IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.6515 of 2003
Abhimanyu Kumar Singh .............Petitioner
Versus
The State of Jharkhand & Others .............Respondents
CORAM : HON'BLE MR. JUSTICE AJIT KUMAR SINHA
For the petitioner : Ms. Nehala Sharmin, Advocate
For the respondents : Mr. Sr. S.C.-II
----------------
08/ 02.03.2009
In the instant writ petition the petitioner prays for issuance of
appropriate writ, order or direction against the respondents, especially
against the respondent Nos.2 and 5, who by their order dated 25.4.2003
and 15.9.2003 respectively directed to refund the dues of Rs.16262.60
along with the interest of Rs.52692.82 illegally after the retirement. The
petitioner further prays that the respondents may be directed to fix the
final pension of the petitioner on the basis of the last pay drawn and
release the amount of pension, arrears and current salary with 12%
interest per annum.
The respondent nos. 4 & 5 in their counter affidavit submit as
under :
“That it is further stated and submitted that as per Government direction
the petitioner got the 2nd A.C.P. vide its letter no.863, dated 07.06.2003 issued
by Deputy Secretary, Department of Food Supply and Commerce, Government
of Jharkhand in the pay scale Rs.6500-200-10500/- and the same was
confirmed vide letter no. 540, dated 04.4.2008 issued by Deputy Secretary,
Department of Food Supply and Commerce, Government of Jharkhand, Ranchi.”
This court had specifically directed the respondent no.5 to file its
reply on the specific point as to whether before passing the order of
recovery from pension any show cause notice was issued or not but its
reply has not been filed till date and upon query, it is stated that no such
show cause notice was issued.
The counsel for the petitioner also raises the contention that in
view of the two recent Full Bench Judgments passed by this Hon’ble Court
such recovery was held to be illegal after retirement as reported in 2007
(4) JLJR pg. 451.
In the instant case, the fact remains that it has not been stated nor
contended by the respondents that in absence of any misrepresentation or
fraud on the part of the petitioner herein the question of such recovery is
impermissible under the law as held by the Hon’ble Supreme Court also in
the Judgment reported in JT 2009(1) SC 385 (Syed Abdul Quadir &
Ors. V. State of Bihar & Ors.)
2.
The fact remains that even otherwise after sanction of second A.C.P.
the arrears of the same and/or the revision in pension has not been extended
to the petitioner. The order is on the face of it punitive in nature and involves
civil consequences and thus, it mandatorily requires compliance of the
principle of natural justice and in absence of the same it is to be rendered
illegal and violative of the Article 14 of the Constitution of India.
Even otherwise, the issuance of annexure 1 and 2 to refund the dues
of Rs. 16262.60 along with the interest of Rs.52692.82 on the basis of
wrongly fixing the pay scale at such a belated stage and that also after
retirement is not only illegal, arbitrary but also unsustainable in the eyes of
law. The authorities cannot take benefit of their own fault.
Considering the facts and circumstances of the case, the impugned
order dated 25.4.2003 and 15.9.2003 is hereby quashed and the respondents
are directed to fix the final pension based on the last pay drawn and release
the arrear amount of pension @ 6% per annum within a period of three
months from the date of receipt/production of a copy of this order.
This writ petition is accordingly allowed without any order as to costs.
(Ajit Kumar Sinha,J.)
NKC/sudhir