State Of Jharkhand And Ors vs Kashi Nath Ganguly And Ors

I.A. No.6683 of 2018

Heard learned counsel for the parties.

Having regard to the averments made in the interlocutory application, the delay of 156 days is hereby condoned.

L.P.A. No.397 of 2018

The present intra-court appeal preferred by the State of Jharkhand is against the order dated 19.01.2018 passed in W.P.(S) No.6217 of 2008 by the

learned Single Judge in exercise of power conferred under Article 226 of the Constitution of India, whereby and whereunder, the decision of the State

authority dated 16.10.2007 (annexure-9 to the writ petition) has been quashed and set aside with a direction upon the appellant-respondent to fix the

pension after re-fixation of his pay scale of Rs.6500-200-10500/- and the entire exercise be completed within a period of 12 weeks from the date of

communication of the order

Before dealing with the legality and propriety of the order passed by the learned Single Judge, it requires to refer certain factual aspect which led

the respondent-writ petitioner to approach this Court invoking the extraordinary jurisdiction conferred under Article 226 of the Constitution of India.

The petitioner was initially appointed on 09.07.1984 as Supervisor (Machinist) at the Bacon Factory, Ranchi. After completion of 10 years of service,

he was granted benefit of up-gradation in pay scale under first time bound promotion vide office order dated 01.12.1994 to the scale of Rs.2600-75-

2900/-.

Subsequently, the petitioner was confirmed at the scale of Rs.5000-150-8000/- by an office order passed on 04.04.2005. Subsequent to the said order,

again an order was passed on 28.05.2005 by the General Manager, Bacon Factory by which, the decision was taken to fix the pay scale of 3rd and

4th grade employee who has completed 12/24 years as regular services also with a decision to fix their pay scale as per column-8 enclosed with chart

appended as annexure-3 to be paid w.e.f. 15.11.2000.

The Finance Department of the State of Jharkhand has come out with a resolution dated 13.10.2005, wherein pay scale of Rs.6500-10,500/- and

Rs.10,000-15,200/- has been approved and in pursuance thereto, the petitioner has made a representation before the concerned respondent requesting

therein to decide his scale of Rs.6500-10,500/- on the basis of the resolution dated 13.10.2005.

The State authorities have taken decision by virtue of order dated 18.10.2006, whereby and whereunder, the scale of the petitioner has been re-fixed

at the scale of Rs.6,500-10,500/- w.e.f. 15.11.2000 in place of Rs.5,500-175-9,000/- and further vide order dated 19.10.2006, the arrears of difference

of salary in consequence of the enhancement of the pay scale, has been paid.

It is the grievance of the writ petitioner that before two months from the due date of retirement of the petitioner, the General Manager-respondent

no.2 issued an order on 16.10.2007, whereby and whereunder, the pay scale of the petitioner has been reduced from 6500-10,500/- to the scale of

Rs.5,500-175-9000/- and further direction to deduct the excess amount paid to him since 15.11.2000, that led the writ petitioner to approach before this

Court to file writ petition.

Inter-alia before passing order dated 16.10.2007, no opportunity of hearing was given and further without disclosing any reason, the impugned decision

has been taken.

It is the further grievance of the petitioner that he has retired from his service w.e.f. 31.01.2008 and immediately he had applied for disbursement

of his G.P.F. amount and the pensionery benefit, save and except, the amount of Rs.1,39,524/-, but nothing has been paid.

Before the writ Court, the State respondent has filed counter affidavit, inter-alia therein the stand was taken that the writ petitioner was appointed

as Supervisor (Machinist) on 16.06.1984 and retired from the post of Supervisor.

The authorities have granted benefit of both up-gradation under the time bound promotion scheme and subsequently benefit of promotion under

Assured Career Promotion Scheme and on the application submitted by the writ petitioner to extend the pay scale of Rs.6500-10,500/- in place of

Rs.5500-9000/- in pursuance to the resolution no.2422 dated 13.10.2005, the same has been extended in his favour but the same has wrongly been

given for the reason that since the petitioner was holding the post of Supervisor (Machinist) which is single cadre post, for which he is entitled to get

the pay scale of Rs.5000-150-8000/- in pursuance to the policy decision as contained in resolution no.5207 dated 14. 08.2002 issued by the Department

of Finance, Govt. of Jharkhand and as such, the authorities have taken decision to re-fix the pay scale of the petitioner to the lower pay scale since the

petitioner has not been entitled to get the pay scale of Rs.6500-10500/- claiming parity to the post of the Junior Engineer which is the subject matter of

the resolution dated 13. 10.2005.

Learned Single Judge, thereafter, has passed an order and taking into consideration the violation of principle of natural justice, has quashed the

order dated 16.10.2007 with a direction upon the respondent to fix the pension after re-fixing of the pay in the pay scale of Rs.6500-200-10500/-, the

said order is under challenge by way of instant intra-court appeal.

Learned counsel appearing for the appellant/respondent has submitted that it is not in dispute that before passing the impugned order dated

16.10.2007 as contained under annexure-9 to the writ petition, an opportunity of hearing has not been provided to the writ petitioner and therefore, the

writ Court while quashing the said order on the ground of violation of principle of natural justice, has not committed an error but the contention has

been raised that the writ Court while directing the State-Respondent to fix the pension after re-fixation in the pay scale of Rs.6500-200-10500/-,

cannot be said to be proper taking into consideration the fact that the claim of the writ petitioner with respect to pay scale of Rs.6500-200-10500/- has

seriously been disputed by taking the stand in the counter affidavit. Further on the ground that there is no adjudication about the said issue regarding

the entitlement of the writ petitioner in the pay scale of Rs.6500-200-10500/- .

In view thereof, submission has been made that if the writ Court has quashed and set aside the order dated 16.10.2007, it ought to have been remitted

before the concerned authority to decide the claim of the writ petitioner for providing an opportunity of hearing instead of issuing writ in the nature of

Mandamus to re-fix the pay scale of Rs.6500-200-10500/-and therefore, the said part of the order, is not sustainable in the eye of Law.

Mrs. M.M Pal, learned senior counsel appearing for the respondent-writ petitioner has vehemently opposed the submission/ground agitated by the

learned counsel appearing for the appellant by taking the stand that the post of Supervisor as also the Junior Engineer have been treated to be at par

and once the authorities have taken decision by virtue of resolution dated 13.10.2005, although the same pertains to Junior Engineer but since the

Supervisor and the Junior Engineer are at par, therefore, the pay scale which has been extended to the employee as Junior Engineer to substantive

capacity since the policy decision dated 13. 10.2005, is also applicable to the petitioner and therefore, the learned Single Judge by taking into

consideration the aforesaid aspect of the matter, has passed an order directing the State-Respondent to re-fix the pension at the scale of Rs.6500-200-

10500/-, therefore, there is no illegality in the said part of the order passed by the learned Single Judge.

She further submits that the petitioner has retired in the Month of January, 2008 but as yet admitted pensionery benefit has not been paid rather the

amount has also been recovered without determination of the claim of the petitioner by providing opportunity of hearing and this aspect of the matter

has also been considered by learned Single Judge while adjudicating the issue.

This Court after having heard the learned counsel for the parties and taking into consideration the factual ground as stated hereinabove, is of the

view that so far as the finding recorded in the order by the learned Single Judge which is under challenge, if the learned Single Judge has taken into

consideration for quashing and setting aside the order dated 16. 10.2007 mainly on the ground of violation of principle of natural justice, the aforesaid

finding cannot be said to be suffer from infirmity. It is for the reason that once the State authority has passed an order on the basis of the policy

decision dated 13.10.2005 extending the pay scale of Rs.6500-200-10500/- and the said order has also given effect to by making payment of arrears of

salary as also the pension has been fixed, therefore, the right has been accrued and once the right has been accrued and in case of any adverse

decision upon the said accrued right, it is the requirement of Law to provide an opportunity of hearing to the person who is going to be adversely

affected by the decision as has also been held by the Hon’ble Apex Court in the case of Maneka Gandhi Vrs. Union of India and Anr., reported in

(1978) 1 SCC 248.

Learned counsel appearing for the appellant on the basis of the said position of Law has not assailed the aforesaid part of the order, whereby and

whereunder, the learned Single Judge has taken into consideration the plea of the writ petitioner about the non-observance of the principle of natural

justice.

The concern of the learned counsel for the appellant is that when the claim of the petitioner of pay scale of Rs.6500-200-10500/- has been disputed in

the counter affidavit by taking the specific stand that the Supervisor and the Junior Engineer cannot be treated at par and therefore, the policy decision

dated 13.10.2005, is not applicable, as such, it was the requirement before directing the State authority to re-fix the pay of the writ petitioner at the pay

scale of Rs.6500-200-10500/-, to adjudicate the issue but having not done so, a serious infirmity has been committed.

This Court after appreciating the aforesaid argument is not in dispute to the aforesaid submission/ground agitated by the learned counsel for the

appellant, reason being that if any order is being passed either by the administrative authority or by quasi-judicial authority or by any Court of Law on

technicality including the ground of violation of principle of natural justice, such person cannot be allowed to take advantage/fruits of order on

technicality rather the judicious course would be to remit the matter before the authority concerned to adjudicate upon the issue after providing an

opportunity of hearing to the sufferers.

This Court has gone across the pleading made in the counter affidavit wherein in several paragraphs which is the part of record, the claim of the

petitioner about applicability of resolution dated 13.10.2005 has seriously been disputed on the ground that the writ petitioner since was holding the post

of Supervisor (Machinist), the same being single post is entitled to get the pay scale of Rs.5000-8000/- in pursuance to the Schedule-I appended to the

resolution no.5207 dated 14.08.2002 and as such, since the very basis of the claim has been disputed by filing the counter affidavit in the writ petition.

It was the requirement of Law to adjudicate upon this issue but the learned Single Judge has not appreciated this aspect of the matter and without any

adjudication by issuing the Writ of Certiorari by quashing the order dated 16.10.2007 as also issued Writ of Mandamus to fix the pension after re-

fixation of his pay in the pay scale of Rs.6500-200-10500/- which cannot be said to be proper.

In view of the entirety of the facts and circumstances of the case and the detailed discussion made hereinabove, we are of the view that the order

passed by the learned Single Judge cannot be approved.

Accordingly, the same is set aside.

So far as decision of recovery of amount is concerned, this Court is of the view that whether in the circumstances if there is no misrepresentation

on the part of the writ petitioner the order of recovery can be said to be justified one that too at the time of retirement?

The law has already been settled in this regard by the Hon'ble Supreme Court in the case of State of Punjab & Ors Vs. Rafiq Masih (White washer)

& Ors reported in (2015) 4 SCC 334 laying down the guideline in prohibiting recovery as has been dealt with at paragraph, 18 which reads hereunder

as:

“18. 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.â€​

The learned counsel for the appellants-State has also agreed that recovery is not justified and as such the said part of the order is not being challenged

in this appeal.

This Court considering the ratio laid down in the State of Punjab & Ors Vs. Rafiq Masih (White washer) & Ors (supra) is of the view that the fact of

this case leading to recovery is falling under the category as because there is no misrepresentation on the part of writ petitioner and he has already

retired in the meanwhile and more particularly the recovery part is not being challenged, as such this Court therefore, hold the recovery as unjustified.

In the result, the amount recovered shall be refunded back to the writ petitioner along with statutory interest within three months from the date of

receipt of copy of this order.

It is equally settled that if any mistake committed by the authority the same cannot be allowed to be perpetuated on the principle that illegality cannot

be allowed to be perpetuated and the moment it came to the notice, the same is to be rectified by following due process i.e. observance of principles

of natural justice, as has been held by Hon'ble Apex Court in the case of State of Orissa and Anr. vs. Mamata Mohanty, reported in (2011) 3 SCC

436 in particular paragraphs 56 and 57, which read hereunder as:

It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even

if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal

right on the petitioner to get the same relief.

This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it

becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in

Hotel Balaji & Ors. v. State of A.P. observed as under:

… 2. … To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and

strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter :

“a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all

mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors"".

Likewise, the Hon'ble Apex Court in the case of Union of India Vs. Narendra Singh as reported in (2008) 2 SCC 75,0 in particular paragraph 32,

which reads hereunder as:

It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we

cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be

corrected by following due process of law. In ICAR v. T.K. Suryanarayan it was held that if erroneous promotion is given by wrongly

interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship

to the employees but a court of law cannot ignore statutory rules.

This Court, on the above position of law, deem it fit and proper to remit the matter before the authority since the order of re-fixation of pay-scale has

been recalled without following the principle of natural justice, as discussed above.

In consequence thereof, the matter is remitted before the competent authority to decide the entitlement of the petitioner about the pay scale of

Rs.6500-200-10500/- by providing an opportunity of hearing to the petitioner.

The decision shall be taken by the concerned authority, in accordance with law, within the period of three months’ from the date of receipt of

copy of the order.

It has been submitted by Mrs. M.M. Pal, learned senior counsel for the respondent-writ petitioner that even though the writ petitioner has retired

w.e.f. 31.01.2008, save and except, meagre amount of Rs.1,39,524/- the amount of G.P.F. along with the statutory interest as also the pensionery

benefit including gratuity and leave encashment has not been paid, hence relief has also been sought for before the writ Court with respect to the

disbursement of the retiral dues also, therefore, appropriate direction may be passed.

This Court after having heard the learned counsel for the parties, is of the view that once the government employee retires, it is the solemn duty of

the appointing authority to make payment of the pensionery benefit including the G.P.F. subject to any legal impediment.

Therefore, this Court is of the view that appropriate direction with respect to the disbursement of the pensionery benefit, is required to be passed.

Accordingly, the appellant-State is directed to disburse the ""admitted"" pensionery benefit including the gratuity.

It goes without saying the disbursement of pensionary benefit at this stage will finally depend upon the outcome of the decision pertaining to re-fixation

of pay-scale as directed to be decided above.

The appellant State is also directed to make payment of G.P.F along with statutory interest as applicable.

Accordingly, this letters patent appeal stands disposed of, in terms indicated above.

In consequence thereof, I.A. Nos.6958 of 2018 and 10885 of 2019 also stand disposed of.