The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 3138 of 2022 Manwendra Prasad, aged about 55 years, Son of Late Kartik Prasad, resident of Village Nawadih, P.O. & P.S. Jarmundi, District- Dumka, Jharkhand … Petitioner -Versus- 1. 2. 3. 4. 5. 6. The State of Jharkhand through the Chief Secretary, Government of Jharkhand, Ranchi, Project Building, Dhurwa, P.O. & P.S. Dhurwa, District- Ranchi (Jharkhand) The Secretary, Urban Development and Housing Department, Jharkhand, Project Building, Dhurwa, P.O. & P.S. Dhurwa, District- Ranchi (Jharkhand) The Director, Municipal Administration, Urban Development and Housing Department, Government of Jharkhand, Project Building, Dhurwa, P.O. & P.S. Dhurwa, District- Ranchi (Jharkhand) The Joint Secretary, Urban Development and Housing Department, Jharkhand, Project Building, Dhurwa, P.O. & P.S. Dhurwa, District- Ranchi (Jharkhand) The Deputy Commissioner, Dumka, P.O., P.S. & District- Dumka (Jharkhand) The Executive Officer, Nagar Panchayat, Basukinath, P.O. Basukinath, P.S. Jarmundi, District- Dumka (Jharkhand) … Respondents -----
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ----- For the Petitioner For the State : Mr. Anjani Kumar Verma, Advocate : Mr. Devesh Krishna, S.C. (Mines)-III Mr. Kumar Pawan, A.C. to S.C. (Mines)-III ----- 06/31.08.2024 Heard Mr. Anjani Kumar Verma, learned counsel for the petitioner and Mr. Devesh Krishna, learned counsel for the State. 2. The prayer in the writ petition is made for quashing of the order dated 24.02.2018 passed by the Executive Officer, Nagar Panchayat, Basukinath by which after 19 years without issuing any prior notice and without granting any opportunity of hearing to the petitioner, on the basis of audit objection, the petitioner's pay scale has been reduced with -1- W.P. (S) No. 3138 of 2022 retrospective effect i.e. w.e.f. 01.04.1999 cancelling all the increments granted to the petitioner w.e.f. that date and an order of recovery of excess pay amounting to Rs.10,18,448/- with additional 12% interest has been ordered to be recovered by deducting 50% salary of the petitioner from monthly salary bill of the petitioner. 3. Learned counsel for the petitioner submits that the then Government of Bihar came out with notification for appointment and pursuant to that, the petitioner has applied and by the decision taken in the meeting of the Board of Notified Area Committee, Basukinath on 19.01.1996, the petitioner was appointed as Tax Daroga cum Cashier on the vacant and sanctioned post in the pay scale of Rs.975-1540/- vide letter dated 04.04.1997 issued by the Sub Divisional Officer, Dumka cum Chairman, Notified Area Committee, Basukinath, Dumka and, thereafter, the petitioner joined on 04.05.1997 and salary and other allowances were approved by the Urban Development Department, the then Government of Bihar, Patna. He further submits that by letter dated 19.06.1997 issued by the Deputy Secretary to the Government, Urban Development Department, Bihar, Patna intimated the Sub-Divisional Officer, Dumka cum Chairman, Notified Area Committee, Basukinath that for appointment/promotion of the employees against the sanctioned vacant post, the Board of Municipality/Notified Area Committee it itself competent and as such to act accordingly. He also submits that as per the decision taken by the Board of Nagar Panchayat, Basukinath in its meeting dated 18.10.2011, the petitioner, who was working for more than 14 years of service on the post of Tax Daroga cum Cashier, was granted -2- W.P. (S) No. 3138 of 2022 promotion on the vacant and sanctioned post of Head Assistant cum Accountant vide letter dated 21.10.2011 issued by the Executive Officer, Nagar Panchayat, Basukinath and, thereafter, pay fixation of the petitioner was revised w.e.f. 01.01.2006 as per 6th Pay Revision and the petitioner was being paid salary on the promoted post and service book of the petitioner was sent vide letter dated 15.01.2018, contained in Annexure-5/A. He then submits that the promotion was granted by the authority concerned and the petitioner has not suppressed anything and it was within the knowledge of the competent authority that the petitioner has not passed Hindi Noting and Drafting Examination as well as Departmental Examination, however, by the impugned order, without providing any opportunity of hearing to the petitioner, pay scale has been reduced and direction has been issued to deduct the amount of Rs.10,18,448/- with additional 12% interest from monthly bill of the petitioner. He relied upon the judgment passed by the Hon'ble Supreme Court in the case of State of Punjab v. Rafiq Masih, reported in (2015) 4 SCC 334 . He refers paragraph 18 of the said judgment, 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 employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (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 -3- W.P. (S) No. 3138 of 2022 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.” 5. Learned counsel for the State opposed the prayer on the ground that in paragraphs 10 of the counter affidavit, it has been disclosed that in the audit, it was found that the petitioner has not passed Hindi Noting and Drafting Examination and in view of that, the impugned order has been passed. He submits that if the promotion was granted wrongly, the Government is competent to revise the salary. 6.
Decision
In view of the above, it transpires that the petitioner was appointed pursuant to the decision taken in the meeting of the Board of Notified Area Committee, Basukinath on 19.01.1996 and the petitioner was further promoted to the post of Head Assistant cum Accountant vide letter dated 21.10.2011. The salary on the promoted post was further approved by the Government and, thereafter, the petitioner was receiving salary, however, on the audit report, when it was found that the petitioner has not passed Hindi Noting and Drafting Examination, the impugned order dated 24.02.2018 has been passed without providing any opportunity of hearing to the petitioner, which is against the mandate of law. There is no suppression on the part of the petitioner. Further, the case of the petitioner is covered in light of the judgment passed in the case of Rafiq Masih (supra). -4- W.P. (S) No. 3138 of 2022 7. In view of the above facts and considering that without providing any opportunity of hearing to the petitioner, the impugned order been passed, as such, the order dated 24.02.2018 passed by the Executive Officer, Nagar Panchayat, Basukinath is, hereby, quashed. 8. So far as recovery is concerned, there shall not be any recovery in view of the well settled law in light of the judgment passed in the case of Rafiq Masih (supra). 9. The authority concerned will issue notice upon the petitioner and after providing opportunity of hearing to the petitioner, they will pass a fresh order on the point of reducing the salary of the petitioner. 10. The deducted/recovered amount shall be returned back to the petitioner forthwith and even if again authority decided to reduce the salary, no deduction can be made in view of settled position of law. 11. Accordingly, this petition is disposed of. Ajay/ A.F.R. (Sanjay Kumar Dwivedi, J.) -5- W.P. (S) No. 3138 of 2022