Jharkhand High Court
Anant Kumar Sah vs The State Of Jharkhand Through ... on 6 January, 2021
1 W.P. (S) No. 3255 of 2019
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 3255 of 2019
Anant Kumar Sah, aged about 61 years, S/o Late Kedar Nath Sah,
resident of Bada Bazar, P.O., P.S. & District- Deoghar ... Petitioner
-Versus-
1. The State of Jharkhand through Secretary, Department of Agriculture,
Animal Husbandry & Co-operative Society, Govt. of Jharkhand, Nepal
House, P.O. & P.S. Doranda, Dist. Ranchi
2. Registrar, Co-operative Society, Jharkhand, Ranchi, Engineering Hostel,
Dhurwa, P.O. & P.S. Dhurwa, District- Ranchi
3. Jharkhand State Co-operative Bank Ltd., Ranchi through its Chief
Executive Officer, Sahid Chowk, P.O. G.P.O., P.S. Kotwali, District-
Ranchi
4. Regional Manager, Jharkhand State Co-operative Bank Ltd., Dumka,
P.O., P.S. & District- Dumka
5. Branch Manager, Jharkhand State Co-operative Bank Ltd., Deoghar,
P.O., P.S. & District- Deoghar ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Ashok Kumar Jha, Advocate
For the Respondent-State : Mr. Karan Shahdeo, A.C. to S.C.-II
For Respondent Nos. 3, 4 & 5 : Mr. Mrinal Kanti Roy, Advocate
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03/06.01.2021. Heard Mr. Ashok Kumar Jha, learned counsel for the petitioner,
Mr. Karan Shahdeo, learned counsel for the respondent-State and Mr. Mrinal
Kanti Roy, learned counsel for respondent nos. 3, 4 and 5.
2. This writ petition has been heard through Video Conferencing in view
of the guidelines of the High Court taking into account the situation arising
due to COVID-19 pandemic. None of the parties have complained about any
technical snag of audio-video and with their consent this matter has been
heard on merit.
3. The petitioner has preferred this writ petition for quashing the order
dated 18.02.2019, whereby, sum of Rs.4,93,288/- has been directed to be
recovered from the petitioner from the amount of leave encashment due to
the petitioner.
4. The petitioner was employed as an Assistant in Deoghar Central
Co-operative Bank after merger of the bank of the Jharkhand State Co-
operative Bank Ltd. w.e.f. 01.04.2017. The petitioner became an employee
of Jharkhand State Co-operative Bank Ltd. The petitioner retired from the
service on 31.05.2018. The petitioner made a representation on 20.08.2018
to the Chief Executive Officer of the Bank requesting him to ensure payment
of retirement benefits. The petitioner received a letter dated 22.02.2019,
whereby, he was intimated that the amount of post retirement benefits has
been credited in the bank account of the petitioner. The petitioner received
another letter dated 22.02.2019, whereby, he was intimated that the
amount of Rs.7,753/-, Rs.81,054/- and Rs.20,528/- has been deducted from
the post retirement benefits of the petitioner since it was due against the
petitioner. By another letter dated 18.02.2019, the petitioner was informed
that the amount of Rs.7,06,200/- was payable to him under the head of
unutilized leave salary and a sum of Rs.4,93,288/- was deducted from the
amount of excess payment of salary paid to the petitioner for the period
between April, 2012 to May, 2018. On deduction of gratuity, amount came
to Rs.2,12,917/- and along with gratuity amount, a sum of Rs.13,78,142/-
had been credited in the bank account of the petitioner.
5. Mr. Jha, learned counsel appearing for the petitioner submits that the
petitioner has retired on 31.05.2018 and the impugned order of recovery
has been passed on 18.02.2019. He further submits that in view of
retirement of the petitioner, there should not be any recovery in view of the
fact that there is no misrepresentation on the part of the petitioner. He also
submits that in paragraph 24 of the counter affidavit, filed on behalf of
respondent nos. 3, 4 and 5, the respondent-Bank has also admitted that
there is no misrepresentation on behalf of the petitioner. He further submits
that similarly situated persons whose names have been disclosed in
paragraph 17 of the writ petition, no recovery has been made against them,
whereas, the petitioner has been punished for no fault on his part. He also
submits that the case of the petitioner is fully covered in view of the
judgment rendered by the Hon'ble Supreme Court in the case of State of
Punjab v. Rafiq Masih, reported in (2015) 4 SCC 334.
6. 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. Mr. Mrinal Kanti Roy, learned counsel for respondent nos. 3, 4 and 5
submits that after merger of the Bank, it was came to the knowledge of the
Bank that excess amount was paid to the petitioner and that is why the
amount, in question has been recovered. He further submits that the order
of recovery against some other persons have not passed, that will not help
the petitioner.
8. On perusal of the documents annexed with the writ petition, it
transpires that the petitioner retired on 31.05.2018, whereas, the impugned
order has been passed on 18.02.2019. The petitioner retired from the post
of Assistant. In paragraph 24 of the counter affidavit, filed on behalf of
respondent nos. 3, 4 and 5, it has been admitted that there is no
misrepresentation on behalf of the petitioner. The case of the petitioner is
fully covered in view of the judgment rendered by the Hon'ble Supreme
Court in the case of State of Punjab v. Rafiq Masih (supra) particularly
paragraph 18(ii). The other similarly situated persons, as indicated in
paragraph 17 of the writ petition, have not been touched by the
respondent-Bank and this fact has been admitted in the counter affidavit.
9. In view of the aforesaid facts, the writ petition succeeds. Accordingly,
the impugned order dated 18.02.2019, contained in Annexure-5 of the writ
petition is quashed. The respondent-Bank is directed to refund the deducted
amount to the petitioner within a period of twelve weeks from the date of
receipt/production of a copy of this order.
10. Accordingly, the writ petition stands allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/
