for the appellant has submitted that since the fact about making payment of the amount excess to the entitlement of the writ petitioner is admitted and if in that pretext, the decision was taken by the respondent-authority for making recovery of the said amount, the same cannot be said to suffer from impropriety but the learned Single Judge without taking into consideration the aforesaid aspect of the matter, has passed the order, therefore, the said order is not sustainable in the eyes of law.
Analysis:
9. We have heard the learned counsel for the appellants and gone across the pleading made in the writ petition and memo of appeal as also the finding recorded by the learned Single Judge.
10. The main issue which requires consideration is as to whether the State can be said to be acted with propriety in making recovery of Rs.1,10,751/- due to the upgradation in pay scale even though the writ petitioners has not passed the departmental examination.
11. The issue since is of recovery and hence, the proposition which has been laid down by the Hon'ble Apex Court in judgments passed time to time needs to be referred herein.
Page 4 of 9 L.P.A. No. 190 of 202112. Initially, the Hon'ble Apex Court has considered the issue of recovery in the case of Shyam Babu Verma vs. Union of India, (1994) 2 SCC 521 wherein the recovery has been said to be improper if the recovery is being made from the salary of the concerned employee on the basis of wrong fixation if there is no misrepresentation or fraud said to be committed on the part of the concerned public servant. For ready reference, relevant paragraph of the said judgment is being referred as under:
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330- 560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.
13. Again, in Sahib Ram v. State of Haryana and Ors. [1995 Supp (1) SCC 18], the Hon'ble Apex Court held that although the appellant therein did not possess the required educational qualification, yet the Principal granting him the relaxation, had paid his salary on the revised pay scale and this was not on account of misrepresentation made by the appellant but by a mistake committed by the Principal and as such the amount already paid to the appellant need not be recovered. For ready reference the relevant paragraph is being quoted as under:
"5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is 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. Under the circumstances the amount paid till date may not be recovered from the appellant."
14. Subsequent to the aforesaid judgment, the Hon'ble Apex Court has considered the issue of recovery in the case of Chandi Prasad Uniyal vs. State of Uttarakhand, (2012) 8 SCC 417 wherein by deferring with Page 5 of 9 L.P.A. No. 190 of 2021 the view taken by the Hon'ble Apex Court in Shyam Babu Verma vs. Union of India (supra) has taken the contrary view by holding therein that if the amount has been paid, the same since is of a tax payers money, thence, the same is to be recovered from the concerned employee. Relevant paragraph of the judgment rendered in Chandi Prasad Uniyal vs. State of Uttarakhand (supra) is being referred as under:
"14. We are concerned with the excess payment of public money which is often described as "taxpayers' money" which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment."
15. The Hon'ble Apex Court in view of the conflicting judgment on the issue of recovery has referred the matter before the Larger Bench in the case of State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors., (2014) 8 SCC 883 but the Hon'ble Apex Court without answering the reference remitted the matter before the Division Bench for appropriate disposal.
16. Consequently, the Division Bench of the Hon'ble Apex Court in the case of State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors., (2015) 4 SCC 334 at paragraph-18, has laid down the guidelines which is required to be followed by the State in making recovery. For ready reference, paragraph-18 of the said judgment is being referred as under:
"18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to Page 6 of 9 L.P.A. No. 190 of 2021 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
17. The recovery cannot be allowed to be made if any of the conditions as under condition nos.(i) to (v) is there and in addition to that if the court comes to the conclusion in making recovery, the concerned employee will be put to great hardship then the Court can pass order quashing and setting aside the order of recovery.
18. Herein, adverting to the facts of the case, the writ petitioner was having class-III post, i.e., Accounts Clerk while he was in service. He was given upgradation in the pay scale under the Assured Career Progression Scheme even though he has not passed the departmental examination.
19. It is admitted fact on the part of the State-appellant that the order of recovery has not been made on the basis of any misrepresentation or fraud said to be committed by the writ petitioner rather the same has been paid by the respondent-authority even though the writ petitioner has not passed the departmental examination.
20. Admittedly herein, the writ petitioner was holding the post of class-III and as per the guidelines formulated by the Hon'ble Apex Court in the case of State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra) as under paragraph-18 which contains five parameters having one of the parameters that there cannot be any recovery from the class-III employee.
Page 7 of 9 L.P.A. No. 190 of 202121. The writ petitioner since was holding the post of class-III and hence, his case squarely comes under the fold of the judgment rendered by the Hon'ble Apex Court in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra).
22. The learned Single Judge, however, has considered the judgment rendered by the Hon'ble Apex Court in the case of Purshottam Lal Das and Ors. vs. State of Bihar and Ors. (supra) wherein the Hon'ble Apex Court although has laid down the proposition that the recovery can be permitted only in such cases, where the employee concerned is guilty of producing forged certificate for the appointment or got the benefit due to misrepresentation.
23. However, after the aforesaid judgment rendered by the Hon'ble Apex Court in Purshottam Lal Das and Ors. vs. State of Bihar and Ors. (supra), the judgment has been rendered in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra) clarifying the position that there cannot be any recovery if the concerned public servant is coming under the fold of parameters as under paragraph-18 thereof.
24. The learned Single Judge after taking into consideration there is no misrepresentation or any fraud has interfered with the impugned order and has quashed and set aside the order no.58 dated 19.04.2012 with a direction to refund the entire amount within three months from the date of receipt/production of copy of the order.
Conclusion:
25. The Hon'ble Apex Court since has laid down the proposition in the case State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra), as such, this Court is of the view that what adjudication has been made by the learned Single Judge by showing interference with the impugned order keeping the fact into consideration that the writ petitioner was holding the class-III post as also there is no Page 8 of 9 L.P.A. No. 190 of 2021 misrepresentation or any fraud, which, according to our considered view, cannot be said to suffer from any error.
26. Accordingly, the instant appeal fails and stands dismissed.
27. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) Saurabh / A.F.R. Page 9 of 9 L.P.A. No. 190 of 2021