Md. Mofijuddin vs The State of Jharkhand and Others

D.G.R. Patnaik, J.—Heard learned Counsel for the petitioner and JC to GA for the respondent State.

The petitioner in this writ application has prayed for the following relief(s).

For a direction upon the respondents to fix and pay the pensionary / terminal benefits to the petitioner on the basis of the last pay drawn by him prior to his retirement.

To direct the respondents to refund the amount of Rs. 1,13,642/- which has been recovered from the payable gratuity of the petitioner and also to return a sum of Rs. 33,408/- which has been recovered from the Leave Encashment amount of the petitioner.

The petitioner, who was Assistant Teacher in Government School, had retired from service on 31.1.2006, in the pay scale of Rs. 8,150/-. His pay scale was fixed at Rs. 8,000/- with effect from 1.4.2001 and after stagnation period of two years, an increment of Rs. 150/- was added to his pay scale and was fixed thereafter at Rs. 8,150/- per month.

Subsequent to the date of his retirement, instead of fixing the pension payable to the petitioner on the basis of the scale on which he had last drawn his salary, the respondent, by the office order dated 29.5.2006 (Annexure-2), had refixed the petitioner''s salary in the scale of Rs. 8,000/- per month and have recovered a sum of Rs. 1,13,642/- from his gratuity and a further amount of Rs. 33,408/- from his Leave Encashment amount.

Assailing the impugned order as being illegal, arbitrary and against the principle of law, learned Counsel for the petitioner submits that the respondents could not have reduced the petitioner''s scale of pay, as because the petitioner was entitled to animal increment in the salary after expiry of the stagnation period. Learned Counsel argues further that even otherwise, no recovery of any amount on the ground of excess payment could have been made from the retiral benefits, without issuing any prior notice and without conducting any Departmental Inquiry, as laid down under the provisions of Rule 43(B) of the Jharkhand Pension Rules, 1950. It is further submitted that admittedly, it is not claimed or alleged by the respondents that the mistake, if any, in the petitioner''s pay fixation, had occurred on account of any fraud or misrepresentation practiced by the petitioner.

To buttress his argument, learned Counsel would refer to and rely upon a Full Bench Judgment of this Court passed in the case of Laxman Prasad Gupta v. State of Jharkhand and Ors. 2007 (4) JLJR 459 and in the case of Smt. Normi Topno v. State of Jharkhand and Ors. 2007 (4) JLJR 466.

In their counter-affidavit, the respondents have denied and disputed the petitioner''s claim. The stand taken by the respondents is that the petitioner was appointed as an Assistant Teacher on 2.11.1966 and his pay scale used to be revised from time to time and lastly, his revised pay scale was fixed at Rs. 5000-150-8000 vide office order dated 10.8.2004 issued by the District Superintendent of Education, Pakur. It is stated that during the petitioner''s service period, he had illegally obtained I.A. trained pay scale of Rs. 790 in place of Rs. 785 from 1.4.1981, till the date of his retirement. Furthermore, he had also illegally obtained increment of Rs. 150/- per month to which he was not entitled since such increment could be drawn only after completing two years from the date when his revised pay scale was fixed. It is this excess amount which has been recovered from his gratuity.

It is further explained that the petitioner had illegally obtained salary for the period of 47 days, i.e. from 3.2.1999 to 21.3.1999, though during the aforesaid period, the petitioner along with several other employees, was on strike.

Furthermore, it was later on detected that the petitioner had obtained an advance of Rs. 8,608/- during the strike period and the same was not adjusted by him. On considering the above, the total strike period during which the petitioner did not attend his duty, was deducted from his permissible Leave and thereafter, Leave Encashment amount was calculated accordingly. The unadjusted advance amount was duly recovered from his Leave Encashment amount.

Relying upon a judgment of this Court in the case of Arun Kumar Kashyap v. State or Jharkhand 2008 (4) J C R 98 learned Counsel submits that as held by this Court, the excess amount received by the employee on account of mistake, can be recovered by the employer since, such wrong benefit given to a person by mistake cannot confer any right on the recipient or act as an estoppel against the person who by mistake has granted such wrong benefit. Learned Counsel adds further that it is a settled principle of law that mistake, if committed in passing administrative order, the same may be rectified and if such mistake is apparent on the face of the record, the rectification thereof is permissible even without giving any opportunity of hearing to the aggrieved party.

From the submissions of the learned Counsel for the respondent State, it appears that on the basis of the pay fixation of the petitioner in the pre-revised scale of Rs. 790/- from 1.04.1981, the petitioner was paid his salary in the aforesaid scale, although such pay scale, as claimed by the respondents, was available only to the I.A. trained teachers and not to the petitioner who did not obtain such training. Apparently, the mistake was on the part of the concerned authorities of the respondent State who had fixed the pay scale of the petitioner on the pre-revised scale of Rs. 790/ and paid the same to the petitioner from 1.04.1981.

As regards the dispute regarding the period from which petitioner''s revised pay scale of Rs. 5000-150-8000 was made effective, there appears a dispute in as much as, while the petitioner claims on the basis of the extracts of his service book, that such revised pay scale was made effective from 1.04.2001, the respondents have disputed the same by claiming that the revised pay scale was made effective from 1.04.2005. This dispute could have been resolved only after giving the petitioner an opportunity of explaining his stand.

Admittedly, the mistake in the fixation of the pay scale of Rs. 790 and the sanction of the annual increment from May 2003 to the petitioner was not occasioned on account of any fraud or misrepresentation on the part of the petitioner. The respondents have admittedly allowed the petitioner to avail the excess payment ever since the year 1981, till the date of his retirement. No notice against the proposed recovery of the amount of the excess payment was served upon the petitioner either prior to the date of his retirement or thereafter and neither was any inquiry conducted to establish as to whether the petitioner was at fault for wrong fixation of his pay scale and for the excess payment made to him. No proceeding under Rule 43(B) of the Jharkhand Pension Rules, 1959 was initiated against the petitioner for such recovery.

This Court vide its Judgment passed in the case of Laxman Prasad Gupta (Supra), has held that the recovery of any amount on the ground of excess payment, from the retiral benefits of the Government employees, cannot be made without recourse to the provisions of Rule 43(B) of the Jharkhand Pension Rules, 1950 and the recovery of the amount from the petitioner''s gratuity is therefore illegal and cannot be sustained.

As regards the dispute regarding the period of strike during which the petitioner did not attend his duty, the respondent''s contention is that such period was adjustable towards the permissible period of earned leave of the petitioner. The fact that the petitioner was on strike for a period of 47 days and had not worked during the said period, has not been denied or disputed by the petitioner. Under such circumstances, the petitioner can be entitled to the Leave Encashment only to the extent of maximum permissible limit, after adjusting the period, which is deemed to have been availed by him during the period of strike.

As regards the claim for recovery of a sum of Rs. 8,608/- which the petitioner had admittedly obtained as an advance, the petitioner is bound to refund the amount and if not refunded, the respondents are entitled to adjust the same from the petitioner''s retiral dues.

In the light of the above discussions, this writ application is allowed to the extent that the recovery of a sum of Rs. 1,13,642/- from the petitioner''s payable gratuity, is hereby quashed. The respondents are directed to pay the aforesaid recovered amount to the petitioner. Furthermore, the respondents shall asses the payable pension to the petitioner on the basis of the scale fixed and the salary drawn by him prior to the date of his retirement. The concerned authorities of the respondents shall complete this exercise and ensure payment of pension to the petitioner besides payment of the amount recovered from his gratuity, within three months from the date of receipt / production of a copy of this order.

With these observations, this writ application is disposed of.

Let a copy of this order be given to the learned Counsel for the respondent State.