Bibhuti Prasad Singh vs State of Jharkhand

The petitioner has approached this Court with a prayer for quashing Office Order no. 92 dated 29.10.2010 issued under the signature of Executive

Engineer, Drinking Water and Sanitation Division, Deoghar (Annexure-8), wherein the petitioner has been said to be demoted automatically from the

post of Senior Accounts Clerk to the post of Accounts Clerk after about ten months from the date of his retirement and consequent there upon to

quash the office order No. 5 dated 20.01.2011Â (Annexure-9) by which an amount of Rs. 2,00,935 has been arbitrily ordered to be recovered from

the retiral benefits.

Further prayer has been made to pay the entire amount as recovered from the amount of post retiral benefit and fix the pension and to pay the grauity

and leave encashment on the basis of his last pay.

The short facts of the case lies in a narrow compass. The petitioner was appointed against the post of Chaukidar on 14.08.1974 and after about six

years, he was appointed to the post of Junior Accounts Clerk on 19.02.1980. Thereafter, on completion of 10 years of services as a Junior Accounts

Clerk, the petitioner was given time bond promotion in the pay scale of Rs. 1400-2600/-. The petitioner was given regular promotion to the post of

Senior Accounts Clerk with a condition to clear the departmental examination within two years and simultaneously, it was also ordered that no any

financial benefit would be admissible as the petitioner was already getting his pay in the same pay scale, which was accorded after grant of time bond

promotion.

It is specific case of the petitioner that he was exempted from appearing in the Departmental Accounts Examination vide order dated 16.07.2004. On

completion of 24 years of services, vide order dated 16.12.2004, the petitioner was granted benefits of 1st and 2nd ACP with financial benefits with

effect from the date of grant of exemption from appearing in the Departmental Examination. The petitioner was superannuated from services on

31.12.2009 on attaining the age of superannuation. Thereafter, the Superintending Engineer, Deoghar sent a proposal to Commissioner, Dumka to

accord approval of the order exempting the petitioner from appearing in the departmental examination, which was turned down as it became

infructuous by that time as the petitioner was already retired. Pursuant thereto, the respondents-authority issued Office Order No. 92 dated

29.10.2010 by which the petitioner was said to be automatically demoted to the post of Junior Accounts Clerk and reverted in the pay scale of Rs.

4500-7000/- which was lower by two stage in comparison to pay scale of Rs. 5000-8000/- and Rs. 5500-9000/which were granted in the year, 2004

against benefits of ACP. Thereafter, respondents issued an office order No. 5 dated 20.01.2011 by which it was ordered to make recovery of the so

called excess amount paid in the form of salary from the post retirement benefit. Aggrieved thereby, the petitioner represented before the respondents,

but nothing has been done till date. Hence, the petitioner was constrained to move before this Court for redressal of his grievances.

Mr. Baidh Nath Mishra, learned counsel for the petitioner submits that respondents have illegally and arbitrary issued the impugned orders i.e.

Annexures 8 & 9 to the writ petition, without affording any opportunity of hearing and without even issuing a show cause notice against the petitioner,

the impugned orders have been passed. There is no fault on the part of the petitioner. Learned counsel further submits that though the exemption from

passing the Departmental Accounts Examination was granted to the petitioner by Superintending Engineer vide its order dated 16.07.2004, the

respondents due to the laches on their part, sent proposal for approval before the Commissioner, Dumka vide letter dated 11.03.2010, only after

retirement of the petitioner, which was turned down vide letter dated 01.09.2010 on the ground of delay. Learned counsel further submits that delay in

approval was on the part of the respondents, as the petitioner has already been granted exemption in the year, 2004 itself and as such, there is no

delay or any laches on the part of the petitioner and on the ground of non-approval by the Commissioner, the respondents cannot be allowed to

recover the amount from the pensionary benefits as well as retiral benefits, after his retirement, which is not tenable in the eyes of law.

Mr. Nikhil Kumar, learned counsel for the respondents vehemently opposes the contention advanced by the learned counsel for the petitioner and

submits that there is no illegality or infirmity in the impugned orders as the petitioner did not clear the departmental examination but he was exempted

from the same although the same was not accorded approval in view of Annexure-4 to the writ petition. Learned counsel further argues that petitioner

was retired on 31.12.2009 and thereafter, the order of non acceptance of exemption of departmental examination was given since the order needs to

be approved by the Competent Authority, who is Commissioner not the Superintending Engineer. Learned counsel further argues that this Hon'ble

Court in case Ashok Kumar Biswas Vs. State of Jharkhand in W.P.(S) No. 6755 of 2012, decided the same issue and claim of the petitioner in that

case was rejected on the ground of not clearing the departmental examination. Learned counsel further argues that writ petition is also not

maintainable on the ground of delay and laches as the petitioner has challenged the impugned orders of the year, 2010 & 2011 in the year, 2017.

Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs

consideration. Admittedly, the petitioner was granted exemption from appearing in Departmental Accounts Examination vide office Order No. 22

dated 16.07.2004 by the Superintending Engineer and it was the respondent-authorities who have sent the proposal for approval belatedly before the

Commissioner vide letter dated 11.03.2010, only after retirement and also after six years of exemption granted by the Superintending Engineer. The

petitioner cannot be made to suffer due to the delay and laches on the part of the respondent-authorities. As far as recovery is concerned, the

petitioner has not misrepresented anything on his side and as such, punishment of recovery of excess paid amount cannot be imposed upon him. It is

not desirable for the respondents to recover any amount which has already been paid to the petitioner after retirement.

The Hon’ble Supreme Court para-18 in case of State of Punjab & Ors.Vrs. Rafiq Masih (White Washer) & Ors. [(2014) 4 SCC 334], 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 ClassIV service (or Group 'C' and Group 'D' service).

(ii)Â Recovery from retired employees, or employees who aredue to retire within one year, of the order of recovery.

(iii)Â Recovery from employees, when the excess payment hasbeen made for a period in excess of five years, before the order of recovery is issued.

(iv)Â Recovery in cases where an employee has wrongfullybeen 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)Â In any other case, where the Court arrives at theconclusion, 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.â€​

The Full Bench of this Hon’ble Court in the case of Smt. Normi Topno vs the State Of Jharkhand & Ors., reported in 2008 (1) JCR 381 Jhr., has

held as under:-

“After retirement, there is no relationship of employer and employee and as such no recovery can be made from the retrial benefits without

following procedure of law as provided under Rule 43(b) of the Bihar Pension Rules. Hence, without fulfilling the conditions under Rule 43(b) and

without cancelling the order of promotion after enquiry by the competent authority, pension and other retiral benefits cannot be recovered that too

without giving opportunity to the retired employee and without giving any finding with reference to the misrepresentation or misconduct on the part of

the concerned employee or any other employee merely on the recommendation of audit objection.â€​

As cumulative effect of the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, I hereby quash and set aside the

Annexure- 8, dated 29.10.2010 & Annexure- 9, dated 20.01.2011 to the writ petition. In view of quashment of aforesaid letters, the respondents are

directed to refund the amount which have already been recovered from the petitioners, within a period of six weeks from the date of receipt/

production of a copy of this order.

Resultantly, the writ petition stands allowed