Sunil Kumar Paswan vs Union Of India & Ors
2021 Latest Caselaw 6247 Cal

   53
10.12.2021
Ct. No.23
   (NB)
                          IN THE HIGH COURT AT CALCUTTA
                         CONSTITUTIONAL WRIT JURISDICTION
                                   APPELLATE SIDE

                                    WPA 16898 of 2021

                                    Sunil Kumar Paswan
                                             Vs.
                                    Union of India & Ors.


                                     Mr. Achin Kr. Majumder
                                           ...for the petitioner.

                                     Mr. Ajay Chaubey,
                                     Ms. Shakshi Rathi.
                                             ... for the State.


                        In view of the series of adjournments prayed for by the

             respondent, the prayer for adjournment made on behalf of the

respondent is opposed by the petitioner. The prayer for

adjournment is thus rejected.

The petitioner in an earlier writ petition being WP 3022(W) of

2017 had inter alia challenged a charge sheet issued against him

alleging that the charges are entirely unconnected with his office

duty. In the said writ petition, an interim order was passed on 20 th

April, 2017 staying the disciplinary proceedings initiated in terms

of the said charge sheet as in prayer (e) of the said writ petition.

The said interim order was further extended on 14 th July, 2017 till

disposal of the writ petition or until further order, whichever is

earlier.

The petitioner refers to a show cause notice dated 5 th

August, 2021 appearing at page 22 of the instant writ petition.

Referring to the show cause notice, the petitioner says that

admittedly the petitioner was granted first financial benefits under

MACP Scheme on completion of ten years of regular service

from his date of appointment. However, the petitioner was

declared to be "Not Fit" for getting the said benefit as well as the

annual increment as per the existing rules in view of the fact that

a charge sheet for imposing major penalty is pending as against

the petitioner. This charge sheet as discussed above is the

subject matter of the previous writ petition being WP 3022(W) of

2017, which is pending final adjudication with the interim order

still in subsistence. The petitioner then refers to an order dated

23rd August, 2021 wherein the respondent authority has taken a

decision to stop the first financial benefit of MACP and annual

increment allowed to the petitioner and to recover the excess

amount, which has been drawn by the petitioner on account of

such benefits by deducting money in suitable installments from

the petitioner's regular service.

The petitioner in the instant writ petition has challenged the

show cause notice dated 5th August, 2021 and the order dated

23rd August, 2021 and a subsequent order dated 16 th September,

2021, wherein the details of recovery sought to be made from the

petitioner was provided.

The writ petition requires to be heard on affidavits but at the

same time, the petitioner is required to be given an interim

protection. The petitioner was admittedly conferred with the

benefits of the first financial benefit under the MACP Schemes as

also annual increment. The petitioner subsequently cannot be

held to be "Not Fit" to receive such benefit only because a charge

sheet involving major penalty is pending against the petitioner,

which is again has admittedly been stayed by the interim order

passed in the previous writ petition as referred to hereinabove.

In such circumstances, the recovery of any alleged excess

amount to have been drawn by the petitioner as first financial

benefits under the MACP Scheme and the annual increment from

the regular salary is stayed. The petitioner shall continue to

receive the benefits of the scheme already allowed to him until

the present writ petition is finally heard and decided.

The interim protection is granted to the petitioner as the

petitioner has been able to make out a prima facie case and

balance of convenience and inconvenience lies in favour of the

petitioner and in favour of passing an interim order. Unless an

interim order is made it will affect the petitioner more than the

prejudice likely to be caused to the respondents upon such order

being granted. The petitioner also cited a judgment reported in

(2015) 4 SCC 334 (State of Punjab & Ors. Vs. Rafiq Masih

(White Washer) & Ors.) in order to show the instances when

recovery cannot be made. This judgment, however, according to

me has no application to the facts of the case though there is no

dispute as to the ratio laid down therein.

Let affidavit-in-opposition be filed within six weeks from

date. Reply, if any thereto, may be filed within two weeks

thereafter.

Liberty to mention for inclusion in the list under the

heading 'Hearing' after expiry of twelve weeks.

Urgent photostat certified copy of this order, if applied

for, be given to the parties upon compliance of necessary

formalities.

(Arindam Mukherjee, J.)