BALESHWAR SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) IN this writ application the petitioner has prayed for quashing the Office Order No. 195/2004 issued by Memo No. 669 dated 26.5.2004 (Annexure -3) whereby the respondent No. 4 has passed the order for deduction of Rs. 88,893/ -from the petitioner's amount of gratuity. The petitioner has also prayed for a direction commanding upon the respondents to pay the entire amount of gratuity, which he is legally entitled to.

(2.) THE facts leading to this writ application are as follows : The petitioner joined the service of the Police Department in the erstwhile State of Bihar as a Constable (O) Wireless on 16.8.1969. He was given promotion to the post of Assistant Sub -Inspector (ASI) in the year 1974 and subsequently to the rank of Sub -Inspector of Police w.e.f. 1.8.1992. After reorganization of the State of Jharkhand, the petitioner's service were placed in the Head Quarter of the State of Jharkhand in the year 2001. The petitioner retired on attaining the age of superannuation on 29.2.04. After his retirement, the impugned Office Order No. 195/04 has been issued by Memo No. 669 dated 26.5.04 whereby the respondent No. 4 has directed for deduction of a sum of Rs. 88,893/ - from the amount of the petitioner's gratuity, denying/disapproving the Reducible Personal Pay (RPP) which was paid to the petitioner during his service period on the basis of the fixation made by the department. According to the petitioner, the respondents have also reduced the amount of his pension on the plea of the said impugned order and fixed the monthly amount of pension at Rs. 8300/ -. It has been stated that the petitioner had no role in the fixation of pay or in getting RPP and the pay was fixed by the department and the salary was paid on the said scale from 1996 till his retirement.

(3.) DR . S.N. Pathak, learned counsel for the petitioner, submitted that admittedly the pay fixation was made by the competent authority and the RPP was paid to the petitioner in order to protect his pay from the pay of the junior Sub -Inspectors namely Suresh Pd. Singh and Ujjair Mallick. Learned counsel submitted that the respondents even in their counter affidavits have not stated that the petitioner was in any way instrumental in getting the said fixation of pay from the authorities concerned. There is absolutely no allegation of misrepresentation or any act of the petitioner at any stage in the process of the fixation of pay and he cannot be held liable for the alleged excess payment made on the basis of the said fixation by the department and amount of salary cannot be recovered from the petitioner. In support of the said submission the learned counsel relied on a decision of the Supreme Court in Sahib Ram v. State of Harayana and Ors., reported in 1995 (Suppl.) (1) SCC 18. Learned counsel further submitted that since the earlier fixation of the petitioner's pay scale has been revised after his retirement, the same at best can be made effective by revising the pension on the basis of the said fresh fixation order, but salary of the service period paid to the petitioner cannot now be curtailed with retrospective effect and no recovery can be made from the petitioner on the basis of said post retirement fixation of pay scale. The order of recovery is wholly illegal, arbitrary and unjust.