{"id":179012,"date":"2009-04-02T00:00:00","date_gmt":"2009-04-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gopal-pathak-vs-jharkhand-state-electricity-bo-on-2-april-2009"},"modified":"2015-10-15T22:41:44","modified_gmt":"2015-10-15T17:11:44","slug":"gopal-pathak-vs-jharkhand-state-electricity-bo-on-2-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gopal-pathak-vs-jharkhand-state-electricity-bo-on-2-april-2009","title":{"rendered":"Gopal Pathak vs Jharkhand State Electricity Bo on 2 April, 2009"},"content":{"rendered":"<div class=\"docsource_main\">Jharkhand High Court<\/div>\n<div class=\"doc_title\">Gopal Pathak vs Jharkhand State Electricity Bo on 2 April, 2009<\/div>\n<pre>                   IN THE HIGH COURT OF JHARKHAND AT RANCHI.\n                              W.P.(S) No. 2288 of 2006\n                                          ...\n               Gopal Pathak                                           ...     Petitioner\n                                                 -V e r s u s-\n               The Jharkhand State Electricity Board &amp; Others         ...     Respondents\n                                                 ...\n        CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.\n                                                 ...\n               For the Petitioner         : - M\/s. Rahul Kumar, Mukesh Kr. Sinha,\n                                              Ajit Kumar &amp; Navin Kumar, Advocates.\n               For the Respondents        : - J.C. to G.A.\n                                                 ...\n               C.A.V on : 31.03.2009                     Pronounced on : 02 .04.2009\n\n\n7\/02.04.2009<\/pre>\n<p>          Petitioner in this writ application has prayed for a direction upon the<br \/>\n        respondents to pay him his retrial benefits and also for an order quashing the office<br \/>\n        order No. 2446 dated 26.07.2005 whereby the pay scale which was earlier granted to<br \/>\n        the petitioner, has been reduced and recovery of certain amount, on the plea of<br \/>\n        excess payments, is sought to be made.\n<\/p>\n<p>        2.     The petitioner was inducted in the service under the respondent on 18.05.1964<br \/>\n        initially as an unskilled Khalasi. Later, in June 1973, he was promoted to the rank of<br \/>\n        Skilled Khalasi. The post which the petitioner had ultimately attained prior to the<br \/>\n        date of his retirement on 31.01.2004 was that of Technical Grade-II S.G. on which post<br \/>\n        he was appointed on 14.03.1996. The pay of the employees of the Board was lastly<br \/>\n        revised with effect from 01.01.1996.\n<\/p>\n<p>               The contention of the petitioner is that on being qualified in the Trade<br \/>\n        Test\/Interview held on 28.11.1985, the petitioner, vide office order No. 917 dated<br \/>\n        14.03.1986 was appointed to the post of Technician Grade-II (Electrical) in the pay<br \/>\n        scale of Rs. 725-18-905-20-1005-22-1115\/- which was the same scale which the<br \/>\n        petitioner was already receiving on his earlier post namely the post of Switch Board<br \/>\n        Operator Grade-I. The petitioner accordingly earned the annual increments of his<br \/>\n        salary thereafter. Prior to his retirement on 31.01.2004, the respondents never raised<br \/>\n        any dispute regarding the fixation of his pay scale. Furthermore, even though by<br \/>\n        letter dated 05.11.2003 the Deputy Director of Personnel, P.T.P.S. intimated the<br \/>\n        petitioner that he would be completing 60 years of age and would retire in the<br \/>\n        afternoon of 31.01.2004 and had directed the petitioner to submit his pension form,<br \/>\n        G.P.F. form etc. together with last pay certificate. Yet no suggestion, even remotely,<br \/>\n        was given to the petitioner that there was any error in the fixation of his pay scale at<br \/>\n<span class=\"hidden_text\">                                           -2-<\/span><\/p>\n<p>any point of time. In response to the aforesaid letter, the petitioner had submitted the<br \/>\npension form and all other relevant documents for fixation and payment of his retrial<br \/>\ndues and 90% of the provisional pension was also fixed and ordered to be paid to the<br \/>\npetitioner. The sanction order for payment of the 90% pension was passed on<br \/>\n24.11.2004 on the basis of the last pay drawn by the petitioner. To the disappointment<br \/>\nof the petitioner, the respondents did not release the other retrial dues and he was<br \/>\ninformed after lapse of more than two years of the date of his retirement, that his pay<br \/>\nscale has been reduced and the pension has been fixed at the reduced scale and<br \/>\nfurthermore, that the respondents have decided to recover a substantial amount from<br \/>\nthe retrial dues of the petitioner to the extent of Rs. 75,982\/- claiming that the same<br \/>\nwas drawn by him by way of excess payment.\n<\/p>\n<p>3.     Learned counsel for the petitioner would argue that such reduction in the pay<br \/>\nscale and recovery of the alleged enhanced excess amount from the retrial benefits of<br \/>\nthe petitioner is totally illegal, arbitrary and not sustainable. Learned counsel argues<br \/>\nthat prior to the decision taken by the respondents for reduction of the pay scale and<br \/>\nfor recovery of the alleged excess amount, no notice was served at all upon the<br \/>\npetitioner nor was any opportunity given to him to explain as to why the reduction<br \/>\nshould not be made and why the purported excess amount should not be recovered.<br \/>\nFurthermore, there is no allegation against the petitioner that for drawing the alleged<br \/>\nexcess salary, the petitioner had practiced any manner of fraud or misrepresentation.<br \/>\nLearned counsel argues that as a matter of fact, the pay fixation of the petitioner was<br \/>\ncorrect and in accordance with the Rules. Had the petitioner been given opportunity<br \/>\nof explaining, he would have demonstrated that there was no anomaly in fixation of<br \/>\nhis pay scale. It is further argued that the respondents would perhaps be entitled to<br \/>\nrecover any excess payment only if they can establish that any excess payment was<br \/>\ndrawn and thereafter, could recover only by resorting to the procedure laid down<br \/>\nunder Rule 43(b) of the Government Pension Rules. It is further pleaded that three<br \/>\nother employees who had joined simultaneously with the petitioner under the<br \/>\nemployment of the respondents and to whom the same scale of pay, as paid to the<br \/>\npetitioner, was made, have been allowed the benefit of such payment whereas the<br \/>\npetitioner has been arbitrarily picked for thrusting upon him a liability which he did<br \/>\nnot incur at all.\n<\/p>\n<p>       In support of his argument, learned counsel for the petitioner would place<br \/>\nreliance upon the Full Bench Judgement of this Court in the case of State of<br \/>\nJharkhand &amp; Ors. Vs. Padmalochan Kalindi, 2008(1) J.C.R. Jhr (FB) 5.\n<\/p>\n<p>4.     Per contra, learned counsel for the respondent, by referring to the stand taken<br \/>\nby the respondent in their counter affidavit, would argue that the grounds advanced<br \/>\nby the petitioner are totally misconceived and this writ application is not<br \/>\n<span class=\"hidden_text\">                                          -3-<\/span><\/p>\n<p>maintainable. Learned counsel would explain that though the petitioner by the<br \/>\nappointment order dated 14.03.1986, was appointed to the post of Technical Grade-II<br \/>\nbut it was certainly not by way of any promotion to the post of Technical Grade-II.<br \/>\nAs such, on the aforesaid date of appointment i.e. on 14.03.1986, the petitioner was<br \/>\nnot entitled to get any promotional benefit as because the post of Technical Grade-II<br \/>\ndoes not come within the line of promotion of the S.B.O. Grade-II. Yet by mistake, he<br \/>\nwas given the promotional benefit with effect from 14.03.1986. This error was<br \/>\ndetected in course of verification when the pay scales as allowed to him in the<br \/>\nrevised scale from 01.01.1986 up to 14.03.2003 was verified and it was detected that<br \/>\nhis pay was wrongly fixed at Rs. 1805\/- on 14.03.1986 and such error continued to<br \/>\nexist with the addition of the annual increments and the revision in the pay scales.<br \/>\nLearned counsel submits that after correction of the error, it was assessed that the<br \/>\npetitioner had drawn an excess amount of Rs. 75,982\/- and the aforesaid amount has<br \/>\ntherefore been deducted from the payable amount of his gratuity. Learned counsel<br \/>\nadds further that after deducting the aforesaid excess payment, the remaining<br \/>\npayable amount of gratuity together with 100% pension fixed on the basis of the<br \/>\nrevised pay scale, assessed at Rs. 7106\/- per month and the payable amount in the<br \/>\nGroup Saving Scheme, Leave Encashment, GPF and arrears of pension have been<br \/>\npaid to him. As regards the claim for commutation of pension, it is stated that since<br \/>\nthe Board has taken a decision not to commute the pension on account of paucity of<br \/>\nfunds, the petitioner is not entitled for commutation of his pension.\n<\/p>\n<p>5.    The undisputed facts which emerge from the rival submissions are that at the<br \/>\ntime when he was selected and appointed to the post of Technician Grade-II<br \/>\n(Electrical), on 14.03.1986, the scale of pay which was fixed for him was the same<br \/>\nwhich he was drawing in the earlier post of Switch Board Operator Grade-I. If this<br \/>\nwas so, then it is not understood as to how can the respondents claim that on his<br \/>\nappointment to the post of Technical Grade-II, the scale of pay which was fixed for<br \/>\nhim was allowed by way of promotional benefit, since admittedly it was the same<br \/>\nscale which was paid to him in his earlier post of Switch Board Operator Grade-I.\n<\/p>\n<p>      Even otherwise, if the respondents had any reason to believe that the scale of<br \/>\npay was wrongly fixed at the time of his appointment to the post of Technical Grade-<br \/>\nII on 14.03.1986, yet, when such purported error was detected and before taking any<br \/>\ndecision either to reduce the pay scale or to deduct the purported excess payment, it<br \/>\nwas incumbent upon the respondents to give notice and to inform the petitioner in<br \/>\norder to enable him to explain. Admittedly, no such opportunity was given to the<br \/>\npetitioner. Furthermore, such decision in respect of reduction of the pay scale and<br \/>\nrecovery of the purported excess amount was made more than two years after the<br \/>\n<span class=\"hidden_text\">                                           -4-<\/span><\/p>\n<p>date of petitioner&#8217;s retirement. Admittedly, there is no allegation that the petitioner,<br \/>\nin availing himself the purported excess salary, had practiced any fraud or<br \/>\nmisrepresentation upon the respondents. Furthermore, no proceeding in terms of the<br \/>\nprovisions of Rule 43(b) of the Jharkhand Pension Rules was initiated against the<br \/>\npetitioner.\n<\/p>\n<p>6.     This issue came up for consideration before the Full Bench of this Court in the<br \/>\ncase of Padmlochan Kalindi (Supra). By referring to several judgement of the<br \/>\nSupreme Court, this Court has held that the recovery of excess paid amounts sought<br \/>\nto be made without recourse of initiating any proceeding under Rule 43(b) of the<br \/>\nPension Rules cannot be sustained.\n<\/p>\n<p>       It appears furthermore, that even though the petitioner has categorically<br \/>\nstated in his rejoinder to the counter affidavit that three other employees whose<br \/>\nnames have been mentioned in para 5 of the rejoinder, had joined the service under<br \/>\nthe respondents along with the petitioner initially as Unskilled Khalasi, and since the<br \/>\nbeginning of their service and till their appointment on the post of Technical Grade-<br \/>\nII, there was no difference whatsoever in the pay scales given to them and the<br \/>\npetitioner, yet, while allowing the other three employees, who have now<br \/>\nsuperannuated from service, to enjoy the benefits of the pay scales fixed for them, the<br \/>\npetitioner&#8217;s pay scale has been arbitrarily reduced. No reply by way of any counter<br \/>\naffidavit to the above declared statement has been made by the respondents. Thus, it<br \/>\nappears that the respondents have sought to take action upon a purported cause of<br \/>\naction which had arisen more than 20 years ago.\n<\/p>\n<p>7.     Learned counsel for the respondents seeks to rely upon a judgement of the<br \/>\nDivision Bench of this Court passed in the case of Rameshwar Prasad Vs. Jharkhand<br \/>\nState Electricity Board vide L.P.A. No. 118 of 2005 and would argue that in that case<br \/>\nalso the facts were identical as in the present case in as much as challenge by the writ<br \/>\npetitioner therein was made against the fixation of pension on the basis of reduced<br \/>\npay scale.\n<\/p>\n<p>8.     The principle of law regarding the right of the employer to recover excess<br \/>\npayments received by the employee, is not disputed. The point of dispute is the<br \/>\nprocedure for recovery. Before proceeding to recover, the employer has to first<br \/>\ndemonstrate that excess payments were received by the employee which the<br \/>\nemployee was not entitled to receive. Secondly, if after having so demonstrated, the<br \/>\nexcess payment is sought to be recovered from the retiral dues of the employee then<br \/>\nresort to the provisions of Rule 43(b) of the Pension Rules has to be made for the<br \/>\npurpose of assessing as to whether the excess payments were made to the employee<br \/>\non account of any fraud, misrepresentation or such other lapses on the part of the<br \/>\n<span class=\"hidden_text\">                                                        -5-<\/span><\/p>\n<p>          employee himself or on the part of some other employee so that after fixing the<br \/>\n          responsibility, the recovery from the appropriate person can be made. Above all,<br \/>\n          before proceeding to take any decision for recovery of any excess payment, prior<br \/>\n          notice has to be issued to the employee to enable him to explain as to why the<br \/>\n          proposed action which, would be detrimental to his interest, should not be taken.\n<\/p>\n<p>                    The judgement in the case of Rameshwar Prasad Vs. Jharkhand State<br \/>\n          Electricity Board (Supra), in my opinion, would not apply to the facts of the present<br \/>\n          case for the reasons that the issue regarding recovery of excess paid amount from the<br \/>\n          retiral dues was not under consideration. In the present case, the respondents have<br \/>\n          not been able to demonstrate as to how, the scale fixed for the petitioner at the time<br \/>\n          of his appointment to the Technical Grade-II was by way of any promotional benefit<br \/>\n          when, admittedly, the scale was the same as the petitioner was drawing in his earlier<br \/>\n          post of Switch Board Operator Grade-I. Secondly, no opportunity was given to the<br \/>\n          petitioner to explain as to why the proposed decision to revise his pay scale by way<br \/>\n          of reduction and to recover the purported excess amount of payment should not be<br \/>\n          made. Furthermore, the recovery is sought to be made more than 20 years after the<br \/>\n          alleged error in fixation of the pay scale and more than two years after the date of the<br \/>\n          petitioner&#8217;s retirement. Such action having been taken even without resorting to the<br \/>\n          procedure laid down under Rule 43(b) of the Pension Rules, the order for recovery<br \/>\n          cannot be sustained.\n<\/p>\n<p>          9.        For the reasons stated above, I find merit in this writ application. Accordingly,<br \/>\n          this writ application is allowed. The impugned order No. 2446 dated 26.07.2005 as<br \/>\n          passed by the Deputy Director of Personnel, P.T.P.S. (Respondent No. 6) is hereby<br \/>\n          quashed. The respondents are directed to fix the pension of the petitioner on the<br \/>\n          basis of the last pay drawn by him and to sanction payment of the monthly pension<br \/>\n          accordingly besides making payment of the arrears of pension accordingly.\n<\/p>\n<p>                    With these observations this writ application is disposed of.<br \/>\n                    Let a copy of this order be given to the learned counsel for the respondent<br \/>\n          State.\n<\/p>\n<p>                                                                                (D.G.R.Patnaik,J.)<br \/>\nBirendra\/N.A.F.R.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Jharkhand High Court Gopal Pathak vs Jharkhand State Electricity Bo on 2 April, 2009 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P.(S) No. 2288 of 2006 &#8230; Gopal Pathak &#8230; Petitioner -V e r s u s- The Jharkhand State Electricity Board &amp; Others &#8230; Respondents &#8230; CORAM: &#8211; HON&#8217;BLE MR. JUSTICE D.G.R. PATNAIK. [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-179012","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Gopal Pathak vs Jharkhand State Electricity Bo on 2 April, 2009 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gopal-pathak-vs-jharkhand-state-electricity-bo-on-2-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gopal Pathak vs Jharkhand State Electricity Bo on 2 April, 2009 - Free Judgements of Supreme Court &amp; 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