IN THE HIGH COURT OF JHARKHAND AT RANCHI [CASE NUMBER] with [CASE NUMBER] with [CASE NUMBER] 1. The [ENTITY], through the Secretary, Industries Department, Government of Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi 2. The [ENTITY] 3. The [ENTITY] 4. The [ENTITY] Appellants Versus [ENTITY], son of Late Hussaini Sah, resident of Purnima Kuti, behind Ravi Steel. Harihar Colony, Pandra, P.O. Kamre, P.S. sukhdeonagar, District Ranchi Respondent/Petitioner
CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE [ENTITY]
For the Appellants: M/s [ENTITY] For the Respondents: M/s [ENTITY] th 06/Dated 11 August, 2017 Per [ENTITY], J. 1. Notice upon respondent.
2. Counsel Mr. [ENTITY] waives Notice upon the respondent.
3. Present interlocutory application has been preferred under [SECTION] of the [ACT], for condonation of delay of 104 days in preferring this Letters Patent Appeal.
4. Having heard counsel appearing for the both sides and looking to the reasons stated in the interlocutory application, it appears that there are reasonable grounds for condonation of delay.
5. In view of these facts, we hereby, condone the delay in preferring this Letters Patent Appeal. Accordingly, [CASE NUMBER] is allowed and disposed of.
6. This Letters Patent Appeal has been preferred by the original respondent. The present respondent is the original petitioner who has preferred [CASE NUMBER] challenging the order passed by the State on 17th December, 2012, whereby the appointment of respondent on the post of Steno-Typist was declared as illegal and the respondent was treated as Typist. There are consequential order also dated 24th December, 2012 for the recovery of the excess amount paid as salary for the post of Steno Typist.
7. Having heard counsel appearing for both sides and looking to the facts and circumstances of the case, it appears that the respondent was appointed on 9th July, 1974 on the post of Typist. He joined duty on 12th July, 1974.
8. Thereafter, he was appointed on the post of Stenographer on 13th December, 1978. This was a fresh appointment as submitted by counsel appearing for the respondent (original petitioner).
9. It appears that from 1978 onwards for several decades never any objection was raised by the socalled vigilant appellants.
10. Respondent was working diligently, honestly, sincerely and to the satisfaction of the appellants. Never any objection was raised by the appellants for wrongful appointment of the respondent on the post of Stenographer.
11. Now, when the respondent (original petitioner) was on the verge of retirement in the year 2014, in the month of December, 2012, abruptly, without holding any enquiry and without giving any effective opportunity of being heard to the respondent, appellants declared that the respondent (original petitioner) was wrongly appointed as a Stenographer in the year 1978.
This is not permissible in the eye of law. When any employee has worked as a Stenographer for several decades and never any objection was raised by the appellants for approximately three decades, without holding any enquiry his appointment cannot be suo-motu declared by the appellant as illegal.
This aspect of the matter was properly appreciated by the learned Single Judge while deciding [CASE NUMBER] vide judgment and order dated 29th June, 2016.
12. So far as recovery of the excess amount is concerned, the said order dated 24th December, 2012, which is a consequential order of the order dated 17th December, 2012 is also de-hors the several directions given by the Hon'ble Supreme Court, more particularly in following decisions.
13. It has been held by Hon'ble the Supreme Court in the case of [PRECEDENT] as under:
"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."
(Emphasis supplied)
14. It has been held by Hon'ble the Supreme Court in case of [PRECEDENT] as under:
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."
(Emphasis supplied)
15. It has been held by Hon'ble the Supreme Court in case of Col. B.J. Akkar (Retd.) Vs. Government of India reported in (2006) 11 SCC 709 as under:
"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/ understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide [PRECEDENT], [PRECEDENT], [PRECEDENT] [PRECEDENT]):
(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."
(Emphasis supplied)
16. It has been held by Hon'ble the Supreme Court in case of [PRECEDENT] as under:
"16. Moreover, for the sake of argument, even if we consider that the respondent had fraudulently entered another date of birth in his service book, as had been alleged, it should have come to the notice of the authorities during his course of service, and not after he had attained the age of superannuation after the expiry of the date mentioned in the service book which was based on the affidavit of the respondent. To the contrary, none of the officials responsible had noticed this during his service period, even during his time of promotions when the service book was required to be inspected by the officials. Therefore, it clearly points out to the gross negligence and lapses on the part of the authorities concerned and in our view, the respondent cannot be held responsible to work beyond his date of birth as mentioned in the matriculation certificate when admittedly in the service book after the affidavit, some other date of birth was also evident.
19. It is not needed for this Court to verify the veracity of the statements made by the parties. If at all the respondent entered the second date of birth at a subsequent period of time, the authorities concerned should have detected it and there should have been a detailed enquiry to determine whether the respondent was responsible for the same. It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee.
23. Without going into the question whether the appellant was justified after completion of two years from the actual date of retirement to deduct two years' salary and other emoluments paid to the respondent, we may say that since the respondent had worked during that period without raising any objection from the side of the appellant and the appellant had got works done by the respondent, we do not think that it was proper at this stage to allow deduction from his retiral benefits, the amount received by him as salary, after his actual date of retirement.
24. Considering the fact that there was no allegation of misrepresentation or fraud, which could be attributed to the respondent and considering the fact that the appellant had allowed the respondent to work and got works done by him and paid salary, it would be unfair at this stage to deduct the said amount of salary paid to him. Accordingly, we are in agreement with the Division Bench decision that since the respondent was allowed to work and was paid salary for his work during the period of two years after his actual date of retirement without raising any objection whatsoever, no deduction could be made for that period from the retiral dues of the respondent."
(Emphasis supplied)
17. It has been held by Hon'ble the Supreme Court in Case of [PRECEDENT] as under:
"57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess."
(Emphasis supplied)
18. It has been held by Hon'ble the Supreme Court in case of [PRECEDENT] as under:
"18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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)
19. In view of the aforesaid decisions, when any employee is getting salary without any misrepresentation on his part, without any fraud played on his part and without being in connivance with the Governmental officers, amount received by him cannot be recovered from him
20. The respondent has already reached the age of superannuation ( Counsel appearing for the respondent has submitted that the respondent has already superannuated).
21. When we are quashing and setting aside the order dated 17 th December, 2012, the consequential Order dated 24th December, 2012 also deserves to be quashed and set aside.
22. In view of the aforesaid facts, reasons and judicial pronouncements, no error has been committed by the learned Single Judge while deciding [CASE NUMBER] vide order dated 29th June, 2016 and we see no reason to take any other view than what has been taken by the learned Single Judge.
23. There is no substance in this Letters Patent Appeal and the same is, hereby, dismissed.
24. In view of the final order passed in the Letters Patent Appeal, this interlocutory application also stands dismissed.
([ENTITY], A.C.J.) ([ENTITY], J.) s.m.