ANGILINA SOREN Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE issue involved in all the three writ petitions are same and similar and as such they have been taken together and are being disposed of by this common order.

(2.) THE facts in short in W.P. (S) No. 2163 of 2003 are: that the petitioner was appointed as Assistant Teacher in the District of Pakur by issue of order as contained in Annexure -1 dated 5.5.1980. She was subsequently promoted to the post of Headmistress vide order as contained in Memo No. 17362 -65 dated 23.8.1985 (Annexure -2). The petitioner has challenged the orders contained in Annexure - 4 to 6 to the writ petition, whereby on the basis of an Audit report, it has been prdered that since the pay of the petitioner was wrongly fixed on a higher scale and as such the amount paid to her in excess be recovered.

(3.) THE question involved in all the three writ petitions are as to whether on the recommendation made in the audit, report, can there be recovery of any amount said to have been paid in excess to the petitioners by way of salary. Similar matter came up before the Single Bench of this Court in W.P.(S) No. 2451 of 2003. In that case also, on the basis of the audit report of the Office of the Accountant General, promotion of that writ petitioner as Headmaster was held to be wrongly given and an order for recovery of the amount of salary paid in excess was made. A Single Bench of this Court by order dated 25.6.2009, held that the audit report of the office of Accountant General is a mere suggestion, and it is made for awakening the senses of the respondent -authorities so that upon holding proper enquiry, necessary action can be initiated. The learned Single Judge also held that the authority straightway implemented the report given by the office of Accountant General without giving any opportunity of being heard to the concerned persons. The order for recovery of the salary allegedly paid to the petitioner in excess was quashed in that case. Another Single Bench of this Court in W.P.(S) No. 1481 of 2003, W.P.(S) No. 3045 of 2003, W.P.(S) No. 3668 of 2003 and W.P.(S) No. 4782 of 2003, also held that since the order of recovery of the amount is punitive in nature, and therefore, the principles of natural justice need to be complied with. 5 A full Bench of this Court in the case of Smt. Normi Topno V/s. State of Jharkhand and Ors. reported in 2008 (1) 381 J.C.R. has also held that any order causing prejudice to a person cannot be passed without giving him/her an opportunity of hearing. The full Bench after considering the decision of Hon'ble Supreme Court has held in paragraph 42 of its judgment, as follows: it is no doubt true, the Supreme Court held that when the promotion is ab initio void, then on that basis, recovery can be made. It is also true that the power is vested with the State to recover the excess payment which was given wrongly or by mistake. But, where the promotion is said to be ab -initio void or the excess payment was said to be made on the basis of wrong calculation or due to the mistake committed in the department, then, it has to bu found out as to how the promotion could be held to be ab -initio void and how there was miscalculation or mistake and if it is so, by whom it was committed and ail these things have to be verified only through the inquiry by giving proper opportunity to the person concerned, who is likely to be affected by the conclusion of the inquiry. The conclusion without any inquiry or finding that there is a pecuniary loss to the Government due to the misconduct or mistake of pensioner even without giving opportunity to the person concerned, would certainly cause prejudice to the said person.