Ram Sagar Sahu vs The State of Jharkhand and Others

Aparesh Kumar Singh, J.—Heard learned counsel for the parties.

Petitioner, who was initially appointed in Work Charge Establishment on 8th December, 1973 on the post of Work Supervisor in the Respondent Department of Water Resources, was regularized with effect from 21st March, 1981 on the post of Accounts Clerk. His services were placed under Swarnrekha Multipurpose Project, Chandil Complex, Adityapur, Seraikella Kharsawan later on. He was granted the benefit of 1st Time Bound Promotion vide office order No. 2617 dated 17th July, 1990 with effect from 8th December, 1983 in the scale of Rs. 785-1210/-. Petitioner has reached the age of superannuation on 31st December, 2012. Annexure-2 is an office order dated 14th June, 2011 issued by Chief Engineer, Swarnrekha Multipurpose Project which in effect has cancelled the Time Bound Promotion granted to the petitioner with effect from 8th December, 1983 on the ground that he had passed the departmental exam finally on 8th January, 1998 only. Payments made in excess on that account is said to be recovered from his salary. No recovery admittedly were made during his service period from his salary. The recovery has been finally made from the Leave Encashment Amount totaling Rs. 4,02,480.00 out of which amount of Rs. 1,03,011.00 has been deducted and payments to the tune of Rs. 2,99,469.00 have been made.

Respondents, in their counter affidavit, have justified the recovery based upon the order at Annexure-2 dated 14th June, 2011 though such recovery has been effected after his retirement.

Having taken note of relevant facts as aforesaid, it is trite to observe at the outset that the said recovery is in the teeth of Full Bench judgment rendered by this Court in the case of Dr. Dudh Nath Pandey -Vs.- State of Jharkhand and Ors. reported in 2007 (4) J.C.R. 1 (Jhr.) (F.B.), paragraphs 32 to 35 are being quoted hereunder for better appreciation.

"32: In other words, if there is a power available under any other rule or law to withhold leave encashment, the same can be further governed by executive instructions under Rule 5. Thus, Rule 5 of the Bihar Service Code does not help the respondents nor does it empowers the State to withhold the Leave Encashment. As the circular was not issued under any powers conferred under the Rules, the Executive Instruction, which is a guidelines cannot have the force of law.

It is held in Hindustan Times and Others Vs. State of U.P. and Another, AIR 2003 SC 250 : (2003) 95 CLT 755 : (2003) 96 FLR 758 : (2002) 9 JT 317 : (2003) 1 LLJ 206 : (2003) 1 SCC 591 : (2003) 1 UJ 49 "the expression law within the meaning of Article 300-A would mean a Parliamentary Act or an Act of the State Legislature or statutory order having the force of law. The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order.

In the light of the above ruling, we are to hold that the circular issued by the Finance Department has no force of law and as such would not confer any power to withhold the leave encashment, which is termed as a property.

To sum up the answer for the two questions are as follows:-

(i) Under Rule 43(a) and 43(b) of Bihar Pension Rules, there is no power for the Government to withhold gratuity and pension during the pendency of the departmental proceeding or criminal proceeding. It does not given any power to withhold leave encashment at any stage either prior to the proceeding or after conclusion of the proceeding.

(ii) The Circular, issued by the Finance Department, referring to the withholding of the leave encashment would not apply to the present facts of the case as it has not sanctity of law.

Both the questions are answered accordingly."

Such recovery is also in the teeth of law laid down by Hon''ble Supreme Court in the recent judgment rendered in the case of State of Punjab Vs. Rafiq Masih, (2014) 10 SCJ 700 . Para 12 of the report which contains the summary of the situations wherein the recovery by the employer would be impermissible in law is also quoted hereunder:

"12: 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 employees belonging to Class-III and Class-IV service (or Group ''C'' and Group ''D'' service).

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

(iii) Recovery from 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."

In the wake of settled position in law as referred to hereinabove, recovery of the amount of salary paid on account of grant of 1st Time Bound Promotion vide order passed on 17th July, 1990 itself, now after his retirement cannot be sustained in the eye of law and facts. Therefore, the writ petition is to succeed on that score. Respondents are required to refund the amount so deducted.

Petitioner has also a claim relating to 3rd M.A.C.P. and has stated that he has completed 30 years of service including those in Work Charge Establishment and has been granted benefits of 1st and 2nd A.C.P. vide Annexure-7 to supplementary affidavit dated 30th October, 2006. He has also relied upon resolution of the Finance Department at Annexure-9 dated 5th February, 2007 which permits the reckoning of service in Work Charge Establishment for the purposes of grant of A.C.P. The claim for M.A.C.P. therefore is required to be considered by the respondents on a representation made by the petitioner duly supported with all necessary facts and documents. The respondent No. 4, Chief Engineer, Swarnrekha Project, Chandil Complex, Seraikella Kharsawan shall take a decision on the petitioner''s representation as aforesaid within a period of 12 weeks from the date of receipt/production of a copy of this order along with representation. Needless to say dependent upon such decision, if the claim of 3rd M.A.C.P. is found admissible, the arrears arising thereof be released along with any consequential revision in pensionary benefits thereafter without any unreasonable delay. The refund of the Leave Encashment Amount as directed hereinabove should also be made within the same period

Accordingly, the writ petition is allowed in the manner indicated hereinabove.