IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P.(S) No. 2288 of 2006
...
Gopal Pathak ... Petitioner
-V e r s u s-
The Jharkhand State Electricity Board & Others ... Respondents
...
CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
...
For the Petitioner : - M/s. Rahul Kumar, Mukesh Kr. Sinha,
Ajit Kumar & Navin Kumar, Advocates.
For the Respondents : - J.C. to G.A.
...
C.A.V on : 31.03.2009 Pronounced on : 02 .04.2009
7/02.04.2009
Petitioner in this writ application has prayed for a direction upon the
respondents to pay him his retrial benefits and also for an order quashing the office
order No. 2446 dated 26.07.2005 whereby the pay scale which was earlier granted to
the petitioner, has been reduced and recovery of certain amount, on the plea of
excess payments, is sought to be made.
2. The petitioner was inducted in the service under the respondent on 18.05.1964
initially as an unskilled Khalasi. Later, in June 1973, he was promoted to the rank of
Skilled Khalasi. The post which the petitioner had ultimately attained prior to the
date of his retirement on 31.01.2004 was that of Technical Grade-II S.G. on which post
he was appointed on 14.03.1996. The pay of the employees of the Board was lastly
revised with effect from 01.01.1996.
The contention of the petitioner is that on being qualified in the Trade
Test/Interview held on 28.11.1985, the petitioner, vide office order No. 917 dated
14.03.1986 was appointed to the post of Technician Grade-II (Electrical) in the pay
scale of Rs. 725-18-905-20-1005-22-1115/- which was the same scale which the
petitioner was already receiving on his earlier post namely the post of Switch Board
Operator Grade-I. The petitioner accordingly earned the annual increments of his
salary thereafter. Prior to his retirement on 31.01.2004, the respondents never raised
any dispute regarding the fixation of his pay scale. Furthermore, even though by
letter dated 05.11.2003 the Deputy Director of Personnel, P.T.P.S. intimated the
petitioner that he would be completing 60 years of age and would retire in the
afternoon of 31.01.2004 and had directed the petitioner to submit his pension form,
G.P.F. form etc. together with last pay certificate. Yet no suggestion, even remotely,
was given to the petitioner that there was any error in the fixation of his pay scale at
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any point of time. In response to the aforesaid letter, the petitioner had submitted the
pension form and all other relevant documents for fixation and payment of his retrial
dues and 90% of the provisional pension was also fixed and ordered to be paid to the
petitioner. The sanction order for payment of the 90% pension was passed on
24.11.2004 on the basis of the last pay drawn by the petitioner. To the disappointment
of the petitioner, the respondents did not release the other retrial dues and he was
informed after lapse of more than two years of the date of his retirement, that his pay
scale has been reduced and the pension has been fixed at the reduced scale and
furthermore, that the respondents have decided to recover a substantial amount from
the retrial dues of the petitioner to the extent of Rs. 75,982/- claiming that the same
was drawn by him by way of excess payment.
3. Learned counsel for the petitioner would argue that such reduction in the pay
scale and recovery of the alleged enhanced excess amount from the retrial benefits of
the petitioner is totally illegal, arbitrary and not sustainable. Learned counsel argues
that prior to the decision taken by the respondents for reduction of the pay scale and
for recovery of the alleged excess amount, no notice was served at all upon the
petitioner nor was any opportunity given to him to explain as to why the reduction
should not be made and why the purported excess amount should not be recovered.
Furthermore, there is no allegation against the petitioner that for drawing the alleged
excess salary, the petitioner had practiced any manner of fraud or misrepresentation.
Learned counsel argues that as a matter of fact, the pay fixation of the petitioner was
correct and in accordance with the Rules. Had the petitioner been given opportunity
of explaining, he would have demonstrated that there was no anomaly in fixation of
his pay scale. It is further argued that the respondents would perhaps be entitled to
recover any excess payment only if they can establish that any excess payment was
drawn and thereafter, could recover only by resorting to the procedure laid down
under Rule 43(b) of the Government Pension Rules. It is further pleaded that three
other employees who had joined simultaneously with the petitioner under the
employment of the respondents and to whom the same scale of pay, as paid to the
petitioner, was made, have been allowed the benefit of such payment whereas the
petitioner has been arbitrarily picked for thrusting upon him a liability which he did
not incur at all.
In support of his argument, learned counsel for the petitioner would place
reliance upon the Full Bench Judgement of this Court in the case of State of
Jharkhand & Ors. Vs. Padmalochan Kalindi, 2008(1) J.C.R. Jhr (FB) 5.
4. Per contra, learned counsel for the respondent, by referring to the stand taken
by the respondent in their counter affidavit, would argue that the grounds advanced
by the petitioner are totally misconceived and this writ application is not
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maintainable. Learned counsel would explain that though the petitioner by the
appointment order dated 14.03.1986, was appointed to the post of Technical Grade-II
but it was certainly not by way of any promotion to the post of Technical Grade-II.
As such, on the aforesaid date of appointment i.e. on 14.03.1986, the petitioner was
not entitled to get any promotional benefit as because the post of Technical Grade-II
does not come within the line of promotion of the S.B.O. Grade-II. Yet by mistake, he
was given the promotional benefit with effect from 14.03.1986. This error was
detected in course of verification when the pay scales as allowed to him in the
revised scale from 01.01.1986 up to 14.03.2003 was verified and it was detected that
his pay was wrongly fixed at Rs. 1805/- on 14.03.1986 and such error continued to
exist with the addition of the annual increments and the revision in the pay scales.
Learned counsel submits that after correction of the error, it was assessed that the
petitioner had drawn an excess amount of Rs. 75,982/- and the aforesaid amount has
therefore been deducted from the payable amount of his gratuity. Learned counsel
adds further that after deducting the aforesaid excess payment, the remaining
payable amount of gratuity together with 100% pension fixed on the basis of the
revised pay scale, assessed at Rs. 7106/- per month and the payable amount in the
Group Saving Scheme, Leave Encashment, GPF and arrears of pension have been
paid to him. As regards the claim for commutation of pension, it is stated that since
the Board has taken a decision not to commute the pension on account of paucity of
funds, the petitioner is not entitled for commutation of his pension.
5. The undisputed facts which emerge from the rival submissions are that at the
time when he was selected and appointed to the post of Technician Grade-II
(Electrical), on 14.03.1986, the scale of pay which was fixed for him was the same
which he was drawing in the earlier post of Switch Board Operator Grade-I. If this
was so, then it is not understood as to how can the respondents claim that on his
appointment to the post of Technical Grade-II, the scale of pay which was fixed for
him was allowed by way of promotional benefit, since admittedly it was the same
scale which was paid to him in his earlier post of Switch Board Operator Grade-I.
Even otherwise, if the respondents had any reason to believe that the scale of
pay was wrongly fixed at the time of his appointment to the post of Technical Grade-
II on 14.03.1986, yet, when such purported error was detected and before taking any
decision either to reduce the pay scale or to deduct the purported excess payment, it
was incumbent upon the respondents to give notice and to inform the petitioner in
order to enable him to explain. Admittedly, no such opportunity was given to the
petitioner. Furthermore, such decision in respect of reduction of the pay scale and
recovery of the purported excess amount was made more than two years after the
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date of petitioner’s retirement. Admittedly, there is no allegation that the petitioner,
in availing himself the purported excess salary, had practiced any fraud or
misrepresentation upon the respondents. Furthermore, no proceeding in terms of the
provisions of Rule 43(b) of the Jharkhand Pension Rules was initiated against the
petitioner.
6. This issue came up for consideration before the Full Bench of this Court in the
case of Padmlochan Kalindi (Supra). By referring to several judgement of the
Supreme Court, this Court has held that the recovery of excess paid amounts sought
to be made without recourse of initiating any proceeding under Rule 43(b) of the
Pension Rules cannot be sustained.
It appears furthermore, that even though the petitioner has categorically
stated in his rejoinder to the counter affidavit that three other employees whose
names have been mentioned in para 5 of the rejoinder, had joined the service under
the respondents along with the petitioner initially as Unskilled Khalasi, and since the
beginning of their service and till their appointment on the post of Technical Grade-
II, there was no difference whatsoever in the pay scales given to them and the
petitioner, yet, while allowing the other three employees, who have now
superannuated from service, to enjoy the benefits of the pay scales fixed for them, the
petitioner’s pay scale has been arbitrarily reduced. No reply by way of any counter
affidavit to the above declared statement has been made by the respondents. Thus, it
appears that the respondents have sought to take action upon a purported cause of
action which had arisen more than 20 years ago.
7. Learned counsel for the respondents seeks to rely upon a judgement of the
Division Bench of this Court passed in the case of Rameshwar Prasad Vs. Jharkhand
State Electricity Board vide L.P.A. No. 118 of 2005 and would argue that in that case
also the facts were identical as in the present case in as much as challenge by the writ
petitioner therein was made against the fixation of pension on the basis of reduced
pay scale.
8. The principle of law regarding the right of the employer to recover excess
payments received by the employee, is not disputed. The point of dispute is the
procedure for recovery. Before proceeding to recover, the employer has to first
demonstrate that excess payments were received by the employee which the
employee was not entitled to receive. Secondly, if after having so demonstrated, the
excess payment is sought to be recovered from the retiral dues of the employee then
resort to the provisions of Rule 43(b) of the Pension Rules has to be made for the
purpose of assessing as to whether the excess payments were made to the employee
on account of any fraud, misrepresentation or such other lapses on the part of the
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employee himself or on the part of some other employee so that after fixing the
responsibility, the recovery from the appropriate person can be made. Above all,
before proceeding to take any decision for recovery of any excess payment, prior
notice has to be issued to the employee to enable him to explain as to why the
proposed action which, would be detrimental to his interest, should not be taken.
The judgement in the case of Rameshwar Prasad Vs. Jharkhand State
Electricity Board (Supra), in my opinion, would not apply to the facts of the present
case for the reasons that the issue regarding recovery of excess paid amount from the
retiral dues was not under consideration. In the present case, the respondents have
not been able to demonstrate as to how, the scale fixed for the petitioner at the time
of his appointment to the Technical Grade-II was by way of any promotional benefit
when, admittedly, the scale was the same as the petitioner was drawing in his earlier
post of Switch Board Operator Grade-I. Secondly, no opportunity was given to the
petitioner to explain as to why the proposed decision to revise his pay scale by way
of reduction and to recover the purported excess amount of payment should not be
made. Furthermore, the recovery is sought to be made more than 20 years after the
alleged error in fixation of the pay scale and more than two years after the date of the
petitioner’s retirement. Such action having been taken even without resorting to the
procedure laid down under Rule 43(b) of the Pension Rules, the order for recovery
cannot be sustained.
9. For the reasons stated above, I find merit in this writ application. Accordingly,
this writ application is allowed. The impugned order No. 2446 dated 26.07.2005 as
passed by the Deputy Director of Personnel, P.T.P.S. (Respondent No. 6) is hereby
quashed. The respondents are directed to fix the pension of the petitioner on the
basis of the last pay drawn by him and to sanction payment of the monthly pension
accordingly besides making payment of the arrears of pension accordingly.
With these observations this writ application is disposed of.
Let a copy of this order be given to the learned counsel for the respondent
State.
(D.G.R.Patnaik,J.)
Birendra/N.A.F.R.