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Showing contexts for: misrepresentation and fraud in Deodhari Saha & Ors vs State Of Jharkhand & Ors on 13 July, 2012Matching Fragments
(Annexure10 to the memo of petition) as well as the order dated 26.12.2007 (Annexure10/1 to the memo of petition) whereby it has been decided by the respondents that the petitioners' appointment as Overseer in the year 197879 was a promotion and, therefore, the time bound promotion given to the petitioners was not due at the relevant time and, therefore, the same has been ordered to be withdrawn by annexure10 to the memo of petition.
2. Counsel for the petitioners submitted that initially the petitioners were appointed as Kit Palak in the year 1978. Thereafter, as stated in paragraph 5 of the memo of petition, a public advertisement was issued in a daily local dated 13th November, 1976 for the appointment of the Overseer in the Department of Industries of the then State of Bihar. Petitioners applied for the post through Employment Exchange. After due process of law, the petitioners were selected. It is further submitted by the counsel for the petitioners that total 160 candidates were selected for the post of Overseer. A panel was prepared. Petitioners' name were included in the selected list. Out of the total 160 candidates, 29 candidates were initially appointed and thereafter in another lot, 13 candidates were appointed as Overseer. Though this was a fresh appointment upon altogether a different post, in appointment letters of the petitioners, it has been referred as 'Promotion', but in fact, it was not a promotion at all. It is further submitted by the counsel for the petitioners that thereafter the petitioners were given for the first time 1st time bound promotion in the year 1988 which has been withdrawn by the respondents vide impugned order dated 03.02.2010 and by order at Annexure10/1 dated 26.12.2007, the respondents have decided that initial appointment of the petitioners was as Overseer was not a fresh appointment but it was a promotion. Counsel for the petitioner submitted that both these orders are patently dehors the law and passed without any notice or without any opportunity of being heard to the petitioners. Some of the petitioners have retired by now and after a lapse of more than two decades now the order of recovery has been passed which is against the principles laid down by Hon'ble Supreme Court in various judgment. Counsel for the petitioners relied upon a decision rendered in (2009) 3 S.C.C. 745 and submitted that in view of the decision, if there is no misrepresentation or fraud played upon by the petitioners, at the time of getting any promotion or at the time of any higher pay scale, the same cannot be ordered to be recovered even though it was given by mistake and, therefore, orders at Annexure10 and at Annexure 10/1 deserve to be quashed and set aside.
"4. Rightly or wrongly, the petitioner Sridhar Pandey was permitted to work and draw his salary. The period of which he worked he will be entitled to the emoluments. If he was given work as a result of any collusion between the officials it is upto the State Government to take action against the officer concerned, who permitted this extension of service beyond retirement. On record, there is nothing against the petitioner that he may have committed any misrepresentation or fraud so as to extract from the period of retirement.
Regional Jt. Director ):
(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
5. In view of the decisions referred above, it has been held by Hon'ble Supreme Court as well as by the Full Bench of this Court and by the other decisions rendered by this Court that if any employee is given any salary without any misrepresentation being committed by the employee or without there being any fraud played upon by that employee, even though the salary paid by mistake cannot be recovered. Few of the petitioners have already been retired from their services by now. In the facts and circumstances of the case, there is no misrepresentation or fraud played upon by the petitioners for getting appointment on the post of Overseer nor there is any misrepresentation or fraud played upon by the petitioners for getting first time bound promotion approximately in the year 1988 and, therefore, the order of recovery passed by the respondentsauthorities at Annexures 10 and 10/1, deserve to be quashed and set aside. Moreover, these orders have been passed 13 years back and that too without any application of mind. Therefore also, there is gross error of principle of law laid down by Hon'ble Supreme Court and hence also, the orders at Annexure 10 and 10/1 deserve to be set aside.