Rakesh Kumar Sinha And Ors vs State of Jharkhand And Ors

Heard Mr. Saurabh Shekhar, learned counsel for the petitioner and Mr. Ashok Kumar Yadav and Mr. Abhijeet Kumar learned counsel for the

respondents-State as well as Mr. Sudarshan Srivastava, learned counsel for respondent no.4-Accountant General.

These writ petitions have been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been

heard.

The petitioner has preferred the writ petition being W.P.(S) No.1718 of 2019 for quashing the office order dated 15.03.2019 issued by respondent no.3

whereby direction has been issued to recover the amount that has been paid in excess to the present petitioner after the retirement.

The writ petition being W.P.(S) No.1719 of 2019 has been filed for arrears of salary appertaining to benefits of 2nd MACP and the benefit of 7th

PRC. Prayer has also been made to enhance the benefit of 3rd MACP for which the petitioner has become eligible on 19.04.2018 on completion of 30

years of regular service.

The petitioner was appointed on the post of Junior Engineer in the pre-revised pay scale of Rs.5000-8000 on 13.04.1988. The petitioner has passed

Hindi Noting examination on 14.03.1989. The petitioner has also passed Departmental examinations. The services of the petitioner got confirmed on

11.09.2003. The petitioner was granted benefit of 6th PRC in the scale of Rs.9300-34800/- in the grade pay of Rs.5400/- on 28.02.2009. The

petitioner was granted benefit of 1st ACP w.e.f. on 09.04.2000 in the pay scale of Rs.6500-10500/- and benefit of 2nd ACP w.e.f. 01.09.2008 in the

pay scale of Rs.15600-39100 in the grade pay of Rs.5400/-. The petitioner was granted benefit of 7th PRC w.e.f. 01.01.2016 vide order dated

18.01.2017, however, arrears of 7th PRC has not been paid to the petitioner. The petitioner superannuated from the service on 31.10.2018. The

pensionary benefit of the petitioner has been fixed. Thereafter, by order dated 15.03.2019 the respondent authority directed to recover excess

payment made to the petitioner. Aggrieved with this, the petitioner has preferred this writ petition.

Mr. Saurabh Shekhar, learned counsel for the petitioner assailed the impugned order on the ground that the petitioner retired on 31.10.2018 whereas

the impugned order has been passed on 15.03.2019 contained in Annexure-2 of W.P.(S) No.1718 of 2019. He submits that the impugned order has

been passed after retirement of the petitioner. In that view of the matter, the impugned order cannot sustain in the eye of law. To buttress his

argument, he relied the case of State of Punjab & Others Versus Rafiq Masih (White Washer) & Others reported in (2015) 4 SCC 33 4particularly

para 18 which is quoted hereinbelow:-

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 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.

He submits that in view of direction of Hon’ble Supreme Court particularly at para 18(ii) the recovery order cannot be passed. He submits that

there is direction that there should not be any recovery from the retired employee.

Per contra, learned counsel for the respondents-State submits that inadvertently on account of fixation of 6th pay revision, the basic pay of petitioner

was to be fixed at Rs.22,840/- but inadvertently, the District Account Officer, Dhanbad fixed the basic pay of the petitioner at Rs.23.350/-. He

submits that since it was deducted by the Finance Department, the impugned order has been passed for recovery of excess amount. However, the

case of Rafiq Masih (supra) is not applicable in the facts and circumstances of the present case in view of the fact that in the case of Rafiq Masih

Hon’ble Supreme Court considered the case of Syed Abdul Qadir v. State of Bihar whereby Hon’ble Supreme Court has taken this aspect of

the matter and directed that if the excess payment has been made for a period in excess of five years, it can be corrected. He submits that

Hon’ble Supreme Court has given the direction to deduct the amount if the wrong fixation of pay etc. has been deducted later on.

Mr. Sudarshan Srivastava, learned counsel for respondent no.4-Accountant General submits that wrong fixation was detected by the Finance

Department on 27.12.2018.

Having heard learned counsel for the parties, the Court has gone through the materials on record. It is admitted fact the petitioner retired on

31.10.2018 and the impugned order has been issued on 15.03.2019 i.e. after the date of retirement of the petitioner. The direction issued in the case of

Rafiq Masih (supra) at para 18(ii) clearly speaks that recovery from the retired employee should not be allowed. In the case of Rafiq Masih (supra)

Hon’ble Supreme Court has taken note of the case of Syed Abdul Qadir Versus State of Bihar and discussed at length about the fate of retired

employee. For the sake of convenience, the para 16 of State of Punjab & Others Versus Rafiq Masih (White Washer) & Others is quoted

hereinbelow:-

This Court in Syed Abdul Qadir v. State of Bihar held as follows: (SCC pp. 491-92, para 59)

“59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part

and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out

of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess

payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible.

Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. The learned

counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping

in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no

recovery of the amount that has been paid in excess to the appellant teachers should be made.â€​

(emphasis supplied)

Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment

reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the

conclusions drawn in Syed Abdul Qadir case, that recovery of excess payments, made from the employees who have retired from service, or are

close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a

retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement.

Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite

that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we

are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period

within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated

as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the

recovery is sought to be made after the employee’s retirement, or within one year from the date of his retirement on superannuation.

After interpreting the position of retired employee, the Hon’ble Supreme Court has issued direction in the case of Rafiq Masih (supra) at

paragraph 18. Thus in view of these facts, the case of petitioner is fully covered in view of direction given by the Hon’ble Supreme Court at para

18(ii).

It is well settled proposition of law that a particular judgment needs to be read in the facts and circumstances of that case. A reference in this regard

may be made to the judgment rendered by the Hon'ble Supreme Court in the case of State of Orissa Versus Sudhanshu Sekhar Misra and Others,

reported in AIR 1968 SC 647 in which the Hon'ble Supreme Court has considered Earl of- Halsbury, which is at page 651 of the said judgment quoted

herein below for ready reference:

“On this topic this is what Earl of- Halsbury. LC said in Quinn v. Leathem, 1901 AC 495. “Now before discussing the case of Allen v. Flood,

(1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have

very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of

the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the

case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be

quoted for a proposition @pageSC652 that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a

logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.'' “

As a cumulative effect of the aforesaid facts and judicial pronouncements, the impugned order cannot sustain in the eyes of law. Accordingly, the

impugned order dated 15.03.2019, is quashed. The respondents are directed to release the arrears of salary of the petitioner within a period of twelve

weeks from today from the date of receipt/production of copy of this order.

So far as W.P.(S) No.1719 of 2019 is concerned, prayer in this regard made to release the arrears of salary pertaining to benefit of 3rd MACP. A

counter affidavit in this regard has been filed wherein at para 13 it has been stated that the petitioner has been granted 3rd MACP vide memo no.2590

dated 09.08.2019. The said document has been brought in the counter affidavit as Annexure-D. On perusal of Annexure-D, it transpires that in the

sanction order, the name of petitioner reflects at serial no.44. The benefit of same has not been provided to the petitioner and for that this writ petition

has been filed. In view of Annexure-D which is sanction order with regard to 3rd MACP there is no impediment that benefit of same shall not be

released in favour of the petitioner. Accordingly, the respondent-State is directed to provide the benefit of 3rd MACP in terms of Annexure-D of the

counter affidavit within a period of six weeks from the date of receipt/production of copy of this order.

With the above observations and directions, both these writ petitions are allowed and disposed of.