Patna High Court
Tarun Kumar Sinha vs The State Of Bihar & Ors on 24 January, 2017
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No. 550 of 2015
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Tarun Kumar Sinha S/o Late Devendra Prasad Sinha resident of Patel Chowk,
Mahnar, P.O. & P.S. Mahnar, District - Vaishali
.... .... Petitioner
Versus
1. The State of Bihar, through it's Secretary Public Health Engineering
Department, Patna, Bihar
2. The Engineer - in - Chief cum Special Secretary, Public Health Engineering
Department, Bihar, Patna
3. The Chief Engineer, Public Health Engineering Department, Muzaffarpur
Zone,Muzaffarpur, Bihar
4. The Superintending Engineer, Public Health Engineering Circle, Motihari,
East Champaran, Bihar
.... .... Respondents
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Appearance :
For the Petitioner/s : Mr. Harendra Kumar Tiwary
For the Respondent/s : Mr. Nirvay Prashant, AC to SC-17
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
ORAL JUDGMENT
Date: 24-01-2017
Heard Sri Harendra Kumar Tiwary, learned counsel for the
petitioner and learned A.C. to Standing Counsel - 17.
2. The petitioner, who superannuated while functioning as
Typist w.e.f. 31-10-2014, has approached this Court invoking its writ
jurisdiction under Article 226 of the Constitution of India, with a
prayer to quash an order contained in Memo No. 609 dated
03-12-2014issued under the signature of Superintending Engineer, P.H.E.D., Motihari (Annexure - 3 to the present petition), whereby a decision was taken to modify the benefit granted to the petitioner in respect of 1st and 2nd A.C.P. with retrospective effect, that too after expiry of several years. By the said order, it was decided that the Patna High Court CWJC No.550 of 2015 dt.24-01-2017 2/7 benefit of 1st A.C.P. would be payable to the petitioner w.e.f. 16-01-2010 in place of 07-06-2002. The petitioner has further prayed for restraining the respondents from recovery of any amount. It has been indicated that by Annexure - 3, besides modifying the date, decision was taken to recover the amount purported to be paid excess. As per pleading, the petitioner was granted benefit of 1st A.C.P., vide order dated 30-10-2004. Subsequently, after being found that petitioner was entitled to get benefit of 2nd A.C.P., same was granted to the petitioner by order dated 29-12-2011, which was w.e.f. 07-06-2012. Thereafter, the petitioner discharging his duty finally superannuated on 31st of October, 2014. After his retirement, to the surprise of the petitioner, the respondent no. 4 issued the impugned order and decided to extend the date of benefit of 1st A.C.P. from 07-06-2002 to 16th January, 2010 and also a decision was taken to recover the excess paid amount. A specific plea has been taken that before issuance of Annexure - 3, neither petitioner was asked for any explanation nor any notice was given to him.
3. Sri Tiwary, learned counsel for the petitioner submits that the petitioner retired as Class - III employee and after retirement, on the pretext of non-passing of the departmental examination, the authority concerned was not at all authorized to pass any order interfering with the benefit under the A.C.P. scheme, which was granted long back to the petitioner. Moreover, in the present case, as Patna High Court CWJC No.550 of 2015 dt.24-01-2017 3/7 per learned counsel for the petitioner, all action has been taken after the petitioner was superannuated. Learned counsel for the petitioner has also placed reliance on Annexure - 2 to the present petition i.e. Government Resolution dated 14-07-2010 (Annexure - 2 to the writ petition). According to learned counsel for the petitioner, it is the resolution of the Government itself, which says that if any benefit under the A.C.P. Scheme was granted to an employee, no step can be taken to infringe the right of employee, which had occurred prior to issuance of such resolution. Sri Tiwary, learned counsel for the petitioner has placed heavy reliance on a judgment of the Apex Court reported in 2015( 1) P.L.J.R. (SC) 261 ( State of Punjab and others Vs. Rafique Masih (White Washer). In placing reliance on the said judgment, it has been argued that if there is no allegation of obtaining benefit by way of suppression of fact or committing fraud, no recovery can be effected from an employee, that too in respect of Class III or Class IV employee, who had already superannuated. Orally, it was submitted by learned counsel for the petitioner that huge amount has already been recovered from the retiral benefit of the petitioner, pursuant to Annexure - 3 to the present petition.
4. Sri Nirvay Prashant, learned A.C. to Standing Counsel - 17 has vehemently opposed the prayer of the petitioner. He has emphatically argued that the scheme, under which benefit of A.C.P. was to be granted, categorically contemplates that if an employee has not Patna High Court CWJC No.550 of 2015 dt.24-01-2017 4/7 passed departmental examination, he is not required to be granted the benefit. He has specifically relied on Annexure - A to the counter affidavit to show that as per rule, passing of departmental examination was mandatory and since petitioner had not passed, immediately after detecting the error, same has been corrected. He has also placed reliance on a Government instruction, which was issued in the year 1980, vide Annexure - B to the counter affidavit to elaborate that passing of departmental examination was must for getting the benefit.
5. Besides hearing learned counsel for the parties, I have also perused the materials on record. After going through the same, the Court is primarily of the opinion that order impugned i.e. Annexure - 3 to the writ petition is required to be set aside on the ground that the said order was issued without any notice to the petitioner. Even by the impugned order, which was issued obviously after retirement of the petitioner, a decision was taken to take away the right of the petitioner regarding grant of 1st A.C.P., which was granted to the petitioner long back w.e.f. 07-06-2002 itself. After such a long time, an order passed behind back of the petitioner may not be sustained in the eye of law. Moreover, learned counsel for the petitioner has rightly placed reliance on judgment of Rafique Masih's case (supra). For just decision in the matter, it would be relevant to quote paragraph - 12 of the said judgment, which is as follows:
"12. It is not possible to postulate all situations of hardship, which would govern Patna High Court CWJC No.550 of 2015 dt.24-01-2017 5/7 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 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 employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from 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 out weigh the equitable balance of the employer's right to recover."
Patna High Court CWJC No.550 of 2015 dt.24-01-2017 6/7
6. On perusal of the direction of the Apex Court, it is clear that in respect of Class III or Class IV employee, that too after retirement, no recovery can be effected, if it is not a case of getting benefit by way of suppression or misrepresentation.
7. Though, counter affidavit has been filed, it has not been indicated that petitioner had got benefit by making any misrepresentation or suppression. The order impugned was passed on 03-12-2014, whereas, petitioner retired as Class III employee w.e.f.
31-10-2014.
8. In view of facts and circumstances, particularly; law laid down by the Apex Court in Rafique Masih's case (supra), there is no reason to allow the Annexure -3 to continue.
9. Accordingly, order contained in Memo No. 609 dated 03-12-2014 issued by the Superintending Engineer (Annexure - 3) is, hereby, set aside.
10. The writ petition is allowed with a direction to refund the amount if it has been recovered from the petitioner in the light of Annexure - 3 to the writ petition. The entire recovered amount is required to be refunded to the petitioner within a period of eight weeks from the date of receipt/production of a copy of this order. It is made clear that if recovered amount is not paid to the petitioner within aforesaid time, the petitioner shall be entitled to get simple interest at the rate of 6% on the recovered amount from the date of recovery till Patna High Court CWJC No.550 of 2015 dt.24-01-2017 7/7 the date of payment. In that eventuality, the State would be at liberty to recover the interest amount from the pocket of concerned employee/officer responsible in making delayed payment.
11. The writ petition is allowed.
(Rakesh Kumar, J.)
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