Radhika Raman Singh vs Jharkhand State Electricity ...
2021 Latest Caselaw 1459 Jhar

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    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  W.P.(S) No. 7441 of 2006
        (An application under Article 226 of the Constitution of India.)

       1.Radhika Raman Singh
       2. Rajendra Prasad
       3.Sailendra Kumar Singh
       4.Udit Narayan Singh.
       5. Kailash Singh.
       6. Ram Kishore Sharma.
       7. Ram Chandra Prasad Singh
       8. Uchit Narayan Singh.
       9. Akshay Kumar Mohanty.
       10. Sheo Shankar Pandey.
       11. Ramjee Bhagat.                     ..... Petitioners
                              Versus
       1.Jharkhand State Electricity Board, through its Chairman,
       Engineering Building, P.O. Dhurwa, P.S.-Jagannathpur,
       District-Ranchi.
       2.The Secretary, Jharkhand State Electricity Board, Project
       Bhawan, P.O. Dhurwa, P.S. Jagannathpur, District-Ranchi.
       3.The Executive Engineer, Electric Supply Division, Chas,
       District-Bokaro.
       4.The Superintending Engineer, Electric Supply Division,
       Chas, District-Bokaro.                .....  Respondents
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For the Petitioners : Mr. A.K.Das, Advocate Ms. Swati Shalini, Advocate For the JUVNL : Mr. M.K.Roy, Advocate

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PRESENT CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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By Court: Heard learned counsel for the parties through

V.C.

2. The instant writ application has been preferred

by the petitioners praying therein for quashing the

respective office orders, all dated 16.12.2005 (Annexure-1

series), whereby order has been passed by the respondent

No.3 for recovery of increments and D.A alleged to have

been drawn in excess due to non-passing of Hindi Noting

and Drafting Examination by these petitioners.

3. At the outset, it is relevant to mention here that

the aforesaid recovery was stayed by this Court, and vide

order dated 03.01.2007 this Court has directed that till

further order no recovery from the petitioners salary in the

name of excess payment on account of non-passing the

examination of Hindi Noting and Drafting Examination

shall be made.

4. Mr. A.K.Das, assisted by Ms. Swati Shalini

learned counsels for the petitioners submit that petitioners

were appointed in the respondent-department and since

their appointments they were given regular increments and

pay scale and also promotion. All of a sudden, the

respondent-authorities in view of an audit objection

directed for deduction of the increments drowned allegedly

in excess on account of late passing of Hindi Noting and

Drafting Examination. The said order of recovery has been

assailed in the instant writ application.

Learned counsel further submits that the

respondent-Board has adopted the Bihar Government

Service (Hindi Examination Regulation) 1968, however, in

spite of adoption; the same was never given effect to nor the

same was circulated among the employees and the

petitioners were regularly given increment and promotion

without any misrepresentation or fraud on their part.

Learned counsel further submits that the petitioners

subsequently passed their Hindi Noting and Drafting

Examination, as such the action of the respondent is non-

est and arbitrary.

Learned counsel lastly submits that the order

for recovery has also been passed behind back of these

petitioners, inasmuch as, no notice was given before

passing the aforesaid order.

5. In order to buttress his argument learned counsel

referred to the judgment passed in the case of Bihar State

Electricity Board and Another Vs. Bijay Bhadur and

Another reported in (2000) 10 SCC 99, wherein the issue

that since payment has been made without any

representation or a misrepresentation, the respondent-

Board could not possibly be granted any liberty to deduct

or recover the excess amount paid by way of increment at

an earlier point of time. Para 9 and 10 of the said judgment

is quoted herein below:-

"9. Further, an analysis of the factual score at this juncture goes to show that the respondents appointed in the year 1966 were allowed to have due increments in terms of the service conditions and salary structure and were also granted promotions in due course of service and have been asked after an expiry of about 14-15 years to replenish the Board exchequer from out of the employees' salaries which were paid to them since the year 1979. It is on this score the High Court observed

that as both the petitioners have passed the examination though in the year 1993, their entitlement for relief cannot be doubted in any way. The High Court has also relied upon the decision of this Court in the case of Sahib Ram v. State of Haryana wherein this Court in para 5 of the Report observed: (SCC p. 20) "5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale.

However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."

10. The High Court also relied on the unreported decision of the learned Single Judge in the case of Saheed Kumar Banerjee v. Bihar SEB. We do record our concurrence with the observations of this Court in Sahib Ram case and come to a conclusion that since payments have been made without any representation or a misrepresentation, the appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The act or acts on the part of the appellant Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice. The concept of fairness has been given a

go-by. As such the actions initiated for recovery cannot be sustained under any circumstances. This order however be restricted to the facts of the present writ petitioners. It is clarified that Regulation 8 will operate on its own and the Board will be at liberty to take appropriate steps in accordance with law except however in the case or cases which has/have attained finality."

6. Learned counsel further relied upon the judgment

passed by this Court on a similar issue in the case of Nand

Kishore Pandey Vs. Jharkhand State Electricity Board

& Ors reported in (2006) 4 JLJR 558 (HC), wherein in

para 10 and 11 it has been held as under:-

"10. In the instant case, as noticed above, the petitioner was appointed as temporary Work Sarkar in 1968 in the Work charge establishment. Thereafter, he was appointed as a provisional Junior Store-keeper in 1970. Subsequently his services were confirmed and he has been continuing as junior store keeper selection grade). It appears that in 1979 the respondents-Board vide its resolution adopted the Bihar State Services (Hindi Examination) Rules 1968 which was published in the official gazette. However, this resolution was circulated only in 1993 vide letter No. 31 dated 8.2.93 by which all the Chief Engineer, General Managers, Finance Controllers, Joint Secretaries and various other authorities were intimated regarding the details of the employees who were required to pass Hindi Noting and Drafting Examination. The petitioner immediately appeared in the Hindi Noting and Drafting Examination conducted by the Board and passed the said examination in 1994. It was only in

1992-94 employees of the Board were informed by a Circular that those employees who will not pass Hindi Noting and Drafting Examination shall not get increments.

11. In our view therefore, the principle laid down by the Supreme Court in BijayBahadurs case (Supra) shall apply in the present case. Consequently, it would be totally unfair on the part of the Board if any increment paid before 1994 is directed to be recovered from the petitioners."

7. Learned counsel reiterated his argument by

submitting that the petitioners have later on passed the

Hindi Noting and Drafting Examination and further for

getting the increments they have never misrepresented or

filed any representation whatsoever, as such as per the law

laid down by the Hon'ble Apex Court in several matters; the

recovery of the amount is not permissible in the eye of law.

He further submits that all the petitioners have now retired.

8. Mr. M.K.Roy, learned counsel for the respondent-

JUVNL submits that the increments were granted against

the provision of law and the petitioners cannot take shelter

that the said regulation with regard to Hindi examination

was not circulated to them. He further relied upon the

judgment passed in the case of Chandi Prasad Uniyal

and Others Vs. State of Uttarakhand and Other,

reported in (2012) 8 SCC 417 in which the Hon'ble Apex

Court has held that the excess payment which has been

made was a public money and is often described as

taxpayers money which belongs neither to the officers who

have effected overpayment nor the employees and the

question of fraud or misrepresentation should not come on

the way of recovery of those money. Para 14 of the aforesaid

judgment is quoted herein below:-

"14. We are concerned with the excess payment of public money which is often described as "taxpayers' money" which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment."

Relying upon the aforesaid judgment, Mr. Roy

submits that the order of recovery has a legal force and

should not be quashed.

Mr. Roy concluded his argument by submitting that

the order was passed when the petitioners were in service

and as such the ratio laid down in the cases relied upon by

the petitioners is not applicable in the instant case.

9. Having heard learned counsel for the parties and

after going through the documents available on record and

the averments made in the respective affidavits, it appears

that the impugned orders (Annexure-1 series) has been

issued against these petitioners for recovery of amount

given in the impugned letters. It further transpires that no

notice, whatsoever, was given to them prior to issuance of

the aforesaid order of recovery.

10. At the outset, I would like to discuss the

judgment relied upon by the respondents, inasmuch as, in

the said judgment of Chandi Prasad Uniyal (Supra) the

Hon'ble Apex Court has made an exception in paragraph 15

which is quoted herein below:-

"15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J. Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered."

11. Thus, it is necessary to go through the

judgment rendered in the case of Syed Abdul Qadir and

Others Vs. State of Bihar & Others, reported in (2009) 3

SCC 475.

"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."

12. After going through the aforesaid judgment

passed in the case of Syed Adbul Qadir (Supra) it appears

that the Hon'ble Apex Court after referring its earlier

judgment passed in the case of Shyam Babu Verma and

Other Vs. Union of India and Others reported (1994) (2)

SCC 521 and the case of Col. B.J. Akkara (Retd). Vs.

Government of India & Others reported in (2006) 11 SCC

709 has restrained the department from recovery of excess

amount paid earlier.

In view of the aforesaid judgment passed in the

case of Sayed Adbul Qadir (Supra) and looking to the facts

of the instant case, it appears that the letters impugned

deserves to be quashed and set aside, inasmuch as, the

petitioners never made any misrepresentation/

representation or fraud on their part and the excess

payment was made as a result of wrong interpretation of

the rule that was applicable to them and the petitioners

subsequently passed their Hindi Noting and Drafting

Examination.

13. Further, in the case of Nand Kishore Pandey

(Supra), whereby this Court in the similar facts and

circumstances held that the recovery made by the

respondent-Board is non-est in the eye of law and held that

it would be totally unfair on the part of Board if any

increment paid before 1994 is directed to be recovered from

the petitioners. It has been informed by the learned counsel

for the rival parties that the judgment passed in the case of

Nand Kishore Pandey (Supra) has attained finality.

14. In view of the aforesaid discussions and judicial

pronouncements, I hold that the impugned orders/letters

all dated 16.12.2005 annexed as Annexure-1 series in case

of respective petitioners; are non-est in the eye of law and

the same are hereby, quashed and set aside.

It goes without saying that from the order

passed by this Court; it appears that no recovery was to be

made. However, if at all any recovery has been made with

respect to any of the petitioners; same shall be refunded

within a period of 8 weeks from the date of

receipt/production of copy of this order.

15. With the aforesaid terms, the instant writ

application stands allowed. Pending I.A. also stands

disposed of.

(Deepak Roshan, J.)

Jharkhand High Court, Ranchi Dated 23rd March, 2021 Amardeep/A.F.R