Shailendra Kumar Singh v. ………
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S). No. 1767 of 2021 Shailendra Kumar Singh ---------- Versus ………. Petitioner 1.The State of Jharkhand through its Secretary Department of Personnel Administrative Reforms and Rajbhasha, Government of Jharkhand, Project Building, Dist.-Ranchi 2.Deputy Commissioner, Saraikela, Kharsawa, Dist.-Saraikela Kharsawa ………. Respondents. ---------- CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner For the Respondents ----------- : : ----------
Legal Reasoning
Mr. Birendra Kumar, Advocate Mr. Vishal Kumar Rai, AC to GA-IV 04/ 10.06.2024 Heard the parties. 2. Petitioner has approached this Court for quashing the letter contained in memo No.111/Najarat dated 10.03.2021, whereby the order has been passed by the Deputy Commissioner, Saraikela Kharsawa for recovery of an amount of Rs.1,89,078/- on the ground of payment of excess amount due to wrong fixation of salary. 3. Petitioner was appointed on the post of Clerk in the year 1981 and thereafter joined to the said post on 13.08.1981 in the pay-scale of Rs.284- 372/- in the office of Deputy Commissioner, Chaibasa West Singhbhum. Thereafter petitioner was granted 1st time bound promotion on 13.08.1991 in the basic pay of Rs.1530/- and his pay was fixed in the scale of Rs.4,000- 6000/- with basic pay of Rs.5300/- under 5th PRC w.e.f. 01.01.1996. The petitioner was granted the benefit of 1st ACP in the pay scale of Rs.5000-8000 w.e.f. 09.08.1999 with the basic of Rs.5750/- and thereafter benefits under 2nd ACP was granted to him w.e.f. 13.08.2005 in the pay scale of Rs.5500-9000/- with basic of Rs.6900/-. The salary of the petitioner was revised under 6th pay revision w.e.f. 01.01.2006 in the basic of Rs.17040/- in PB-II with grade pay of Rs.4200/-. Thereafter, the petitioner was granted the benefits of 3rd MACP w.e.f. 13.08.2011 in the grade pay of Rs.4600/- with basic pay of Rs.21400/-. Upon grant of annual increment w.e.f. 13.08.2011, he was granted grade pay of 1 Rs.4800/- with basic pay of Rs.22250/-. It is the case of the petitioner that he was granted promotion to the post of Office Superintendent w.e.f. 04.02.2015. The petitioner retied from service on 31.01.2017 from the post of Office Superintendent. After retirement the petitioner was extended all the retiral benefits as per his entitlement and also pension was fixed and it was being paid regularly. To the utter surprise of the petitioner, one fine morning the petitioner was issued a show-cause notice dated 16.05.2020 seeking explanation a wrong fixation of salary and for recovery of amount to the tune of Rs.1,89,078/-. In compliance thereof the petitioner replied to the said show- cause explaining therein that he has received all the financial benefits as per the order issued by the competent authorities and as such there was no fraud or any misrepresentation on the part of the petitioner and rightly he has received the said benefits. However, without considering the reply of the petitioner in right perspective, the order of recovery dated 10.03.2021 was issued whereby order for recovery of an amount of Rs.1,89,078/- has been passed. Aggrieved by the order of recovery the petitioner has approached this Court for redressal of his grievances. 4. Learned counsel for the petitioner submits that instant recovery is in the teeth of celebrated judgment of Hon’ble Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334. Learned counsel further submits that after retirement without initiation of any proceeding under Rule 43(b) of the Pension Rules, no recovery could have
Decision
been made and on that count also the impugned order is fit to be quashed and set aside. 5. Learned counsel for the respondent-State opposing the contention of the learned counsel for the petitioner submits that in view of the order passed by this Court no recovery was made, since the implementation and execution and operation of the order itself was stayed by this Court vide order dated 08.06.2021. Learned counsel further submits that State is very much aware of the celebrated judgment of Hon’ble Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 but simultaneously if any wrong fixation has been done, the respondents are always at liberty to correct the same and the petitioner cannot 2 get the benefits of wrong fixation. Learned counsel further submits that in view of para-18 of the celebrated judgment of Hon’ble Apex Court in case of Rafiq Masih (White Washer) (Supra), no recovery can be made and as such no recovery was made by the respondents but liberty is always there to rectify any mistake which has been done inadvertently at the hands of the respondents. 6. Having gone through the rival submissions of the parties, across the bar, this Court is of the considered view that admittedly the order of recovery dated 10.03.2021 is not permissible in the eyes of law, in view of the celebrated of the Hon’ble Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 para-18 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employees, would be impermissible in law: (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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 outweigh the equitable balance of the employer’s right to recover. The issue fell for consideration before the Hon’ble Apex Court in the case of High Court of Punjab & Harayana & Ors. Vs. Jagdev Singh reported in (2016) 14 SCC 267 and the Court was of the view that even if employee has retired and it is found that excess payment has been made due to inadvertent action of the respondents the same can be rectified regarding recovery the 3 Court was of the view that no recovery from the retired employees, or the employees who are due to retire within one year is permissible, if there was no mis-representation on behalf of employees. Here in the instant case admittedly petitioner has not misrepresented before the authorities for getting the benefits. However, the petitioner was put on notice, he replied to that but thereafter the order of recovery has been passed which is impermissible in the eyes of law and the same is fit to be quashed and set aside. 5. Resultantly the order dated 10.03.2021 is hereby quashed and set aside. Respondents are at liberty to rectify the mistake committed by them inadvertently, and re-fix the pension accordingly, but no recovery can be made. 6. In view of the aforesaid observations, guidelines and judicial pronouncement, the instant writ petition stands disposed of. Rohit/- (Dr. S.N. Pathak, J.) 4