Patna High Court
Shabbir Alam vs Bihar State Electricity Board And Ors. on 4 February, 2005
Equivalent citations: 2005(1)BLJR576
Author: S.K. Katriar
Bench: S.K. Katriar
ORDER S.K. Katriar, J.
1. A large number of writ petitions have been coming up before this Court and continue unabated in spite of a large number of reported judgments on the question whether or not money benefits granted to an employee while in service can be recovered from him after an appreciable length of time, particularly from his post-retirement benefits. Because of conflict of judgments rendered by Courts earlier on this point, it has become increasingly difficult for Single Judge Benches, and perhaps Division Benches also, to discern consistent principles and apply them uniformly. Without being exhaustive, the following are the broad features of such writ petitions.
(i) A money benefit is conferred on the employee allegedly wrongly while in service which is sought to be recovered after a long lapse of time, generally after retirement from the post-retirement benefits;
(ii) Very often the employee is given the increments granted after having passed the Hindi Noting and Drafting Examination, which the employee really had not passed, and is detected at a much later date. In small percentage of cases, the employee has passed the same at a later date but had received the increments from an earlier date ;
(iii) There are also cases of grant of selection grade or time-bound promotions which on later calculations was found to be admissible from a latter date, or completely inadmissible, or at a lower rate, or the second time-bound promotion was inadmissible.
(iv) There are also cases of wrong fixation of pay; (v) Then there are cases of advances given for execution of official work and has not been accounted for wholly or in part; (vi) In most of the cases, perhaps invariably, no show-cause notice is issued on the twin questions of justifiability of the recovery and the details of calculations; (vii) Most of the cases are of recovery simpliciter, there is no allegation or evidence of misrepresentation, suppression of fact, fraud or the like, and is not stigmatic in nature. (viii) The mistake is generally detected after retirement, on account of audit report or when the pension papers are being prepared; (ix) The excess payment often times is sought to be recovered from gratuity; (x) Subject to exceptions, the cases are generally of Class III employees, and occasionally of class IV employees. (xi) None of these cases relate to Rule 43(b) and/or Rule 139 of the Bihar Pension Rules ; (xii) Most of the cases are against the Bihar State Electricity Board;
2. In the present case, a sum of Rs. 31,818.60p. has been recovered from the petitioner's entitlement to gratuity on account of excess salary drawn by the petitioner while he was in service, who was a Class IV employee under the Bihar State Electricity Board, and superannuated on 30.4.2001. In his detailed submissions, learned counsel for the petitioner has, inter alia, submitted that the same cannot be adjusted from the amount of gratuity. Relying on the judgment of a learned Single Judge of this Court reported in 2004(4) PLJR 173 (Surya Nath Mishra v. The Chairman, Bihar State Electricity Board and Ors.), he submits that the same cannot be recovered after such a long lapse of time, particularly after this retirement. On the other hand, learned counsel for the Board has, in his equally elaborate submissions, inter alia, submitted that the provisions of the Gratuity Act, are not attracted in the present case and, therefore, the excess payment can be recovered from the amount of gratuity. He submits in the alternative that it can be adjusted from the account of contributory provident fund. He relies on a Division Bench judgment of this Court reported in 2004 (3) PLJR page-3 (Bihar State Electricity Board v. Man Bahadur), and some unreported judgments.
3. On a close perusal of the judgment in Surya Nath Mishra (supra), I find that the learned Single Judge has held that the judgment of the Division Bench in Bihar State Electricity Board v. Man Bahadur), (supra) is Per Incuriam is not a settler on the questions in hand because the earlier Division Bench judgments of this Court reported in 2002 (3) PLJR 67, (Bihar State Electricity Board v. Jagdeo Singh), and 2001 (2) PLJR 58 (Bihar State Electricity Board and Ors. v. Madan Mohan Prasad and Ors.) were not brought to the notice of the Division Bench. The learned Single Judge has proceeded to observe in paragraph 17 of his judgment that the case before the Hon'ble Judge was covered by the judgments of the Supreme Court reported in (2000) 10 Supreme Court cases 99 (Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr.) as well as 1995 Supp. (1) SCC 18, (Sahib Ram v. State of Haryana and Ors.). He has also quoted the following observations of a Division Bench of this Court in the case of Bihar State Electricity Board v. Jagdeo Singh, 2002 (3) PLJR 67) ;
"..... High Court should not come to the rescue of the Board to make deductions and let the official who was a ready party in the irregularities walk off without being questioned....." If the Board argues that this is a matter of accountability, then it must question and put its own house in order. If at the fag-end, this employee is being asked to return the money received as an irregular gain, granted in 1976 then let the Officer be identified who granted the sanction to pay these three increments to the appellant, Jagdeo Singh. The Board cannot look on the other side on those who have arranged for these presents to be delivered to the employees, who enjoyed them for almost 25 years. The High Court cannot be involved in such matters when the Board is not absolved in such irregularities being permitted unchecked.......... This sort of undertaking is for bona fide mistakes and errors which permit marginal adjustments....."
The learned Single Judge has relied on various other Supreme Court judgments and concluded by observing that "the judicial discipline demands to respect the verdict of the highest Court of the land following the law of precedence and not ignore it or comment upon it. It is really unfortunate that despite the law being settled by the highest Court of the land, the respondent-Board has been dragging its employees to litigation and unnecessarily burdening this Court by flow of such litigations..."
4. I have no manner of doubt that the position in law has become extremely confusing on account of conflicting judgments and no consistency of principles, and exceptions, if any, are discernible. The problem is accentuated not only before the Single Judge Benches but also Division Benches on account of a very unhappy reality pervasive all over India and has a direct bearing on our established principles of law of precedence which have grown during the days when all important matters were disposed of at the stage of "Hearing", and has now fundamentally changed on account of the flood of litigations. On account of a multiplicity of factors, most of the matters are now disposed of at the stage of admission by short orders and are profusely cited at the Bar. Can these really be treated as orders or judgments strictly within the law of precedents.
5. I am, therefore, of the view that the issues indicated above may be placed before a Bench of five or three Judges for an authoritative pronouncement. Put up before Hon'ble the Chief Justice for appropriate orders.