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Jharkhand High Court

Anil Kumar Sinha vs The State Of Jharkhand on 11 July, 2022

Author: S. N. Pathak

Bench: S.N. Pathak

                                      1                     W.P.(S) No. 2734 of 2017




    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P.(S) No. 2734 of 2017
                                    With
                             I. A. No. 9533 of 2019
    Anil Kumar Sinha                             .... .... Petitioner
                                    Versus
    1.    The State of Jharkhand.
    2.    The Secretary, Law Department (Judicial), Jharkhand, Ranchi.
    3.    The Principal District and Sessions Judge, Dhanbad.
    4.    The Registrar, Civil Court, Dhanbad.
    5.    The Treasury Officer, Dhanbad.
    6.    The Accountant General (A&E), Jharkhand, Ranchi.
    7.    The Manager, State Bank of India, Hirapur Branch, Dhanbad.

                                                 ....     ...          Respondents
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CORAM : HON'BLE MR. JUSTICE DR. S.N. PATHAK

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For the Petitioner : Mr. P.K. Mukhopadhyay, Advocate For the Respondent-State : Mr. Darshana Poddar Mishra, AAG-I For the Resp. No. 6 : Mr. Arvind Kumar Mehta, Advocate For the Resp. No. 7 : Mr. Rajesh Kumar, Advocate

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10/ 11.07.2022 Heard the parties.

2. Though the petitioner has approached this Court with multiple prayers, but at this stage he confines his prayer for quashing the order of recovery contained in Letter No. 46/2016 dated 21.06.2016 (Annexure-9/1), whereby, an amount of Rs. 5,70,560/- paid in excess has been ordered to be deducted from the account of the petitioner and for quashing the office order no. 122/2016 dated 9.3.2016 (Annexure-13 to I.A. No. 9533 of 2019), whereby a sum of Rs. 4,17,149/- was ordered to be recovered from the provisional pension towards excess salary paid on account of ACP benefit.

3. Sans of unnecessary facts, the relevant one is that the petitioner was appointed as Office Clerk on 26.5.1975 in Civil Court, Dhanbad and after rendering a long service, he retired as such on 31.1.2014. After retirement, the petitioner was given the benefit of 1st ACP with effect from 30.3.2010, vide office order no. 8 of 2013. Thereafter, all of a sudden, the respondent no.3 issued office order dated 8.3.2016, whereby, a sum of Rs. 4,17,149/- has been ordered to be recovered from the petitioner, which was paid in excess towards the salary from 15.11.2000 to 31.1.2014. Another letter of recovery was also issued, being letter dated 21.6.2016 to the respondent Bank by the Registrar, Civil Court, Dhanbad to deduct a sum of Rs. 5,70,560/- from the account of the petitioner towards the excess payment of gratuity amount.

4. The petitioner being aggrieved by the orders of recovery, has knocked the door of this Court.

5. Mr. P.K. Mukhopadhyay, learned counsel appearing for the petitioner assiduously argues that the impugned order of recovery is not tenable in the eyes of law, in view of the celebrated judgment of the Hon'ble Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors., reported in (2015) 4 SCC 334. Further, it has been argued that there was no misrepresentation or fraud played by the petitioner and as such, both the orders of recovery i.e. recovery of the amount towards gratuity as well as arrears of salary, which accrued to him due to grant of benefits of ACP, are illegal and fit to be quashed and set aside.

6. Per contra, counter affidavit has been filed. Mr. Darshana Poddar Mishra, learned Addl. Advocate General, represented by the State justifies the impugned order of recovery and submits that the State is fully conscious of the fact that in view of celebrated judgment of the Hon'ble Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. (supra), no order of recovery could by passed after retirement of an employee from the retirement / pensionery benefits, but here in the instant case, the petitioner has received the amount of gratuity twice and as such, order of recovery has been issued. There is no illegality or infirmity in issuance of the order of recovery. The amount, which has been wrongly paid by the State, it is always for the respondent to recover the said amount, as and when it comes to their knowledge. Learned counsel further relied on the judgment of the Hon'ble Apex Court in the case of High Court of Punjab and Haryana Vs. Jagdev Singh, reported in (2016) 14 SCC 267. Learned counsel submits that since the petitioner has given an undertaking and in view of the fact that amount has been recovered in view of the legal propositions, there is no illegality or infirmity in the order of recovery passed by the State. Learned counsel further argues that even regarding ACP benefits, exemption, if any, was granted to the petitioner only after attaining the age of 50 years. The ACP benefit was accrued to him only with effect from 2009 and as such, that plea of the petitioner is of no help regarding exemption from passing the departmental examination. Further it has been argued that since the order of recovery was issued in view of the prevailing circumstance, it cannot be said to be bad in law and as such, no interference is warranted in the impugned orders.

7. Be that as it may, having gone through the rival submissions of 3 W.P.(S) No. 2734 of 2017 the parties across the Bar, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons:-

(i) Admittedly, the order of recovery has been issued after retirement of the petitioner. The petitioner retired from the post of Class-III on 31.1.2014 and the orders of recovery have been passed on 8.3.2016 and 21.6.2016.

(ii) The issue regarding recovery from retiral-cum-pensionery benefits is no more res integra. The same has been set at rest in view of the celebrated judgment in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. (supra).

(iii) The Hon'ble Apex Court, taking into consideration its earlier judicial pronouncements and legal provisions, in the cases of Shyam Babu Verma & Ors. Vs. Union of India & Ors, reported in (1994) 2 SCC 521, Syed Abdul Qadir Vs. State of Bihar & Ors., reported in (2009) 3 SCC 475, and Chandi Prasad Uniyal and Ors vs. State of Uttarakhand and Ors., reported in (2012) 8 SCC 417, has observed in paragraph-18 in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. (supra), which reads 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 herein above, 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 4 W.P.(S) No. 2734 of 2017 extent, as would far outweigh the equitable balance of the employer's right to recover."

(iii) It has clearly observed in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. (supra) that recovery from Class-III and IV employees even prior to one year of retirement is impermissible in the eyes of law.

(iv) Learned Addl. Advocate General by placing reliance on the case of High Court of Punjab and Haryana Vs. Jagdev Singh (supra), submits that if an undertaking is given by the employee, there is no illegality in issuing the order of recovery, when the amount has been paid in excess. Taking into consideration several judgments passed in the cases of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. (supra), Shyam Babu Verma & Ors. (supra), Syed Abdul Qadir (supra) and Chandi Prasad Uniyal (supra), the matter was referred to the Larger Bench in the case of Rakesh Kumar vs. State of Haryana & Ors reported in (2014) 8 SCC 892 (with other analogous cases). The aforesaid reference was answered by the Bench of three Judges on 08.07.2014 and relevant para-12 is quoted herein below:-

"12.Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment."

Therefore, the judgment rendered in the case of High Court of Punjab & Haryana & Ors Vs. Jagdev Singh (supra) will not be applicable in the instant case, for the reason that the petitioner of that case was a Judicial Officer and he has already given undertaking. Herein, the present writ petitioner was a class III employee and has already retired from services in the year 2014 and in view of ratio laid down in the case of State of Punjab & Ors Vs. Rafiq Masih (White Washer) & Ors (supra), order of recovery from the salary or pensionery benefit of the employee, like the petitioner, is impermissible in the eyes of law that too when there was no misrepresentation on the part of employee.

(v) Further it has been argued by learned Addl. Advocate General that the amount of gratuity was paid to the petitioner by mistake. He has received this amount twice and as such, the same has been recovered.

This argument of the respondent is also not acceptable to this Court. Since the gratuity amount was paid to the petitioner by reducing the grade pay, he was entitled for the difference of amount. The amount admittedly was not paid by any mistake or misrepresentation.

(vi) The amount of gratuity is always a part of retirement benefits. If the same has been paid to the petitioner, who was working on Grade-III, the same cannot be recovered after retirement. For recovery, from retirement benefits, the procedures have to be adopted. In the instant case, no procedure has been adopted for recovery of the amount under the Pension Rules and as such, the order of recovery cannot be justified and the same is bad in the eyes of law.

8. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncement, the order of recovery issued vide Letter No. 46/2016 dated 21.06.2016 (Annexure-9/1) and vide office order no. 122/216 dated 8.3.2016 (Annexure-13 to I.A. No. 9533 of 2019) are not tenable in the eyes of law and are hereby quashed and set aside. Needless to say that if any amount has been recovered/ adjusted, the same should be refunded to the petitioner within a period of eight weeks from the date of receipt/ production of a copy of this order and if the amount has not been recovered, the same shall not be recovered in future. The respondent authorities are directed to rectify the mistake committed in pay fixation and revise the pension accordingly, in accordance with law.

9. With the aforesaid observations and directions, the writ petition stands allowed. Consequently, the aforesaid interlocutory application is also disposed of.

(Dr. S. N. Pathak, J.) R.Kr.