Jharkhand High Court

Baneshwar Kumbhkar vs The State Of Jharkhand on 24 February, 2021

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No.2891 of 2015
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Baneshwar Kumbhkar ... ... Petitioner Versus

1. The State of Jharkhand.

2. The Secretary, Labour Employment and Training Department Government of Jharkhand, Ranchi.

3. The Director Employment and Training Department of Labour Employment and Training Government of Jharkhand, Ranchi.

4. The Secretary, Department of Finance, Government of Jharkhand, Ranchi.

5. Principal, Industrial Training Institute Dhanbad.

                                                      ...        ... Respondents
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        CORAM       : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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        For the Petitioner         :Mr. Sanjay Prasad, Adv.
        For the Respondents        : Mr. Rahul Dev, A.C. to ........
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13/24.02.2021

Heard learned counsel for the parties through

V.C.

2. The instant writ application has been preferred

by the petitioner praying therein for quashing the order as

contained in Memo No.628 dated 24.04.2015; whereby the

respondent no.3 has taken a fresh decision pursuant to the

order dated 27.11.2014 passed by this Court in W.P.(S)

No.7647 of 2011 and again justified the recovery from the

pensionary benefits of the petitioner due to wrong

calculation of ACP scale to be correct and genuine.

3. Mr. Sanjay Prasad, learned counsel for the

petitioner draws attention of this Court and submits that

the petitioner had earlier moved before this Court in

W.P.(S) No.7647 of 2011 and the said case was allowed. For

better appreciation of this case, relevant portion of the

order is quoted herein below:-

"In such circumstances, the petitioner is justified in seeking quashing of the impugned order dated 4th August, 2009, Annexure-3 issued by the respondent No.3, Director, Employment and Training, Department of Labour, Ranchi, whereunder the grant of benefit of A.C.P on the said scale i.e.5000-8000/- and 5500-9000/- have been cancelled and the amount paid in excess has been ordered to be recovered. Hence, the impugned order is quashed. However, it is open to the respondent to take a fresh decision in the matter after due notice and opportunity of hearing to the petitioner in accordance with law."

Learned counsel further submits that pursuant

to the aforesaid order, the petitioner was given opportunity

of hearing and fresh order has been passed but again the

respondents have not considered the plea of the petitioner

and sustained the order of recovery which is not

permissible in the eye of law and in the light of judgment

passed in the case of State of Punjab & Ors. Vs. Rafiq

Masih and Ors reported in (2015) 4 SCC 334. He further

submits that the specific grounds of the petitioner that

there was no misrepresentation by the petitioner in getting

the ACP benefit has not been considered and further the

ACP was duly sanctioned by the respondent authorities has

also not been considered. As such, the impugned order is

non-est in the eye of law and the same deserves to be

quashed and set aside.

4. Mr. Rahul Dev, learned counsel for the

respondent-State submits that there is no error in the

impugned order, inasmuch as, there was anomaly in pay

fixation earlier with regard to ACP benefits, however the

same was corrected and finally the excess amount which

was paid to the petitioner was decided to be recovered. He

further referred to a judgment passed in the case of Union

of India and Another Vs. Narendra Singh reported in

(2008) 2 SCC 750 and submits that the Hon'ble Apex

Court has categorically held that the mistake which has

been committed by the respondents can be corrected.

5. Having heard learned counsel for the parties and

after perusing the documents annexed and the averments

made in the respective affidavits, it appears that pursuant

to the order passed by this Court, the petitioner was given

due opportunity. It further transpires from record that the

petitioner was appointed on the post of Lower Division

Clerk on 27.03.1971 and superannuated on 30.11.2008

and during his entire service tenure he was not granted

any promotion, accordingly he was granted the benefits of

both 1st and 2nd ACP by the respondent authorities.

It further transpires that after retirement of the

petitioner it was found that he was granted the pay scale of

higher grade/post than what could have been the exact

next promotional post and accordingly, the pension of the

petitioner was fixed.

It is well settled principle that if a wrong pay

scale has been granted to any employee and excess

payment has been made to him due to wrong fixation of the

pay scale; the same can be rectified. In the case Narendra

Singh (supra) the Hon'ble Apex Court at paragraph 32 has

held as under:-

"32. 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."

In this view of the matter it is clear that the

respondents were justified in correcting their mistake

though after retirement.

6. However, so far as recovery is concerned; now

the matter is no more res-integra that if there is no

misrepresentation or fraud committed by the delinquent

employee in procuring any monetary benefit with regard to

the promotion or ACP; the amount already paid to them

cannot be recovered. As such that part of the impugned

order is not sustainable in the eye of law. In the case of

Rafique Masih (supra) the Hon'ble Apex Court has given a

guideline to this effect. Paragraph 18 of the said judgment

is quoted herein below:-

"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."

7. In view of the aforesaid discussions, the instant

writ application is partly allowed; the impugned order as

contained in Memo No.628 dated 24.04.2015 is, hereby,

quashed only to the extent that the recovery of amount

which has been ordered by the impugned order dated

04.08.2009 is not sustainable in the eye of law and that

part of the order has no legs to stand.

It has been informed that no recovery has been

made till date; as such it is clarified that the respondents

shall not recover any amount from the petitioner which has

already been paid to him earlier.