Jageshwar Oraon vs The State Of Jharkhand
2022 Latest Caselaw 2793 Jhar

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI

                          W. P. (S) No. 3612 of 2011

              Jageshwar Oraon, son of late Tumba Oraon (retired on
              31.07.2009), resident of Birsa Chowk, Kathar Kooha, P.O. Hinoo,
              P.S. Jagarnathpur, Dist. Ranchi.           ...      ...       Petitioner
                                     Versus
         1. The State of Jharkhand
         2. The Director of Mines and Geology Department, Govt. of
              Jharkhand, Dhurwa, Ranchi.
         3. The Deputy Director of Mines and Geology Deptt., Govt. of
              Jharkhand, Ranchi Anchal, At/P.O./P.O. Doranda, District-Ranchi.
         4. The Accountant General, Office at A.G. More, P.O./P.s. Doranda,
              District - Ranchi.                   ...        ...        Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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10/21.07.2022

1. Heard Mr. Ashish Kumar Verma, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Rahul Saboo, learned counsel appearing on behalf of the respondents along with Mr. Kunal Chandra Suman and Ms. Saman Ahmad, Advocates.

3. This writ petition has been filed for the following reliefs: -

"for the issuance of an appropriate writ(s)/ order (s)/ direction(s) in the nature of certiorari or Mandamus as the cage may be against the Respondents who issued a Memo no. Bhu-sthan (ARa) -Ksheo. 43/2009 dated 8.9.10 (Annexure-5) by which the benefit of A.C.P. given to the petitioner alongwith other have been cancelled on the ground that the petitioner has not passed in departmental Account Test and so the financial benefit given to the petitioner has been withdrawn and thereafter an order has also been passed by the Respondent no. 2 issued vide a letter no. 626 dated 30.3.2011 (Annexure--6) by which the amount of Rs. 399221.00 (Three lakh Ninety Nine thousand two hundred & twenty one) has to be recovered from the amount of pension and the said orders being

illegal are liable to be quashed for the ends of justice as the petitioner has already been retired from his service on 31.7.2009 and both the orders (Annexure-5 & Ann-6) have been panned after a period of more than (12 month one year and (20 months) One year and eight months respectively and as the respondents are ready to recover the amount from his pension amount the same is also not legal, proper and just and both the orders dated 8.9.10 (Annexure. 5) and 30.3.11(Ann-6) are liable to be quashed for the interest of justice."

4. The foundational facts in the present case are not in dispute. The petitioner was appointed as Store Keeper vide Memo No.6272 dated 20.08.1977 (Annexure-1) issued by the Director, Mines and Geology Department, Bihar, Patna and he joined his post on 29.08.1977. The post of the petitioner was subsequently converted into Lipik we.f. 01.04.1980 vide order dated 12.04.1984 (Annexure-2). The petitioner was granted the benefit of 1st and 2nd A.C.P. vide order dated 19.03.2005 read with order dated 18.07.2009 w.e.f. 09.08.1999 and w.e.f. 29.08.2001 respectively. The petitioner was served with a letter dated 12.05.2009 (Annexure-3) that he was going to superannuate w.e.f. 31.07.2009 after serving the department for more than 30 years and thereafter, the petitioner duly superannuated. As per the writ petition, there has been no departmental proceedings against the petitioner.

5. However, services of the petitioner was confirmed along with others vide memo No. 991 dated 08.06.2010 w.e.f. 29.08.1977 (Annexure-4). The provisional pension was sanctioned w.e.f. 01.08.2009 and all the retiral benefits was given to the petitioner.

6. After expiry of more than a year from the date of the retirement, the petitioner was served with an office order dated 08.09.2010 (Annexure-5) cancelling the A.C.Ps. given to the petitioner and such order was issued without any show cause notice to the petitioner. Thereafter, the petitioner was issued a letter No. 626 dated 30.03.2011 (Annexure-6) by which the petitioner was informed that excess amount taken by the petitioner pursuant to A.C.Ps. is recoverable from

the petitioner and the total amount to be recovered was quantified as Rs. 3,99,221/-.

7. It has been brought on record in the counter-affidavit that a show cause contained in letter No. 626 dated 30.03.2011 was issued to the petitioner granting him 3 days' time to respond to the proposal for recovery and it was also mentioned therein that pursuant thereto the documents of the petitioner will be sent to the office of the Accountant General for needful regarding his pension. In response to the 3 days' notice, the petitioner had issued a letter dated 08.04.2011 (Annexure- B series to the counter-affidavit) asking the respondents to deduct the amount from his pension and do the needful. It further appears from the writ petition that, the petitioner had immediately protested regarding the recovery and the action of the respondents, vide Annexure-7 which is dated 12.04.2011.

Arguments of the petitioner

8. Learned counsel for the petitioner has submitted that the order of cancellation of A.C.Ps. vide Annexure-5 dated 08.09.2010 has been issued without any show cause to the petitioner and the same cannot be justified in the eyes of law .

9. The learned counsel has also referred to the judgment passed by the Hon'ble Patna High Court reported in 2005 (2) PLJR 37 (Bishwambhar Prasad Srivastava vs. The State of Bihar & Ors.) and has referred to paragraph-8 to submit that there is a provision for grant of exemption in the matter of passing the departmental examination which is a pre-condition of grant of A.C.P. and such exemption is applicable for those persons who have crossed age of 50 years. The learned counsel submits that as the A.C.Ps. were granted to the petitioner, there was no occasion for grant of exemption. He also submits that the entire career of the petitioner has been spotless and if the petitioner would have been granted an opportunity of hearing prior to issuance of the impugned order dated 08.09.2010 (Annexure-5), he could have made a prayer before the respondents to consider his case for grant of exemption from passing the examination. He submits that

it has been stated in the counter-affidavit that the petitioner has been appearing for the departmental examination, but ultimately he did not qualify. The learned counsel submits that such exemption from passing the departmental examination is as per the circular of the respondents and if the petitioner is entitled for any such exemption, then the same was required to be considered by the respondents and such opportunity has not been granted to the petitioner as no show cause was issued prior to issuance of order dated 08.09.2010 (Annexure-5). The learned counsel has also submitted that so far as the subsequent order of recovery is concerned, the same was the sequel to the order of cancellation of A.C.Ps. As per the writ petition, there has been no departmental proceedings against the petitioner.

10. The learned counsel has also relied upon the judgment passed by this Court in W.P. (S) No. 505/2018 (Ram Lagan Ram & Ors. vs. State of Jharkhand & Ors.) decided on 14.05.2020 and has referred to paragraph 6 thereof to submit that it is not open to the respondents to raise the question of legality and propriety of promotion/ACP/MACP as was granted in favour of the petitioner while he was in service and even if such orders are cancelled, the respondents can neither recover any amount nor can down grade the last pay or revise the pay-scale as well as pension, in absence of any proceeding under Rule 43(b) of Jharkhand Pension Rules. The learned counsel submits that it has been held that any interference in the pay- scale and consequential benefits without adhering to the provisions of law, relevant Pension Rule and without following the cardinal principles of natural justice, is illegal and arbitrary. The learned counsel has also submitted that even if, it is found that the A.C.P. was wrongly granted to the petitioner, then also there cannot be any recovery from the petitioner in view of the law settled by the Hon'ble Supreme court in the case of (State of Punjab vs. Rafiq Masih) reported in (2015) 4 SCC 334 para 18.

Arguments of the respondents

11. Learned counsel appearing on behalf of the respondents, on the other hand, has vehemently opposed the prayer and has submitted that the orders by which the petitioner was granted A.C.Ps. clearly have a stipulation that if the grant of A.C.Ps. is found to be not in accordance with the provision of law, then the same would be subject to cancellation and also recovery. He has also submitted that the petitioner was fully aware of the fact that if the promotional benefit under 1st and 2nd A.C.P. is found to be illegal, the same can not only be reversed, but recovery can also be made. The learned counsel has referred to Annexure-A series and submitted that Memo No. dated 18.07.2009 granting ACP was issued immediately prior to his retirement and there is no illegality or perversity in the impugned action of the respondents.

12. The learned counsel has also referred to the judgment passed by Full Bench of Hon'ble Patna High Court reported in (2000) 4 PLJR 262 (FB) (Maheshwar Prasad Singh vs. The State of Bihar & Others), wherein writ petitions of the year 1990-93 were decided on 19th September, 2000, to submit that it is mandatory for the incumbent to clear the departmental examination to be entitled for grant of A.C.P. The learned counsel has submitted that the said judgment has been followed by this Court in the case of State of Jharkhand & Others vs. Sami-Ur-Rahman & Others reported in 2021 SCC Online Jhar 808 and has referred to paragraph 18 to 20. The learned counsel submits that it is not in dispute that the petitioner did not ever pass the departmental examination and therefore, the cancellation of A.C.Ps. is in accordance with law. However, it is not in dispute that no such show cause was issued to the petitioner prior to cancellation of A.C.P.

13. During the course of hearing, learned counsel for the respondents has also not disputed the fact that the judgments, which he has relied upon, do not deal with the grant of exemption from passing the departmental examination which appears to be permissible pursuant to circular issued by the state.

14. The learned counsel has also relied upon the judgment passed by the Hon'ble Supreme Court reported in (2016) 14 SCC 267 (High

Court of Punjab & Haryana & Others vs. Jagdev Singh) and has referred to paragraph-11 to submit that the judgement passed in the case of (State of Punjab vs. Rafiq Masih) (supra) has been distinguished. Para 10 to 12 of the aforesaid judgement reported in (2016) 14 SCC 267 (supra) is quoted as under for ready reference:-

"10. In State of Punjab & Ors etc. vs. 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, in the following situations, a recovery by the employer would be impermissible in law:

(i) Recovery from employees belonging to Class-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. (emphasis supplied).

11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.

12. For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years."

15. The learned counsel for the respondents submits that the point of recovery in the present case is covered against the petitioner vide para 11 of the aforesaid judgement reported in (2016) 14 SCC 267 (supra).

Findings of this Court

16. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that admittedly the impugned order dated 08.09.2010 (Annexure-5) has been passed without issuing any show cause notice to the petitioner and without granting any opportunity of hearing to the petitioner. It is further not in dispute that the petitioner was granted 1 st and 2nd A.C.P. pursuant to the order dated 18.07.2009, which was passed just prior to his retirement as the petitioner admittedly superannuated from service on 31.07.2009.

17. This Court is of the considered view that the impugned order having been issued without issuing any show cause to the petitioner cannot be sustained in the eyes of law, particularly, in view of the fact that the petitioner was certainly entitled for an opportunity of hearing with regard to the facts and circumstances under which 1 st and 2nd A.C.P. were given to the petitioner.

18. As per the counter-affidavit filed in the present case, the petitioner has been appearing in the departmental examination, but ultimately he could not qualify and in view of the judgment passed by the Hon'ble Patna High Court reported in 2005 (2) PLJR 37 (supra), there is circular dated 09.11.1983 of the Government which was issued by the then State of Bihar and prior to establishment of the State of Jharkhand which deals with the situation when a person after crossing the age of 50 years can be entitled for exemption from passing the departmental examination in the matter of grant of A.C.P. In the present case, since the petitioner was given the benefit of A.C.P., there was no occasion for the petitioner to seek any exemption and admittedly even the services of the petitioner was confirmed only after his retirement. Admittedly, the petitioner was not granted

opportunity of hearing before passing of the impugned order cancelling grant of ACPs to the petitioner. In such circumstances, the impugned ex-parte order dated 08.09.2010, whereby the grant of A.C.Ps. to the petitioner has been cancelled, is hereby set-aside and the matter is remitted back to the respondent No.-2 to pass a reasoned order after granting an opportunity of hearing to the petitioner. The petitioner shall file a detailed representation along with writ records, a copy of this order and any rule/ circular / guide line which the petitioner may choose to rely upon. The reasoned order be passed in accordance with law and after considering the various judgements, circulars, guidelines etc. The following schedule is required to be followed by the parties: -

Time of filing representation. Within 1 month from today.

Reasoned order. Within 2 months from the date of receipt of the representation.

Communication of reasoned order Immediately through speed post to the petitioner. at the address mentioned in the representation itself.

19. So far as the recovery through Annexure-6 dated 30.03.2011 is concerned, it appears that the petitioner had issued a letter dated 08.04.2011 enabling the respondents to recover the amount and immediately thereafter, the petitioner protested vide letter dated 12.04.2011 (Annexure-7). No interim order was ever passed by this court in favour of the petitioner and thus it appears that the amount might have ben recovered. In such circumstances, the amount recovered, if any, is also directed to be subject to the final result of the fresh order to be passed by the respondents pursuant to this order.

20. The respondent No.-2 is also directed to examine, if the petitioner was entitled to any exemption regarding passing the departmental examination as per the circulars issued by the State and if the petitioner is found entitled to any such exemption, then appropriate order to that effect and consequential order should also be passed. In case, the petitioner is not found entitled to any exemption in

passing the departmental examination, the respondents No.-2 is also directed to examine the matter of recovery, if any, in the light of the judgments passed by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) and also the judgment reported in (2016) 14 SCC 267 (supra) which has clarified and distinguished the case of Rafiq Masih.

21. This writ petition is accordingly disposed of with the aforesaid directions and observations.

22. Pending interlocutory application, if any, is closed.

(Anubha Rawat Choudhary, J.) Mukul