1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 6102 of 2014 ------- Nil Kantha Mondal, son of late Subodh Kumar Mondal, resident of New Karmik Nagar, P.O-ISM, P.S-Seraidhela, District-Dhanbad. ... Petitioner Versus 1.The State of Jharkhand through Secretary/Principal Secretary, Human Resources Development Department, having office at Project Building, Dhurwa, P.O & P.S-Dhurwa, Town and District- Ranchi. 2.The Director, Primary Education, Human Resources Development Department, having office at Primary Education Directorate, near Project Building, Dhurwa, P.O & P.S-Dhurwa, Town and District-Ranchi. 3.Deputy Commissioner, Dhanbad, P.O., P.S. & District-Dhanbad. 4.District Superintendent of Education, Dhanbad P.O., P.S. & District-Dhanbad… … … Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner : Mr Manoj Tandon, Advocate. Ms. Kumari Rashmi, Advocate Mr. Navin Kumar Singh, Advocate For the Respondents : Mr. Chanchal Jain, J.C to A.A.G ------ 03/Dated:
22. d September, 2016 Per Pramath Patnaik, J.: In the accompanied writ application, the petitioner has inter alia prayed for quashing order as contained in Memo dated 14.11.2014 whereby promotion granted to the petitioner on 29.03.1982 has been cancelled and the petitioner has been reverted to Matric trained scale i.e. Grade-IV to Grade-I and for quashing the decision contained in Memo dated 19.09.2014 whereby salary of the petitioner has been stopped from the month of September, 2014 and direction upon the respondents to pay the salary of the petitioner from the month of September, 2014 onwards and further prayed for quashing decision contained in letter dated 06.01.2015 issued by the District Superintendent of 2 Education, Dhanbad whereby a sum of Rs. 16,12,165/- has been sought to be recovered from the petitioner after his retirement on account of alleged access amount withdrawn by the petitioner.
2. The facts, as disclosed in the writ petition, in brief, is that initially the petitioner was appointed as Assistant Teacher on 09.11.1972 and the petitioner was granted Matric Trained scale w.e.f 20.09.1976 and thereafter the petitioner has been granted B.Sc. trained Scale vide memo dated 29.03.1982, however, the B.Sc trained scale granted to the petitioner was cancelled vide office order as contained in Memo dated 08.05.1987, against which, the petitioner and others moved the Court by filing C.W.J.C No. 1149 of 1987 (R), which was allowed vide order dated 24.09.1987. Pursuant thereto, notice was issued to the petitioner and others in the light of the direction issued in order dated 24.09.1987, to which, the petitioner replied and finally the District Superintendent of Education, Dhanbad vide memo dated 28.03.1988, after enquiry, found the promotion of the petitioner and others to be in order. Thereafter, the pay of the petitioner was time to time revised in various Pay Revisions. It has been submitted that after passage of time, the District Superintendent of Education, Dhanbad, Dhanbad issued letter dated 08.09.2014 directing the petitioner to submit all the educational certificates, which the petitioner submitted vide letter dated 16.09.2014. Thereafter, the salary of the petitioner was stopped vide letter dated 19.09.2014 and petitioner was directed vide letter dated 10.11.2014 to remain physically present in the office of District Superintendent of Education, Dhanbad. In pursuance to such 3 direction, the petitioner submitted his reply on 12.11.2014 but to the utter surprise and consternation, the impugned order dated 14.11.2014 was passed by the District Superintendent of Education, Dhanbad-respondent no. 4, whereby promotion granted to the petitioner on 29.03.1982 has been cancelled and the petitioner has been reverted to Matric trained scale i.e. Grade- IV to Grade-I. During pendency of the writ application, a communication dated 06.01.2015 has been issued by the District Superintendent of Education, Dhanbad whereby a sum of Rs.16,12,165/- has been sought to be recovered from the petitioner after his retirement on account of alleged access amount withdrawn by the petitioner.
3. Being aggrieved and dissatisfied with the impugned orders at Annexure 8, 11 and 13, the petitioner left with no alternative, efficacious and speedy remedy has approached this Court for redressal of his grievances invoking extraordinary jurisdiction under Article 226 of the Constitution of India.
4. Mr. Manoj Tandon, learned counsel for the petitioner, during course of argument has vehemently submitted that the impugned order dated 14.11.2014 cancelling the promotion of the petitioner of the year 1982 is assailable on the ground that the prior to issuance of impugned order no notice for cancellation of promotion has been issued, which is replete with illegality and fraught with arbitrary exercise of power of the respondents. The learned counsel for the petitioner further submits that the action of the respondent no. 4 in cancelling the promotion of the petitioner much after decision has been taken by his predecessor 4 vide order dated 19.09.2014 (Annexure
8) is nothing but smacks of colourable exercise of power. Learned counsel further submits that the impugned order of cancellation of promotion is a major punishment and departmental proceeding is a pre-requisite and necessary ingredient for infliction of any punishment. Moreover, a full-dressed enquiry is a sine qua non of a fair departmental proceeding. In the instant case, no such enquiry was conducted nor any proceeding has been initiated before infliction of major punishment like cancellation of promotion. Learned counsel further submits that the District Superintendent of Education, Dhanbad-respondent no. 4 has passed the impugned order when the petitioner was on the verge of retirement i.e. on 31.12.2014, that is one month prior to his retirement and that too after enquiry the entitlement of the petitioner to the B.Sc. trained scale has been given a stamp of approval by his predecessor in the year 1988, the respondent no. 4 in a cavalier fashion has tried to unsettle the settled position, which cannot be justified in the eye of law. Therefore, the impugned orders at Annexures 8, 11 and 13 are liable to be quashed and set aside.
5. Per contra, controverting the averments made in the writ application, a detailed counter affidavit has been filed by respondent no.
4. Mr. Chanchal Jain, J.C to A.A.G has reiterated the submissions made in the writ application. During course of hearing, learned counsel for the State has strenuously got home the points that the impugned orders have been passed after undertaking due exercise, diligence and sincerity. Learned counsel for the State referring to different paragraphs of the counter 5 affidavit submitted that the petitioner was appointed on the post in question in the year 1972, when he was under age and he was regular student of primary teachers college, Pindrajora in the Session 1974-76 and further petitioner was regular student of B.Sc. in P.K. Roy College, Dhanbad in the Session 1975-76, therefore, it is quite apparent that fraud on the part of the petitioner is quite glaring. Learned counsel for the State further submits that from perusal of proceedings of meetings of District Promotion dated 16.04.1980, 19.05.1980, 12.06.1980, 18.08.1980, 19.02.1981, 11.04.1981, 28.07.1981 and 26.06.1982, it appears that no such decision to grant B.Sc. Trained Scale was ever allowed to the petitioner, as such fraud is apparent. Learned counsel for the State referring to paragraph 24 of the counter affidavit submitted that order dated 23.08.1988 was not passed in compliance of order dated 24.09.1987 passed in C.W.J.C in 1149 of 1987(R) and the petitioner cannot take advantage of the said order and there is nothing on the record to show that order dated 23.08.1988 has been passed in compliance of order dated 24.09.1987 passed in C.W.J.C in 1149 of 1987(R). Learned counsel for the State further submits that due to various reasons like negligence, collusion, favoritism excess payment of Rs. 16,12,165/- i.e. public money has been made to the petitioner without any authority of law as such the same is recoverable under law. Learned counsel for the State further submits that any glaring lacuna, which is surfaced, that the petitioner has been granted I.Sc and B.Sc trained scale on the same day i.e. on 29.03.1982, the respondent no. 4 has rightly undertaken the right 6 decision in passing the impugned order vide Annexure 11 to the writ application. So by no stretch of imagination the impugned order construing to be illegal and unjustified order can be said to be unsustainable in the eye of law.
6. After hearing learned counsel for the parties at length and on perusal of the records, I am of the considered view that petitioner has been able to make out a case for interference due to the facts, reasons and judicial pronouncements: (I).Indisputably, while continuing as Assistant Teacher since 1972, the petitioner was granted B.Sc. trained scale in the year 1982. After getting the scale of B.Sc. Trained scale for almost five years, the said scale was cancelled vide order dated 08.05.1987 (Annexure 2), against which, the petitioner preferred in C.W.J.C No. 1149 of 1987(R), which was disposed of vide order dated 24.09.1987 directing the respondents to pass appropriate orders in accordance with law. In pursuance to order dated 24.09.1987, the petitioner and others were noticed and the enquiry was conducted so as to entitlement of the petitioner along with five others for admissibility of B.Sc. Trained scale and vide order dated 28.03.1988, after thorough enquiry, the then District Superintendent of Education, Dhanbad has been pleased to pass orders validating the scale of the B.Sc Trained. It appears that the matter was set at rest in the year 1988 and after almost 26 years again, the matter was raked up by respondent no. 4 in issuing the impugned order vide Annexure 11 dated 14.11.2014. Thus the settled decision has become unsettled and resultantly the order dated 7 06.01.2015 has been passed vide Annexure 13 to the writ application for recovery of the excess payment made to the petitioner, after retirement of the the petitioner on attaining the age of superannuation on 31.12.2014. (ii).On perusal of the aforesaid facts, it is crystal clear that the impugned order has been passed without adhering to the principles of natural justice and without initiating any proceedings. The decision of the respondents in cancelling the B.Sc (Trained) to Matric Trained Scale is a reduction in the scale of pay, which amounts to reduction in rank, which is a major punishment. So in the instant case, the impugned order suffers from infraction of Article 311(2) of the Constitution of India. On that score also, the order dated 14.11.2014 vide Annexure 11 is not legally sustainable. (iii).Furthermore, vide order dated 06.01.2015 passed by respondent no. 4, a direction has been issued for recovery of the excess payment made to the petitioner, which has been passed in pursuance to the order passed in consequence of the order dated 14.11.2014 vide Annexure 11 to the writ application. The same order has been passed after retirement of the petitioner from services. So far as recovery after retirement from services is concerned, it could not have been done without initiation of any proceeding. In the instant case no proceeding has been initiated for arriving at a conclusion so far as recovery of the excess payment is concerned after retirement of the petitioner, which is not legally sustainable. Moreover, the view of this Court gets fortified by the decision of the Hon'ble Apex Court rendered 8 in the case of State of Punjab & Ors Vs. Rafiq Masih (White Washer) & Ors. as reported in (2015) 4 SCC334 in particular 18, which is quoted herein below:
“18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i)Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii)Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii)Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv)Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v)In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.” The case of the petitioner falls within the scope and ambit of situations, as has been postulated by the Hon'ble Apex Court in the case of Rafiq Masih (Supra) as admittedly, the petitioner belongs to a Class III, hence, the order of recovery has been passed arbitrarily. (iv).In the instant case, prior to cancellation of promotion, no notice has been issued, therefore, on that score, the impugned order under Annexure 11 is brittle and vulnerable. Moreover, 9 the said decision by which the B.Sc. Trained scale has been affirmed vide Anneuxre 5 has been sought to be unsettled by respondent no. 4 at the fag end of the service career, which is violative of Articles 14, 21 and 300-A of the Constitution of India, as such the same is not legally sustainable.
7. In view of the reasons stated in the foregoing paragraphs and logical sequitur to the aforesaid discussions, the impugned order dated 19.09.2014 (Annexure 8), 14.11.2014 (Annexure
11) and 06.01.2015 (Annexure
13) are hereby quashed and set aside. Resultantly, the respondents, in particular respondent no. 4 is directed to pass necessary orders for payment of all dues against admissible salary and retiral dues of the petitioner, within a period of four months from the date of receipt/production of copy of this order.
8. With the aforesaid observations and directions, the writ petition stands allowed. (Pramath Patnaik, J.) Alankar/-