Basant Kumar Choudhary vs The State of Jharkhand and Others

Ajit Kumar Sinha, J.—The present writ petition has been filed for the following reliefs;

For issuance of a writ in the nature of mandamus or any other appropriate writ, order or direction, directing upon the concerned Respondent asking to show cause under what authority of law they are not allowing the petitioner to get pension as per his last pay scale i.e. 1400-2300, while he retired on 31.3.1994 as a Supervisor and the concerned Respondent (Respondent No. 5) dare to rectify his pay scale for relevant period of 1981-82 on 16.9.95, after one and half years of his retirement, without following the principle of natural justice asking him in a show cause, in this regard if so required.

It has been further prayed to direct the respondent concerned to forthwith pay the revised arrear of pension and exceeded over amount till the date of final payment because the petitioner had no knowledge about the modification after receiving a letter sent to him by Respondent No. 4

It has also been prayed to direct the respondent concerned to forthwith fix pension as per his last pay scale as mentioned here in above because the competent authority had already sent pension paper of the petitioner mentioning therein the same pay scale i.e. 1400-2300.

The facts in brief are stated as under;

The petitioner joined the service of the concerned department in the year 1952 as a Kit Palak and continued till his retirement on 21.3.1994. It appears that during the service tenure the petitioner was permanently posted as an Overseer vide office order dated 15.2.1957. Later, on 17.12.82 the petitioner along with four other similarly situated persons were promoted as a Supervisor in the pay scale of Rs. 580-850/- but later on recommendation of the Anomaly Committee in the year 1986 their pay scale had been revised as 680-965. The State Government further revised their pay scale in the pay scale of Rs. 1320-2040. According to the petitioner he was entitled to 211 Time Bound Promotion in the year 1989 while he was working as Supervisor in the pay scale of Rs. 1320-2040.

The counsel for the petitioner further submits that the Government was pleased to revise the pay scale to Rs. 1400-2300 even though the designation remained the same as Supervisor and he retired on the same scale.

According to the petitioner his pension was not fixed nor his retiral dues were paid and finally he was constrained to file C.W.J.C. No. 3085/95 (R) which was finally disposed of on 15.2.1996 with positive observation made in favour of the petitioner.

In compliance to the order he moved a representation for redressal of his grievances but nothing happened and he again preferred second writ petition being W.P.(S) No. 5981/2001 on 15.12.2001 and the Hon''ble Court directed the petitioner to prefer a Contempt application as earlier the matter had been decided by this Hon''ble Court.

Thereafter, the petitioner preferred Cont. (Civil) 389/2001 and the same was finally heard and disposed on 15.6.2002 and finally payment was made in the court on that day.

According to the petitioner his pension should have been fixed as per the last pay scale of Rs. 1400-2300 i.e. @ Rs. 1150 per month instead of Rs. 1020/-. However, the Accountant General, Bihar vide its letter dated 11.9.1999 gave a detailed reasoning and had fixed the pension as per the pay scale of Rs. 1320-2040/- instead of Rs. 1400-2300/-.

The main contention raised by the petitioner is as follows;

(i) Whether the Respondents have got any jurisdiction to retain the arrears of pension of the petitioner without any authority of law ?

(ii) Whether the action of the Respondents is arbitrary in not allowing the actual pension for which he is legally entitled ?

(iii) Whether the Respondents act deprived him getting pension as per his last pay scale 1320-2040/- instead of 1400-2300 ?

(iv) Whether the Respondents action is not arbitrary, illegal, malafide, modifying his previous pay scale on 15.9.1995 after his retirement on 31.3.1994?

(v) Whether the Respondents have got any authority or jurisdiction to delay or not pay actual pension, which should be paid to him ?

(vi) Whether the action of Respondents is arbitrary and hits the Article 14 and 16(1) of the Constitution of India?

(vii) Whether the impugned action of the Respondents is otherwise illegal, bad and not sustainable in the eye of law?

According to the respondents it has been submitted that the prayer for revised pension is not maintainable. It has also been submitted that in the service book the pay scale of the petitioner was entered as Rs. 1320-2040 which was also corrected by Accountant General, Bihar as there was no scale of Rs. 1400-2300/- and as per the Audit Report the scale of petitioner was to be Rs. 2040/- and payment against excess was to be recovered. It has also been stated that this fact has also been confirmed by the Government and accordingly his final pension has per the Pay Revision Committee Report was fixed at Rs. 1320-2040/-.

The counsel for the petitioner has prayed for payment of arrears of pension as well as fixing his pension on the basis of last pay scale drawn and has further prayed that the order for recovery should be declared null and void.

I have considered the pleadings, submissions and the rival arguments of the parties. The learned Counsel for respondent No. 4 has referred to and relied upon the following judgments Union of India and Others Vs. Smt. Sujatha Vedachalam and Another, Union of India and Others Vs. Rakesh Kumar etc., and Union of India (UOI) Vs. S.R. Dhingra and Others, to support his case that the petitioner being erroneously paid higher amount by mistake and thus they were entitled to recover the same. In Union of India and Others Vs. Smt. Sujatha Vedachalam and Another, the matter related to recovery of excess payment on account of wrong fixation of pay and the Hon''ble Supreme Court directed that recovery of excess payment may be recovered in easy installment spread over for 15 years or till the date of retirement.

This was a case where the concerned officer was actually in service and had not retired and it was in these backgrounds that the Hon''ble Supreme Court has directed to recover the amount in easy installment which may be spread over for 15 years or till the date of retirement. Thus, this judgment does not support the contention raised by the counsel for respondent No. 4.

The second case referred to and relied upon i.e. Union of India and Others Vs. Rakesh Kumar etc., is related to installment of pensionary benefit. This was a case where pensionary benefit was granted to an ineligible employee in violation of the statutory rules and the facts of this case does not apply to the present case

The third case referred to and relied upon is Union of India (UOI) Vs. S.R. Dhingra and Others, which is against the respondents and in favour of the petitioner and at paragraph 28 the Hon''ble Supreme Court held as under:

However, any amount already paid to the respondents and other similarly situated persons shall not be recovered from the.

The fact remains that this is a case where admittedly the respondent authorities have committed the mistake and thus they cannot take benefit of their own default. It is not a case where any excess payment was made to the petitioner by making any false representation or committing fraud, it was a bonafide case of pension fixed on the basis of last pay drawn and thus petitioner cannot be blamed or put to fault.

It is well settled that any action which is punitive in nature and involves civil consequences has to necessarily comply with the cardinal principle of natural justice otherwise such action is violative of Article 14 of the Constitution of India. The petitioner was entitled to at least a show cause and explanation before making the recovery.

Considering the aforesaid facts and circumstances of the case, the amount already paid towards pension to the retired petitioner cannot be recovered. However, the respondents are entitled to make necessary correction in the pay scale last drawn after giving due notice to the petitioner and thereafter can fix the revised pension in accordance with law for further payment.

This writ petition is partly allowed but without any order as to costs.