Ram Charitra Sah vs Jharkhand State Electricity Board and Others

D.G.R. Patnaik, J.—With consent of the learned Counsel for the parties, this application is taken up for disposal at the stage of admission itself.

The petitioner in this writ petition has prayed for quashing the office orders No. 112 dated 29.08.2007 and No. 120 dated 5.9.2007 (annexures 2 and 4 respectively) issued by the respondent No. 5 whereby the pay of the petitioner has been re-fixed and reduced with effect from 15.1.1977 i.e. two days before his retirement and order has also been issued for recovery of a sum of Rs. 48,633/- from the retiral benefit of the petitioner on the plea that the same was an excess payment made to the petitioner.

The petitioner has challenged the impugned order on the ground that the same was passed without issuing any notice to the petitioner or giving an opportunity of hearing and further more, such amount has been sought to be recovered from the petitioner''s retiral benefits even without initiating any proceeding under Rule 43 B of the Pension Rules and without assigning reasons as to whether the petitioner was responsible for the alleged excess payment or that he had practised fraud or made any misrepresentation before the respondent employer.

Learned Counsel for the petitioner submits that admittedly, after having passed the departmental examination, the petitioner was entitled to three advance increments paid to him. After petitioner''s promotion to the post of Accounts Assistant, his pay was fixed by the respondent authorities themselves and there was no fraud or misrepresentation either in fixation of his pay or in withdrawal of purported excess amount.

Referring to and relying upon the Full Bench judgment of this Court in the case of Smt. Normi Topno v. State of Jharkhand 2007 (4) JLJR 466 learned Counsel submits that this issue has been settled by this Court by holding that without initiating proceedings u/s 43B of the pension rules, no recovery of any amount from the retiral benefit of a retired employee can be made by an employer.

Counter affidavit has been filed on behalf of the respondents. Learned Counsel for the respondents would explain that though after passing the departmental exam the petitioner was entitled to three advance increments, but such payment could not continue after the petitioner was promoted to the post of Accounts Assistant. Yet, the petitioner had continued to receive the advance increments.

From the counter affidavit, it appears that there was no such allegation against the petitioner that he had practised fraud or misrepresentation upon the respondents in receiving the purported excess amount. It also appears that without initiating proceedings u/s 43B of the Pension Rules, or serving any notice upon the petitioner, the respondents took steps to re-fix the petitioner''s pay resulting in reduction of the salary drawn by him. Such action on the part of the respondents is against the principles of natural justice and equity and cannot be sustained.

As rightly pointed by learned Counsel for the petitioner, this issue has been settled by a Full Bench decision of this Court in the case of Normi Topno (supra)

In the light of the above facts and circumstances, both the impugned orders are hereby quashed. The respondents are restrained from making recovery of any amount from the retiral dues of the petitioner pursuant to the impugned order dated 5.9.07 (annexure 4). However, after service of notice and giving an opportunity of hearing, the respondents may proceed afresh to re-fix the salary of the petitioner and thereafter assess the amount of pension payable to him. If the amount has already been recovered it will be refunded to the petitioner within two months from the date of this order. This exercise must be completed within two months from today.

With the above observations and direction, this application is disposed of.

Let a copy of this order be given to the counsel for the respondents.