Ram Kishore Sahu vs The State of Jharkhand and Others

D.N. Patel, J.—The present petition has been preferred mainly against the order passed by respondent No. 5 dated 10th December, 2002

at Annexure 4 to the memo of the petition whereby it has been held by respondent No. 5 that promotion which was given to the present petitioner

was wrong and the petitioner was not entitled for salary of the Head Master on the basis of report given by Accountant General Office, Patna,

Bihar.

I have heard learned Counsel for the petitioner, who has submitted that no inquiry, no show-cause notice and no opportunity of being heard was

given to the petitioner before passing the order at Annexure 4 dated 10th December, 2002. At least an opportunity of being heard would have

been given to the petitioner. Initially he was given B.A. Trained Scale from 1975 and, thereafter, he was promoted as Head Master, which was

true, correct, legal and in consonance with law. It is also submitted by learned Counsel for the petitioner that never any direction was given by

Accountant General Office, Patna, Bihar that pay scale given to the petitioner on the post of Head Master was illegal and, therefore, before coming

to the conclusion by respondent No. 5 vide order dated 10th December, 2002 that petitioner was not entitled for the salary for the post of Head

Master, at least a notice and opportunity of being heard ought to have been given to the petitioner. The basis which is referred at Annexure 4 is a

report given by Accountant General Office, Patna, Bihar especially P.P.O. No. 001666 is of no help to the petitioner. Looking to Annexure 5 to

the memo of the petition also, it appears that Accountant General Office, Patna, Bihar has fixed the pension of the petitioner as per their own

calculation and they have returned the service book of the present petitioner. Even looking to Annexure 5, never any direction was given by

Accountant General Office and, therefore, the benefit which was already given or accrued in favour of the petitioner can not be taken away, ex-

parte and without giving any opportunity of being heard to the petitioner. After the retirement of the present petitioner, impugned order has been

passed.

I have heard learned Counsel for the respondent-State, who has submitted that there in no illegality in passing the order at Annexure 4 by

respondent No. 5. Looking to the report given by Accountant General Office Patna, Bihar especially P.P.O. No. 001666, the impugned order has

been passed to the effect that petitioner was not entitled for the salary for the post of Head Master and, therefore the order at Annexure 4 has

been passed. Petitioner can not be allowed to receive a wrongly given benefit and, therefore, petitioner ought to return the amount, which was

wrongly taken by him.

I have heard learned Counsel appearing on behalf of respondent Nos. 2 and 3, who has submitted that respondent Nos. 2 and 3 have fixed the

pension of the present petitioner as he retired on 30th September, 2002 and, thereafter service book was returned. There was some discrepancy

in the pay scale, but, never a direction was given to the concerned departments of the respondent-State that without holding any inquiry and

without giving any opportunity of being heard to the petitioner, the amount should be deducted. Even looking to the order at Annexure 5 to the

memo of the petition, never such direction was given to the department of the State to pass an order at Annexure 4 to the memo of the petition.

Having heard learned Counsels for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the order

passed by respondent No. 5 dated 10th December, 2002 at Annexure 4 to the memo of the petition mainly for the following facts and reasons:

(i) It appears that the present petitioner was appointed on the post of teacher in the year, 1964 in Rajkiyakrit Middle School Chadri, Ranchi.

Initially he was given B.A. Trained Scale from 1975 and, thereafter, he was promoted as Head Master. Thus, never any objection was raised that

petitioner was wrongly given the post and pay scale of the Head Master.

(ii) It also appears that after retirement of the petitioner, impugned order at Annexure 4 has been passed by respondent No. 5 dated 10th

December, 2002. Petitioner retired on 30th September, 2002, thereafter, an ex-parte order has been passed by respondent No. 5 on 10th

December, 2002 to the effect that petitioner was not entitled for the salary of the Head Master and he should deposit the salary as stated in the

order at Annexure 4. Never any show-cause notice nor any opportunity of being heard was given to the petitioner before passing the order at

Annexure 4.

(iii) It also appears that the impugned order at Annexure 4 passed on the basis of some report given by Accountant General Office, Patna Bihar

especially P.P.O. No. 001666. Never any notice was given to the petitioner of this Pension Payment Order nor respondents could point out any

direction, which was given by Accountant General Office, Patna, Bihar that straightway the amount received by the petitioner must be ordered to

be deposited by the petitioner. There can not be such direction from the Accountant General Office. Looking to Annexure 5 also never such

direction has been given by the Accountant General Office, Patna, Bihar for deduction of the amount without holding any inquiry and without giving

any opportunity of being heard to the petitioner. Thus, there is gross violation of principles of natural justice before passing the order at Annexure 4

from the retirement benefits of the petitioner. Sizeable amount is ordered to be deducted. Opportunity of being heard must be given to the

petitioner, whenever any accrued right is being taken away, despite the report given by Accountant General Office. In the facts of the present case,

there is no such report of giving direction to the respondent-State department that they must deduct the amount from the petitioner''s retirement

benefits without holding any inquiry. Bare minimum requirement is to follow the principles of natural justice, before passing the impugned order at

Annexure 4.

(iv) In view of the Letters Patent Appeal bearing L.P.A. No. 118 of 2005 dated 26th February, 2009 also, inquiry ought to be held by the

concerned respondent authorities before deducting the amount from the petitioner''s retirement benefits. Paragraph 6 of the aforesaid judgment

reads as under:

The judgment of the Division Bench in the case of ""Smt. Girish Kumari Prasad"" (Supra) was considered by a Full Bench in the case of Smt. Normi

Topno v. State of Jharkhand reported in 2007 (4) JLJR 466. The facts of the said case were that Smt. Normi Topno retired from service as

A.N.M. from Primary Health Centre on 36/09/1999. Her pension paper was sent to Accountant General. On scrutiny, it was found that she was

wrongly granted time bound promotion and, therefore, the Accountant General returned the paper for clarification. The Department scrutinized the

papers and found that she was wrongly given time bound promotion and, therefore, the pension papers were forwarded to the Accountant General

for recovery of Rs. 50,456/-, the excess amount paid to her from her pension/gratuity. This was challenged by her by filing a writ petition, which

was dismissed by the learned Single Judge holding that the recovery was justified in view of the Division Bench''s judgment in the case of State of

Jharkhand v. Smt. Girish Kumari Prasad reported in 2004(2) JLJR 426 and in the case of Ram Chandra Singh v. State of Jharkhand and Ors.

reported in 2005 (2) JLJR 705. The order of the Single Judge was challenged in the appeal, which was referred to larger Bench. The Full Bench

held as follows:

After retirement, there is no relationship of employer and employee and as such no recovery can be made from the retiral 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

canceling 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.

The Full Bench further held that the order for recovery of the amount from the retirement benefit was illegal and, therefore, the same was quashed.

(Emphasis supplied)

As a cumulative effect of the aforesaid facts, reasons and judicial pronouncement, I hereby quash and set aside the order passed by respondent

No. 5 dated 10th December, 2002 Annexure 4 to the memo of the present petition as there is gross violation of principles of natural justice.

The petition is allowed to the aforesaid extent with no order as to costs.