Jharkhand High Court
Surendra Kumar Gupta vs State Of Jharkhand on 4 July, 2022
Author: S.N. Pathak
Bench: S.N. Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4797 of 2021
Surendra Kumar Gupta ... ... ... Petitioner
VERSUS
1. State of Jharkhand
2. The Secretary (Health), Department of Health, Medical Education &
Family Welfare, Government of Jharkhand, Ranchi
3. The Director (Health), Department of Health, Medical Education &
Family Welfare, Govt. of Jharkhand, Ranchi
4. The Superintendent, MGM Medical College and Hospital, P.O. and
P.S. - Sakchi, Jamshedpur, East Singhbhum, Jharkhand.
... ... ... Respondents
CORAM : HON'BLE MR. JUSTICE DR. S.N. PATHAK For the Petitioners Mr. Saurav Arun, Advocate Mr. Ujjawal Sinha, Advocate For the Respondents Mr. K.K. Singh, SC-VI 04/04.07.2022 Heard Mr. Saurav Arun, learned counsel appearing for the petitioner and Mr. K.K. Singh, learned SC-VI representing State of Jharkhand.
Petitioner has approached this Court with a prayer for quashing letter dated 12.06.2019 and 29.08.2019, by which a sum of Rs.2,44,522/- has been recovered on account of 2nd ACP paid to him as he had not passed Hindi Noting and Drafting Examination.
As per factual matrix, petitioner was appointed as a X-Ray Technician in MGM Medical College and Hospital, Jamshedpur and thereafter passed Hindi Noting and Drafting Examination in the year 2004 and after long service, superannuated on 31.01.2019. After his superannuation, the respondents have issued letter dated 12.06.2019 and 29.08.2019 (Annexure-9 and 9/1) for recovering the amount of Rs. 2,44,522/- on account of ACP benefits paid to him. It is specific case of the petitioner that it was alleged that as he has not cleared the departmental examination of Hindi Noting and Drafting within the aforesaid period, the amount has been ordered to be recovered. Petitioner represented before the authorities claiming therein that though he was not required to clear the examination as he was exempted in view of Circular of the State Government itself. The recovery order is not tenable but in RC/ 2 spite thereof, no order has been passed on the presentation of the petitioner and as such he has knocked door of this Court.
Mr. Saurav Arun, learned counsel appearing for the petitioner vociferously argues that the impugned order is not tenable in the eyes of law. Learned counsel further argues that though he was exempted from passing Hindi Noting and Drafting Examination in view of Circular dated 15.06.19688 and also in view of the fact that he has already cleared the examination, the impugned order is not tenable in the eyes of law.
Learned counsel places heavy reliance on the Constitutional Bench judgment of Hon'ble Apex Court in case of State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors. [(2014) 4 SCC 334] and also in case of Kusheshwar Nath Pandey Vs. State of Bihar & Ors., reported in (2013) 12 SCC 508. It has further been contended that the notification by which the respondent-authorities were bent upon to recover the amount on the ground that the petitioner has not cleared the Hindi Noting and Drafting Examination has already been taken into consideration by this Court in case of Mrs. Papiya Mukherjee & Ors. Vs. State of Jharkhand & Ors., vide order dated 19.03.2015 passed in W.P.(S). No. 1560 of 2014 and in no way the respondents can be permitted to recover the amount and as such, a direction be given to the respondent-authorities to refund the recovered amount as well as to pass orders for fixation of his pay and other benefits. Learned counsel submits that similar issue has come up before this Court in W.P.(S) No. 301 of 2019 and vide order dated 05.08.2019, the impugned order directing recovery and reduction in pay-scale of said petitioner has been quashed and set aside with a further direction to refund recovered amount, if any, to said petitioner and to disburse entire retiral benefits accordingly. Learned counsel submits that this writ petition may also be disposed of in light of orders and directions passed in W.P.(S) No. 301 of 2019. Learned counsel submits that in view of quashment of impugned order, the recovery is bad in law and respondents be directed to refund the amount which has already been recovered since it has been held to be illegal in the eyes of law. Learned counsel further argues that since Annexure-5 has already been quashed and set aside, it cannot be said that the aforesaid order passed by this RC/ 3 Court was for a particular set of persons and not for everyone affected by the same.
Counter affidavit has been filed by the respondents.
Mr. K.K. Singh, learned counsel representing State vehemently opposing contention of learned counsel for the petitioner submits that admittedly petitioner had not cleared the examination when he was extended the benefits of ACP and as such rightly the impugned order has been issued for recovery of the amount. Learned counsel further argues that the Judgment relied upon by the petitioner does not come to his rescue as the said Judgment was passed as Judgment in personam and not Judgment in rem. Justifying the impugned Judgment learned counsel submits that no interference is warranted in the instant writ petition.
Be that as it may, having gone through rival submission of the parties, this Court is of the considered view that case of the petitioner needs consideration. Admittedly petitioner belongs to Class-III category and has retired from the post of X-Ray Technician. Regarding recovery from the 3rd and 4th Grade employees at the fag end of retirement or after retirement, the Hon'ble Apex Court in its landmark judgment in case of State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors. (supra), has held 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.
RC/ 4
(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."
The issue regarding passing of Hindi Noting and Drafting Examination of the employees in view of notification dated 03.11.2014, fell for consideration before this Court in case of Mrs. Papiya Mukherjee & Ors. Vs. State of Jharkhand & Ors. (supra) and this Court, after hearing the counsel for the parties, was pleased to quash the notification itself. The State has tried to impress upon the Court that only 10 posts have been excluded from passing the Hindi Noting and Drafting examination and the post held by petitioner has not been included in the said notification. From a bare perusal of the notification, it is clear that the same is regarding Nursing cadre. It is surprising that even after repeated orders of this Court, the State has not come-out with any notification to the effect that the pharmacists along with 17 other cadres, which were part of the aforesaid notification and which was subsequently quashed by this Court, have been exempted from passing of the Hindi Noting and Drafting Examination. It is a well settled law that any order visiting civil consequences cannot be passed without affording opportunity of hearing to the employee. In the instant case, from the records of the case, it is crystal clear that the order of recovery was passed without affording opportunity to the petitioner to be heard.
From bare perusal of Notification brought on record by way of Annexure-5, it appears that X-Ray Technician and X-Ray Mechanic, both have been mentioned at Sl. Nos. 4 and 5. Petitioner being X-Ray Technician, cannot be denied the benefits as the same has already been mentioned in the Notification which has already been quashed and set aside by this Court.
In view of admitted facts and in view of the propositions laid down by the Hon'ble Apex Court, the order of recovery dated 12.06.2019 and 29.08.2019 (Annexure-9 and 9/1) are hereby quashed and set aside.
As a cumulative effect of the aforesaid observations, rules, guidelines, judicial pronouncements and legal propositions of law, I RC/ 5 hereby direct the respondents to refund the recovered amount, if any, within a period of eight weeks from the date of receipt/ production of a copy of this order. Respondents are further directed to consider case of the petitioner regarding payment of 3rd MACP in accordance with law subject to his entitlement within a period of 12 weeks.
As a sequitur to aforesaid observations and directions, the writ petition stands disposed of.
(Dr. S.N. Pathak, J.) RC/