MAHENDRA KAMAT Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) PERUSAL of impugned order dated 21.09.2001, Annexure 5 of the writ petition, would reveal that although, petitioner was initially appointed as Peon, however, he was directed to discharge the duties of Chainman. Perusal of letter dated 02.02.2002, Annexure 5/1 would also reveal that petitioner was directed to perform the duties of Chainman vide order dated 24.08.1976 issued by the Soil Conservation Directorate. Since, petitioner was performing duties of the Chainman pursuant to the order dated 24.08.1976, therefore, he was paid the salary of Chainman. Vide impugned order dated 21.09.2001, Annexure 5, a direction was issued to recover the excess amount paid to the petitioner stating that petitioner was entitled for the salary for the post of Peon, while, he has been paid the salary of Chainman. Neither impugned order nor counter affidavit suggest that petitioner has ever played any fraud or misrepresentation in getting the salary of Chainman. Petitioner was paid salary of Chainman by the Department, since, he was directed to act as a Chainman vide order dated 24.08.1976. Hon'ble Apex Court in the case of Syed Abdul Qadir and others Vs. State of Bihar and others [(2009)3 SCC 475], has held that if employee has not played any role in misrepresentation or fraud in getting the salary fixed or getting the wages on the higher side and such mistake could not be detected at the earliest, then, no recovery should be directed to be made from the employee.

(2.) LEARNED counsel appearing for the petitioner clearly submits that after the bifurcation of the State, petitioner was allocated to the State of Jharkhand, therefore, the question as to whether petitioner would be paid pension considering him to have been retired from the post of Peon or Chainman, would depend on the allocation order issued by the Central Government, wherein, designation of the petitioner would have been shown by the Central Government. He further submits that if in the allocation order, petitioner is shown as a Peon, then, petitioner shall take necessary legal steps for the correction in the allocation order.