Rameshwar Mahto vs State of Jharkhand and Others

R.R. Prasad, J.—By the Court.--The petitioner having been appointed on the post of teacher, joined the service on 5.1.1970. In course of

service, he was granted I.A. trained scale and B.A. trained scale in the year 1971 and 1974 respectively. In the year 1987. he was granted first

time bound promotion. While the petitioner was posted as Headmaster in Madhya Vidyalaya, Dharampur, Pakur he got retired on his

superannuation on 31.5.2006. At that time, he was drawing salary in the scale of Rs. 12,250/-. After more than a year of his retirement, when

amount of leave encashment was sanctioned, it could be known to the petitioner that the last pay of the petitioner is being taken as Rs. 11,500/-

instead of Rs. 12,250/-. He immediately made representation in this respect but nothing fruitful came out. Later on, when the petitioner received a

letter dated 5.10.2007 relating to payment of gratuity, he was shocked to learn that a sum of Rs. 94,977/- only payable as gratuity, whereas out of

Rs. 3,50,000/-which was payable to the petitioner as gratuity, a sum of Rs. 2,55,023/- has been withheld without assigning any reason. In that

situation, the petitioner preferred a writ application being W.P.(S) No. 6983 of 2007 wherein following prayers were made:

(i) To quash the letter dated 5.10.2007 issued by the office of the respondent No. 8 with regard to the payment of D.C.R.G. by which Rs.

2,55,000/- and only Rs. 94,977/- payable to the petitioner.

ii) To fix the pension on the basis of last payment received by lie petitioner Rs. 12,250/-.

(iii) To pay the arrears of pension after making proper correction in P.P.O which was issued by the office of the respondent No. 8 in favour of the

petitioner on 5.10.2007.

(iv) To pay entire amount of provident fund to the petitioner with interest.

(v) To pay the arrears of leave encashment on the basis of last payment received by the petitioner.

(vi) To pay the interest at the rate of 12% on the entire retiral dues.

This Court having heard counsel for the parties did find the impugned order to be quite erroneous as by the said order a sum of Rs. 2,55,023/-

was deducted from the gratuity of the petitioner after showing it as Government due without assigning any reason whatsoever that too after

retirement of the petitioner. Consequently, he petitioner was asked to file a representation before the authority, so that it be disposed of in

accordance with law.

Accordingly, representation was filed before the District Superintendent of Education, Pakur, respondent No. 3 and also before the Accountant

General (A and E).

Jharkhand, Ranchi, respondent No. 5. The District Superintendent of Education. Pakur, vide its order dated 5.2.2009 as contained in memo No.

25-45/07-214 (Annexure 3) justified the action of recovery of Rs. 2,55,023/- from the gratuity on the plea that I.A trained scale had wrongly been

fixed in the pay scale of Rs. 1260/- instead of pay scale of Rs.1200/- whereby the petitioner drew a sum of Rs.2,55,023/- in excess and therefore,

upon mistake being corrected, excess amount has been directed to be deducted from the amount of gratuity which is quite legal, in view of the ratio

laid down in a case of Arun Kumar Kashyap Vs. State of Jharkhand and Others, .

Being aggrieved with the said order, this writ application has been filed seeking quashing of the order dated 5.2.2009 (Annexure 3) and also the

order as contained in letter dated 5.10.2007 (Annexure 9) whereby a sum of Rs.2,55,023/- has been recovered from the amount of gratuity and

also for direction to the authority for fixation of pension and also for payment of arrears of pension and gratuity payable upon last pay drawn by the

petitioner, i.e.Rs. 12,250/-.

Learned counsel appearing for the petitioner submits that a sum of Rs.2,55,023/- had been deducted from the amount of the gratuity as the said

amount had been drawn by the petitioner allegedly in excess on account of fixation of pay scale (LA trained) in the scale of Rs.1260/- instead of

Rs.1200/- but such pay scale has been fixed by the authority itself without there being any misrepresentation on the part of the petitioner and,

therefore, the authority is not entitled to recover the said amount after the petitioner got retired from the pensionary benefit, i.e. from the gratuity,

which proposition of law has been laid down by this Court in a case of State of Jharkhand and others v. Padmalochan Kalindi and another, 2007

(4) JCR 451 (F.B), Laxman Prasad Gupta v. The State of Jhakrhand and others. 2007 (4) JLJ R459 (FB) and also in a case of Smt. Normi

Topno Vs. The State of Jharkhand and Others, .

A counter affidavit has been filed on behalf of the respondents wherein a plea has been taken that the State authority is entitled to recover the

amount from the gratuity which the petitioner has drawn in excess wrongly.

Admittedly, without there being any misrepresentation on the part of the petitioner, I.A trained scale was fixed in the pay scale of Rs. 1260/-

instead of Rs. 1200/-as a result of which a sum of Rs.2,55,023/-was drawn which according to respondent-State is in excess but the question is

whether the authority is entitled to recover the said amount from the amount of gratuity without taking recourse of the provision as contained in

Rule 43(b) of the Bihar Pension Rules, 1950? In the cases referred to above particularly in a case of Laxman Prasad Gupta v. The State of

Jharkhand and others (supra), the question which fell for consideration before the Full Bench was :

The question requires to be determined in this case by the Full Court is whether the amount, if any, paid in excess to the employee while in service

due to mistake, fault or any misrepresentation, can be recovered from the employee after retirement from the pension or gratuity of the

Government employee

This Court having taken notice of several cases of this High Court and also of the cases decided by the Honlole Supreme Court as well as the

provision as contained in Rule 43(b) of the Bihar Pension Rules came to following conclusion.

In the light of the absence of any material to show that the excess amount was received by the petitioner on misrepresentation, collusion, fraud or

negligence; the said excess amount cannot be recovered out of the retiral dues, after retirement, without following the procedure contemplated

under Rule 43(b) of the Bihar Pension Rules. In this case the said procedure, which is mandatory has not been followed. Therefore, the action of

the respondents for recovery of the amount from the retiral dues is not valid in law

Similar is the situation here and hence, any recovery of the amount from the amount of gratuity is quite illegal and therefore, the order dated

5.2.2009 (Annexure 3) and also the order dated 5.10.2007 (Annexure 9), whereby a sum of Rs.2,55,023/-was recovered from the amount of

gratuity, are hereby quashed. Consequently, the respondent-authority is directed to pay back the said amount of Rs.2,55,023/- to the petitioner

and also the arrears of pension and gratuity to be paid upon last pay drawn within a period of two months from the date of receipt/production of a

copy of this order.

At the same time, the respondents are also directed to fix the pension on the basis of last pay drawn by the petitioner.

In the result, this writ application stands allowed