Rameshwar Prasad Saha vs State Of Jharkhand Through The ...
2021 Latest Caselaw 3022 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               W.P. (S) No. 1430 of 2012
        Rameshwar Prasad Saha.....................         Petitioner(s)
                                  Versus
        1. State of Jharkhand through the Secretary, Water
           Resources Department, Jharkhand, Ranchi
        2. The Commissioner, Kolhan Division, West Singhbhum
        3. The Chief Engineer, Eacha Galudih Complex, Subarnarekha
           Multipurpose Project, Saraikela-Kharsawan
        4. The Executive Engineer, Kharkai Dam Division No.1
           East Singhbhum
        5. The Accountant General (A&E), Jharkhand............Respondent(s)
                                  ......

Coram: Hon'ble Mr. Justice Ananda Sen Through:-Video Conferencing ......

        For the Petitioner         : Dr. H. Waris, Advocate
        For the Respondents        : Mr. Jagdeesh, AC to SC-I

For the Accountant General : Mr. S. Srivastava, Advocate ......

11/23.08.2021 The lawyers have no objection with regard to the proceeding, which has been held through video conferencing today at 10.30 A.M. They have no complaint in respect to the audio and video clarity and quality.

Heard learned counsel for the petitioner and learned counsel for the respondents.

Petitioner, in this application, has challenged the order passed by respondent no. 3 the Chief Engineer, Eacha Galudih Complex, Subarnarekha Multipurpose Project, Saraikela-Kharsawan, whereby his date of ACP has been shifted and his promotion to the Jr. Selection Grade, granted w.e.f. 21.03.1986 and Sr. Selection Grade, granted w.e.f. 21.03.1991, has been withdrawn and an order has been passed to recover the alleged excess amount paid to the petitioner from his retiral benefits.

Learned counsel appearing for the petitioner submits that the petitioner superannuated from service on 31.07.2009 and after his superannuation the impugned office order dated 22.10.2010 was issued withdrawing the aforesaid benefits with a direction to recover the excess amount. He submits that further on 07.04.2011 a direction was given to recover an amount of Rs. 2,24,573/-, which was drawn in excess, as per the respondents. It is the case of the petitioner that all these orders were passed without giving any opportunity to the petitioner. He further submits that there is clear violation of the principle of natural justice and that too, the orders of recovery and cancelling his promotion have been passed much after his superannuation. He further submits that if an opportunity could have been given to him, he could have addressed the issue and could have placed his case before the authority, but this

opportunity was not given to him.

Considering his submission, which was made earlier, on the last date respondent-State were directed to file an affidavit as to whether any opportunity was given to the petitioner or not. The simple query, which was sought for, has not been replied by the respondent, rather an affidavit has been filed on 04.08.2021 explaining the situation. From the aforesaid affidavit, it is also quite clear that no opportunity was given to the petitioner before passing the impugned orders, which takes away the right, which had accrued. Further, the impugned order relates to recovery from the retiral benefits of the petitioner.

Counsel for the respondents-State submits that there is no necessity to issue any show cause notice to the petitioner as the petitioner knew very well that he was being paid access amount. He further submits that when it was well within the knowledge of the petitioner that he is receiving access salary then there is no question of issuing any show cause. He relies upon a judgment of the Hon'ble Supreme Court, passed in the case of "High Court of Punjab and Haryana and Others-versus- Jagdev Singh, reported in (2016) 14 SCC 267" especially Para-11.

It is the case of the petitioner that without issuing any notice to show cause, his benefit has been withdrawn and there is a direction to recover the amount from his retiral benefits. It is an admitted fact that the petitioner superannuated on 31.07.2009 and this impugned letter cancelling the promotion and recovery of amount is dated 22.10.2010, i.e. after superannuation of the petitioner. Further, the pay scales of Jr. Selection Grade and Sr. Selection Grade, which was granted to the petitioner sometime in March, 1986 and 1991, stood cancelled by the impugned order. The respondent-State was directed to file affidavit stating as to whether opportunity of hearing was given to the petitioner or not. Specific reply is not there in the supplementary counter affidavit dated 04.08.2021, rather it can be understood from the said affidavit that no opportunity of hearing was given to the petitioner. The arguments of the counsel appearing for the respondent-State by referring to the judgment of the Hon'ble Supreme Court also suggests that opportunity of hearing was not given to the petitioner as it is the argument of the respondent-State that it is not necessary to give any notice.

Be it noted that the petitioner superannuated from the post of Senior Accounts Clerk. Counsel for the State heavily relies upon Para-11 of the judgment, referred to above. To understand Para-11 of the judgment, it is necessary to read first Para-10 of the aforesaid judgment.

Para-10 of the aforesaid judgment deals with the case of "State of Punjab- versus-Rafiq Masih [(2015) 4 SCC 334]", wherein it has been held that in the following situation, a recovery by the employer would be impermissible in law. The situations have been quoted in Para-10 of the aforesaid judgments, which reads as follows:-

"10. In State of Punjab v. Rafiq Masih this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, it the following situation, a recovery by the employer would be impermissible in law:

(i) Recovery from employees belonging to Cass 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."

Para-11, which is being heavily relied upon by the respondent-

State, deals with only proposition (ii) as enunciated by the Hon'ble Supreme Court in the case of "Rafiq Masih". Further, the aforesaid judgment deals with particular situation of a given case, which was before the Hon'ble Supreme Court, wherein there was an undertaking by the officer to the effect that the excess amount should be refunded. Thus, the Hon'ble Supreme Court held that he is bound by the said undertaking.

In this case, there is nothing on record to suggest that there was any undertaking given by this petitioner. Since there is nothing on record that there was any undertaking nor it is the case of the State that there was an undertaking, the aforesaid judgment of the Hon'ble Supreme Court, in the facts of this case, cannot be made applicable.

Now, the facts remain that no notice was issued to the petitioner while passing the impugned orders of recovery and cancelling his pay scale, which was granted sometime in the year 1986 and 1991. The action of the respondent-State is in violation of the principle of natural justice. A right

which accrued to the petitioner was taken away by virtue of the impugned orders that too, after his superannuation and without affording any opportunity of hearing to the petitioner.

Considering the aforesaid facts, since the impugned order suffers from violation of the principle of natural justice, I am inclined to allow this writ application. Accordingly, this writ application is allowed. The impugned office order contained in letter no. 1440 dated 22.10.2010, the office order contained in memo no. 193 dated 07.04.2011 and the consequential order dated 19.12.2011, contained in memo no. 1656 A, are hereby set aside. The respondent-State is at liberty to proceed after giving an appropriate opportunity of hearing to the petitioner, if they so desire.

Accordingly, this writ application stands allowed.

(Ananda Sen, J) Mukund/-cp.2