SUBODH CHANDRA AMBASTHA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE petitioner has prayed for quashing the order issued under Memo No. Ran San: 5/Pronnat -03 -07/09 Path/7385(s)WE Ranchi dated 11.11.2011 by the Under Secretary, Road Construction Department, Government of Jharkhand, whereby the benefit of ACPs granted to the petitioner w.e.f. 9.8.1999 has been sought to be reduced after his retirement and also the order dated 14.5.2012 issued by Executive Engineer, Road Construction Department, Road Division, Latehar whereby and a sum of Rs.1,00,479.00 has been sought to be recovered from the petitioner from his amount of leave encashment. It has been stated that the petitioner after rendering a long service and on attaining age of superannuation, retired on 30th June, 2011. During his service period, the petitioner was given benefits of Assured Career Progression Scheme by the department with effect from 9.8.1999 and his pay scale was fixed at Rs.5000 -8000. He was given benefit of second Assured Career Progression Scheme with effect from 1.4.2001 and his pay scale was fixed at Rs.5500 -9000. The said orders were issued by the Chief Engineer, Central Estimation Organisation, Road Construction Department, Ranchi. The said order of giving benefit of ACP was confirmed by the Government by office order no. 160 dated 30.07.2009 (Annexure -2). Under the provision of Sixth Pay Revision, a modified Assured Career Progression Scheme was framed and implemented. The petitioner was considered for the same and recommendation was made by the Chief Engineer for granting benefit of MACPs to the petitioner and upgrading his scale to Rs.4600 with effect from 1.07.2009 and Rs.15430 as on 1.7.2010. The said order was sent for approval before the Government but the Secretary, instead of granting approval, passed the impugned order reducing the pay scale fixed after giving him first and second ACPs benefits. The said order has been assailed in this writ petition.

(2.) IT has been submitted that the impugned order amounts to reduction of pay and the same cannot be passed without giving any notice and opportunity of hearing to the petitioner. The order being violative of principles of natural justice is wholly illegal and without jurisdiction. The petitioner retired with effect from 30th June, 2011 and the order has been passed on 11.11.2011, whereby the petitioner's pay scale has been reduced with retrospective effect and the amount allegedly given to the petitioner due to wrong fixation has been sought to be realised from his leave encashment. The said order is unsustainable also on the ground that there is no allegation that the petitioner was instrumental in fraudulently getting the pay scale fixed at the higher scale. The pay scale was fixed by the departmental authority and confirmed by the Government. In that case, the petitioner is not liable for recovery of the alleged excess amount paid on the basis of grant of the benefit of ACPs to the petitioner. 2003 (4) JCR 682 and Ram Prasann Singh Vs. State of Jharkhand and others (2005) 4 JCR 48 (Jhr). Learned counsel submitted that the amount, which was given on the basis of pay fixation made by the competent authority cannot be recovered. Even for the argument's sake, if the pay scale is fixed erroneously, the petitioner is not liable to refund the alleged excess amount paid to him on the basis of the pay scale fixed by the department. No such amount paid to him as salary can be recovered after his retirement. Learned counsel submitted that in the case of Sahib Ram (supra), the Hon'ble Supreme Court and in the cases of Arjun Prasad Yadav and Ram Prasann Singh (supra), this Court have consistently held that in absence of any misrepresentation or fraud being committed by an employee to get a higher pay scale, any alleged amount paid on the basis of the fixation of higher pay scale cannot be recovered. The impugned order being contrary to the said judicial pronouncement is unsustainable and is liable to be quashed. 4. Learned JC to G.P. IV, appearing on behalf of the respondents, submitted that there is no illegality in the impugned order. A wrong committed by the department can be corrected at any stage and if the petitioner has got un -authorised payment, the excess amount has to be recovered from him. Learned counsel further submitted that by the impugned order, the excess payment, unauthorisedly made, has been sought to be recovered. The same is not punitive and no notice or opportunity of hearing is required to be given to the petitioner. 5. I have heard learned counsel for the parties and considered the facts and materials on record. Admittedly, higher pay scale was fixed by the department after giving benefits of the ACP scheme. There was no misrepresentation or fraud on the part of the petitioner in getting the said higher pay scale or getting benefit of ACPs. The scale was fixed by the competent authority and confirmed by the Government. The petitioner got his pay on the basis of the said fixation of pay, till he retired on 30th June, 2011. By the impugned order, not only the petitioner's pay scale has been reduced, an amount of Rs.1,00,479.00, has also been sought to be recovered from the amount of his leave encashment. The order of recovery is punitive and visits the petitioner with civil consequence. Any such order which affects a person adversely cannot be passed without giving him notice or opportunity of hearing and complying with the principles of natural justice. Further, in the case of Sahib Ram (supra), the Hon'ble Supreme Court and in the cases of Arjun Prasad Yadav and Ram Prasann Singh, this Court have consistently held that if there was no fraudulent act or misrepresentation by the person in obtaining promotion or fixation of higher salary, any amount paid as salary on that basis cannot be subsequently recovered from him. 6. For the reasons aforesaid, the impugned order issued under Memo No. Ran San: 5/Pronnat -03 -07/09 Path/7385(s)WE Ranchi dated 11.11.2011 by the Under Secretary, Road Construction Department, Government of Jharkhand and the order dated 14.05.2012 passed by the Executive Engineer, Road Construction Department, Road Division, Latehar, contained in Annexures -4 and 5, are quashed. 7. This writ petition is, accordingly, allowed.