Chairman-Cum-Managing Director vs Ram Pati Mistry
2021 Latest Caselaw 1865 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
            L.P.A. No.275 of 2020
                     With
              I.A.No.985 of 2021
                     With
              I.A. No.986 of 2021
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1. Chairman-Cum-Managing Director, M/S BCCL, KoylaBhawan, Koyla Nagar, P.O.: KoylaNangar, P.S. Saraidhela, Dist: Dhanbad

2. The Director Personnel, Headquarter, M/S BCCL, KoylaBhawan, Koyla Nagar, P.O.: KoylaNangar, P.S. Saraidhela, Dist: Dhanbad

3. The General Manager, PutkiBalihari Area, M/S BCCL, P.O. & P.S: Putki, Dist: Dhanbad

4. Area Manager(Finance), PutkiBalihari Area, M/S BCCL, P.O. & P.S: Putki, Dist: Dhanbad

5. The Deputy Chief Personnel Manager, PutkiBalihari Area, M/S BCCL, P.O. & P.S: Putki, Dist: Dhanbad

6. Project Officer, Simlabahal Colliery, M/S BCCL, P.O. & P.S: Putki, Dist: Dhanbad

7. Assistant Manager(Finance) Simlabahal Colliery, M/S BCCL, P.O. & P.S: Putki, Dist: Dhanbad

8. Senior Personnel Officer Colliery, Simlabahal Colliery, M/S BCCL, P.O. & P.S: Putki, Dist: Dhanbad .... .... Appellants Versus

Ram Pati Mistry, S/o Late Jageshwar Mistry, R/o Bhuli, Jharkhand More, P.O: Bhuli, P.S: Bank More, Dist: Dhanbad ..... Respondents

CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellants : Mr. Vijay Kant Dubey, Advocate For the Respondent :

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ORAL JUDGMENT 04/Dated: 09.06.2021

This case has been listed on the basis of mentioning being made by

the learned counsel for the appellants for its urgent hearing and thereby

the case has been listed today for hearing.

The matter has been heard with the consent of learned counsel for

the appellants through video conferencing. There is no complaint about

any audio and visual quality.

I.A. No.985 of 2021

Mr. Vijay Kant Dubey, learned counsel appearing for the appellants

does not press this Interlocutory Application for the reason that the

impugned order passed by the learned Single Judge has been complied

with when the matter was taken up in a Contempt proceeding subject to

outcome of this appeal.

Accordingly, Interlocutory Application being I.A.No.985 of 2021 is

dismissed as not pressed.

I.A.No.986 of 2021

This interlocutory application has been preferred under Section 5 of

the Limitation Act for condoning the delay of 491 days in preferring this

Letters Patent Appeal.

Heard.

In view of the submissions made on behalf of the appellants and the

averments made in the interlocutory application, we are of the view that

the appellants were prevented by sufficient cause in preferring the appeal

within the period of limitation.

Accordingly, I.A.No.986 of 2021 is allowed and delay of 491 days in

preferring the appeal is condoned.

L.P.A. No.275 of 2020

The instant intra-court appeal is directed against the order/judgment

dated 26.03.2019 passed by the learned Single Judge of this Court in

W.P.(S) No.6531 of 2016, whereby and whereunder, the decision of the

authority for recovery of an amount of Rs.94,474.24 paisa as contained in

letter dated 27.05.2016 has been quashed with a direction to release the

aforesaid amount in favour of the writ petitioner.

2. The brief facts of the case required to be enumerated which reads

hereunder as:-

3. The writ petitioner was appointed by Bharat Coking Coal Limited, in

short 'BCCL' on 27.07.1980. He superannuated as Senior Overman of

Simlabahal Colliery, PB Area, BCCL w.e.f. 28.02.2015. The writ petitioner

claimed that he has received all retiral benefits except CMPF deduction on

leave encashment amounting to Rs.93,630/-, 30 days wages amounting to

Rs.42,240/- and honorarium allowance of Rs.1000/-.

It is the grievance of the writ petitioner that since the aforesaid

amount was not paid to the writ petitioner, he made an inquiry and came

to know that vide letter dated 27.05.2016, the Assistant Engineer(Finance)

Simlabahal Colliery directed the Project Officer of the said Colliery that

amount of Rs.94,474.24 paisa has to be recovered from the writ petitioner

as the said amount was paid in excess to the entitlement of the writ

petitioner against the charge allowance and because of wrong fixation in

the year 2010 and 2013 respectively.

According to the writ petitioner, the decision of the authority

pertaining to recovery of the aforesaid amount is absolutely bad, since the

same has been taken without issuing any notice and without giving any

opportunity of being heard for making recovery of the said amount from

the post-retiral benefits of the writ petitioner.

It is the further grievance of the writ petitioner that there was no fault

on the part of the writ petitioner nor there was any misrepresentation on

his part in getting his pay fixed or in receiving charge allowance in the year

2010 and 2013 respectively.

According to the writ petitioner that since there were no latches on

his part nor he has misrepresented, the amount could not have been

deducted.

The case of the respondent BCCL is that as per Audit report, the

amount of Rs.74,588.65/- was paid in excess to the writ petitioner on

account of charge allowance in the year 2010. Further, it was detected

that because of wrong fixation in the year 2013, an amount of

Rs.19,885.59/- was paid to the writ petitioner in excess, as such, the total

amount of Rs.94,474.24 paisa was recoverable from the writ petitioner.

As per the respondents, the PF refund in January, 2015 and

February, 2015 comes to Rs.37,246/- and PF refund in leave amount

comes to Rs.56,384/- totaling to Rs.96,360/- and as such, the total amount

of Rs.94,474.24 paisa was thus deducted from the aforesaid amount and

has not been paid to the writ petitioner.

So far as the Honorarium and unpaid wages are concerned, the

respondent denies any liability.

The writ Court after hearing the learned counsel for the parties has

quashed the impugned decision of the authority with a direction to release

the aforesaid amount in favour of the writ petitioner, which is the subject

matter of the instant intra-court appeal.

4. Mr. Vijay Kant Dubey, learned counsel appearing for the appellants

has submitted even accepting that there is no misrepresentation/fraud

committed on the part of the writ petitioner even then since the amount

has been paid excess to its entitlement, the same was required to be

recovered and accordingly, the same has been recovered and as such,

the respondents cannot be said to have committed any error.

He further submits so far as the ground of the writ petitioner that

before making recovery, an opportunity of hearing ought to have been

provided which is also not required in the instant case as because it is well

within the knowledge of the writ petitioner that the said amount has been

paid excess to its entitlement and once it is known to the writ petitioner,

there was no question of following the principle of natural justice.

He has relied upon the judgment rendered by the Hon'ble Apex

Court in the case of Chandi Prasad Uniyal & Ors. Vrs. State of

Uttarkhand & Ors., (2012) 8 SCC 417.

5. This Court has heard the learned counsel for the appellants and

appreciated the materials available on record as also gone across the

finding recorded by the learned Single Judge in the impugned order.

6. This Court before proceeding to delve into the issue on merit, deem

it fit and proper to refer the proposition laid down by the Hon'ble Apex

Court pertaining to question of recovery of excess amount paid to the

concerned employee, which fell for consideration in Shyam Babu Verma

& Ors. Vrs. Union of India & Ors., (1994) 2 SCC 521, in which, it was

held that it shall only be just and proper not to recover any excess amount

already paid to the petitioner due to no fault of theirs.

The Hon'ble Apex Court in Sahib Ram Vrs. State of Haryana &

Ors., 1995 Suppl. (1) SCC 18 has pleased to lay down that in case of no

misrepresentation/concealment of any fact, there will be no recovery from

the retired employee.

However, the Hon'ble Apex Court in Syed Abdul Qadir & Ors. Vrs.

State of Bihar & Ors., (2009) 3 SCC 475, while dealing with the issue of

recovery of excess amount rejected the view, as has been laid down in

Shyam Babu Verma & Ors. Vrs. Union of India & Ors.(supra) and

Sahib Ram Vrs. State of Haryana & Ors.(supra).

The issue about recovery on the ground of misrepresentation has

again been answered in the case of Chandi Prasad Uniyal & Ors. Vrs.

State of Uttarkhand & Ors.(supra) taking a divergent view to the

judgment rendered in Sahib Ram Vrs. State of Haryana & Ors.(supra)

and as such, considering the divergent view on the issue, the matter was

referred before the Larger Bench in Rakesh Kumar Vrs. State of

Haryana & Ors., (2014) 8 SCC 892 (with other analogous cases). The

order of reference reads as under:-

"In view of an apparent difference of views expressed on the one hand in Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] and Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248] ; and on the other hand in Chandi Prasad Uniyal v. State of Uttarakhand [(2012) 8 SCC 417 : (2012) 4 SCC (Civ) 450] , we are of the view that the remaining special leave petitions should be placed before a Bench of three Judges. The Registry is accordingly directed to place the file of the remaining special leave petitions before the Hon'ble the Chief Justice of India for taking instructions for the constitution of a Bench of three Judges, to adjudicate upon the present controversy."

The aforesaid reference was answered by the Bench of three

Judges on 08.07.2014. While disposing of the reference, the three-

Judges Bench recorded the following observations at paragraph 7, which

reads as under:

"7.In our considered view, the observations made by the Court not to recover the excess amount paid to the appellant-therein were in exercise of its extra-ordinary powers under Article 142 of the Constitution of India which vest the power in this Court to pass equitable orders in the ends of justice."

Having recorded the above observations, the reference was

answered at paragraph 12 and the matter was sent back before the

Division Bench for disposal. The relevant paragraphs 12 and 13 of the

judgment read as under:

"12.Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment.

13. In that view of the above, we are of the considered opinion that reference was unnecessary. Therefore, without answering the reference, we send back the matters to the Division Bench for its appropriate disposal."

Thereafter, the issue was decided by the Hon'ble Division Bench

of Hon'ble Apex Court in the case of State of Punjab & Ors Vs. Rafiq

Masih (White Washer) & Ors., (2015) 4 SCC 334, as would be evident

from paragraph 18 of the judgment, which reads as under:

"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."

The judgment rendered by the Hon'ble Apex Court in State of

Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors.,(supra), has

again been interpreted by the Hon'ble Apex Court in High Court of

Punjab & Haryana & Ors. Vrs. Jagdev Singh, (2016) 14 SCC 267,

wherein, it has been laid down that recovery can be made if the employee

concerned has accepted the aforesaid amount after furnishing an

undertaking.

7. We, after going across the judgments rendered by the Hon'ble Apex

Court and after considering the ratio laid by the Hon'ble Apex Cout in

State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors.,

(supra), wherefrom, it is evident that few situations have been provided

wherein the recovery by the employers, would be impermissible mainly

under the situations; (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.

The aforesaid judgment, however subsequently has been

interpreted in the case of High Court of Punjab & Haryana & Ors. Vrs.

Jagdev Singh(supra) wherein, it has been laid down that in case of any

undertaking given by the concerned employee that if subsequently it will

be found on any wrong fixation or excess payment made on any ground

whatsoever, the same will be refunded back in that case, the recovery can

well be made.

8. Learned counsel for the appellant has submitted that the judgment

rendered by the Hon'ble Apex Court in the case of State of Punjab & Ors.

Vrs. Rafiq Masih (White Washer) & Ors.,(supra) will not be applicable in

the facts of this case as because the writ petitioner is not either under

Class III or Class IV, since he is holding the post of Senior Overman.

9. We have proceeded to examine the factual aspect about the

applicability of the judgment rendered by the Hon'ble Apex Court in the

case of State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) &

Ors.,(supra) and examined the pleading in order to scrutinize as to

whether the appellant/respondent has ever taken the plea before the writ

Court or before this Court that the writ petitioner is not under Class III or

Class IV cadre, however, Mr. Dubey, learned counsel for the appellant

fairly submits that no such pleading has been made to that effect.

So far as the issue of furnishing an undertaking is concerned

regarding applicability of the judgment rendered by the Hon'ble Apex

Court in High Court of Punjab & Haryana & Ors. Vrs. Jagdev Singh

(supra), it has also been admitted by Mr. Dubey, learned counsel for the

appellants that no such undertaking has ever been furnished by the writ

petitioner.

It is evident from the statement made by the learned counsel for the

appellants to the effect that no such undertaking for refund of any amount

has been made, therefore, the judgment rendered by the Hon'ble Apex

Court in High Court of Punjab & Haryana & Ors. Vrs. Jagdev

Singh(supra) will not be applicable.

Now, we have proceeded to examine about the applicability of the

judgment rendered by the Hon'ble Apex Court in the case of State of

Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors.(supra)

wherefrom, it is evident from paragraph-18 that recoveries will be

impermissible in few situations i.e., (i) recovery from the employees

belonging to Class III and Class IV, (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 and (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.

Admittedly, the writ petitioner has retired from service as Senior

Overman on 28.02.2015 and after retirement, a decision was taken vide

letter dated 27.05.2016 to recover an amount of Rs.94,474.24 paisa, thus,

even the argument advanced on behalf of the writ petitioner that the he is

not coming under Class-III or Class-IV post then also, there cannot be any

recovery in view of the specific impermissibility of recovery as has been

referred at paragraph-18(ii) of the judgment rendered by the Hon'ble Apex

Court in the case of State of Punjab & Ors. Vrs. Rafiq Masih (White

Washer) & Ors.,(supra) to the effect that recovery from the retired

employees, or the employees who are due to retire within one year, of the

order of recovery. Herein, the writ petitioner has retired on 28.02.2015 and

after retirement the decision for recovery has been taken as on

27.05.2016 and therefore, according to our considered view, the case of

the writ petitioner falls under paragraph-18(ii) of the judgment rendered by

the Hon'ble Apex Court in State of Punjab & Ors. Vrs. Rafiq Masih

(White Washer) & Ors.(supra).

10. We after examining the factual aspect as also the judgment

rendered by the Hon'ble Apex Court has found from the impugned order

that the learned Single Judge has considered the settled position of law

about recovery of the amount, if paid excess to entitlement of the

concerned employee as also considering the fact that before making

recovery, no notice was ever issued within the cardinal principle to be

adopted by the concerned authority since a substantial amount has been

decided to be deducted, therefore, the same being an adverse order, the

principle of natural justice ought to have been observed and hence, the

impugned decision of the authority vide letter dated 27.05.2016 has been

quashed by the learned Single Judge as also the learned Single Judge

has found that there is no misrepresentation on the part of the writ

petitioner, which according to our considered view cannot be said to suffer

from any error.

11. Learned counsel for the appellant has given much emphasis upon

the applicability of the judgment rendered by the Hon'ble Apex Court in

Chandi Prasad Uniyal & Ors. Vrs. State of Uttarkhand & Ors.(supra),

which according to our considered view, the said case has been

considered by the Hon'ble Apex Court in the case of State of Punjab &

Ors. Vrs. Rafiq Masih (White Washer) & Ors.(supra) and the same

being the latest judgment to that of the judgment rendered in the case of

Chandi Prasad Uniyal & Ors. Vrs. State of Uttarkhand & Ors.(supra),

as such, the latest judgment rendered by the Hon'ble Apex Court

considering the judgment rendered in Chandi Prasad Uniyal & Ors. Vrs.

State of Uttarkhand & Ors.(supra), will be applicable.

12. This Court in view of the factual aspects, involved in this case as

also the ratio laid down by the Hon'ble Apex Court rendered in the case of

State of Punjab & Ors. Vrs. Rafiq Masih (White Washer) & Ors.(supra)

as discussed hereinabove, is of the considered view that the order passed

by the learned Single Judge suffers from no infirmity.

13. In the result, the instant appeal fails and is, dismissed.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Rohit/-

.A.F.R.