SHIV SHANKAR PRASAD Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THROUGH this writ application the petitioner has sought to quash an office order no. 65 as contained in memo no. 709 dated 3.9.2003 issued by Executive Engineer. Health Engineering Division (Drinking Water and Purity Division) Tenughat, Bokaro under which excess amount of Rs. 25028/ - paid to the petitioner on account of wrong fixation of salary and also for wrong payment for unutilized earned leave has been ordered to be recovered from the amount of pension and gratuity.

(2.) LEARNED counsel appearing for the petitioner submits that, while the petitioner was working as Plumber in the Department of Public Health Engineering, Tenughat his salary was revised in the scale of Rs. 3050 -75 -3950 -80 -4590 pursuant to report of Sixth Pay Revision Committee and started drawing his salary in the said pay scale and in due course of time the petitioner superannuated on 30.6.2001. Thereafter provisional pension was fixed on the basis of salary last paid. But after some time the authority stopped making payment of pension as the petitioner had not vacated the quarter and thereupon the petitioner moved to this Court. vide W.P.(S) No. 3073 of 2003 for a direction to the authority for final fixation of the pension amount and also for payment of arrears whereby this Court asked the petitioner to vacate the quarter and also directed the respondent to fix the pension of the petitioner and to pay arrears by 30.9.2003. Thereupon the petitioner vacated the quarter but to utter surprise to the petitioner the authority passed an order as contained in Annexure 3 whereby a sum of Rs. 25028/ - was sought to be recovered from the pensionary amount of the petitioner as, according to him, the same had been drawn in excess by the petitioner while he was in service. Pursuant to that order, the entire money has been recovered from the pensionary amount of the petitioner which is quite illegal as the same cannot be recovered In view of the provision as contained in Rule 43B of the Jharkhand Pension Rules, 2000 as the authority before passing the order regarding recovery has not initiated any proceeding against the petitioner. Moreover, refixation of the salary has been made by the authority on its own and there was no misrepresentation on the part of the petitioner and as such the impugned order is fit to be set aside.

(3.) HAVING heard learned counsel appearing for the petitioner and learned counsel appearing for the State it does appear that while the petitioner was in service, refixation of his salary was made in view of the report submitted by Sixth Pay Revision Committee under Resolution No. 660 dated 8.2.1999.and pursuant to that petitioner did draw his salary. Subsequently petitioner superannuated and thereafter an order as contained in Annexure 3 was passed whereby a sum of Rs. 25028/was sought to be recovered as the same had been drawn in excess by the petitioner while he was In service but the order does not seem to be justified as fixation had been made by the State authority on its own and not on the basis of any misrepresented by the petitioner and as such the authority, in view of the ratio laid down in a case of Bihar State Electricity Board vs. Bijay Bahadur and Another [(2000)10 SCC 90] is not permitted to recover the amount which has been drawn in excess either from gratuity or pension amount and as such the order as contained in Annexure 3 is hereby set aside. Consequently, the respondent No.2 is hereby directed to refund the said amount of Rs. 25028/ - (Rupees twenty five thousand and twenty eight) within three months from the date of receipt of a copy of this order and to do the needful for fixation of final pension on the pay scale which the petitioner had lastly drawn.