D.G.R. Patnaik, J.@mdashThis writ application has been filed by the petitioner praying for quashing of the order dated 11.3 2002 (Annexure 15) issued by the Secretary, Department of Law (Justice), Government of Jharkhand whereby and whereunder direction has been made for re-fixation of the pay of the petitioner and to recover from him the amount paid in excess as salary to the petitioner. Further prayer has bean made for directing the respondent authorities to fix salary of the petitioner in the scale of pay of Rs. 2000-3500/- per month with effect from 1990 as per the recommendation of the Vth Pay Revision Committee and in the scale of Rs. 6500-10,500/- per month with effect from 1.1.1996 as per the VI Pay Revision Committee and also for a direction to the respondents to pay salary of the petitioner for the month of March and April, 2002 which has been withheld by the respondents.
2. The petitioner was appointed as a full time stenographer on 8.7.1974 in the scale of pay of Rs. 296-460/- in the Civil Court at Ranchi. Consequent upon the recommendations of the third Pay Revision Committee, his scale of pay was revised at Rs. 400-630/- per month pursuant to the letter dated 7.4.1977 issued by the Finance Department by the State Government.
3. In the year 1985, the petitioner was superseded by his junior in the matter of promotion/selection grade promotion. Being aggrieved, he submitted his representation before the High Court of Jharkhand, (respondent No. 2) through the Judicial Commissioner, Ranchi, (respondent No. 3). The representation was considered by the High Court on the administrative side and by letter dated 7.3.1988, the High Court directed the judicial commissioner, Ranchi to re-fix the petitioner''s seniority by placing him at Serial No. 1 of the Shorthand writers from 1.4.1981 and to allow him all promotional and other benefits as per rules. Pursuant to the aforesaid direction of the High Court, the then Judicial Commissioner, Ranchi, issued an order to the effect that the petitioner be placed at serial No. 1 of the Stenographers after confirming him to the post of Steno to the Judicial Commissioner Ranchi with effect from 1.4.1981 and allowed him all promotional and other benefits admissible from time to time in the scale of pay of Rs. 880-1510/-. A copy of the letter was also forwarded to the Financial Department of the State Government for information and needful. The order, a copy of which was also given to the petiotner, was however, subject to the condition that in case it is found that the fixation of pay was not legal, proper or according lo the directions of the Government, the excess amount paid, if any, will be recovered from the pay of the petitioner. Subsequently, alter implementation of the Government resolution No. 6021 dated 18.10.1989, the scale of pay of the petitioner was revised to the scale of pay of Rs. 1640-2300/- per month. However, being dissatisfied and claiming that his revised pay should have been fixed at Rs. 2000-3500/- together with PA Allowance, he filed a representation before the Judicial Commissioner who forwarded the representation to the Secretary, Law Department, Government of Jharkhand, stating the details of all relevant facts and endorsing his own recommendation for proper consideration of the petitioner''s representation. Several reminders thereafter, were issued by the Judicial Commissioner to the Secretary, Law & Justice, Government of Jharkhand on the basis of the repeated representations filed by the petitioner in the matter of fixation of his pay. In response, by letter dated 2.7.2001 (Annexure 13) addressed to the Judicial Commissioner, Joint Secretary, Law Department, made queries on several relevant points. Reply to the queries was made by the Judicial Commissioner by letter dated 31.7.2001 (Annexure 14). After receipt of the reply to the queries, the Secretary Department of Law & Justice, Government of Jharkhand, by the impugned letter (annexure-15) has pointed out that the fixation of pay of the petitioner in the scale of Rs. 880-1510/- from 1.4.1981 was improper and not in accordance with the Rules and that the petitioner''s revised pay scale should have been fixed at Rs. 680-965/- from 1.4.1981 and pursuant to revision on 1.1.1996 at Rs. 4000-6000/-. A direction was issued therefore to fix the pay of the petitioner accordingly and after confirmation from the Finance Department of the pay so fixed, to recover the excess amount paid to the petitioner from his future salary. On the contents of the impugned letter being communicated to the petitioner and feeling aggrieved, the petitioner has challenged the impugned order of the Law Secretary in the present writ application.
4. In support of the relief claimed, the learned Counsel has raised the following grounds:
(i) that the directive as contained in the impugned order amounts to reduction of the pay scale of the petitioner and also amounts to his reversion and should not have been passed without affording him opportunity of being heard;
(ii) that the pay scale of the petitioner as on 1.4.1981 was fixed at Rs. 880-1510/- by the competent authority after considering the direction of the High Court on the administrative side which was passed after allowing the petitioner''s representation for fixing his seniority and his consequential pay scale on the basis of his seniority;
(iii) That there was no fraud or misrepresentation by the petitioner in the matter of fixation of his pay at the aforesaid scale of pay and as such, no order should have been passed for recovery of any purported excess amount paid to the petitioner;
(iv) Even otherwise, after having allowed the petitioner to draw the salary in the scale of pay fixed by the competent authority ever since 1981 till date, the petitioner cannot be called upon to refund any purported excess payment after such a long period and the mistake, if any, cannot be permitted to be rectified at this stage.
(v) That the pay fixed by the Judicial Commissioner with effect from 1.4.1981 was correct and in consonance with the resolution dated 6.1.1978 issued by the Department of Personnel & Administrative Reforms by which a separate cadre for stenographers working in the Secretariat and its attached offices, was created ns a joint cadre of PAs and the petitioner being posted as PA to the Judicial Commissioner was equal in rank with the stenographers working in the secretariat and its attached offices and therefore the petitioner was entitled to the same scale of pay as given to them. Under such circumstances, the revised scale of pay of the petitioner should have been fixed at Rs. 2000-3500/- per month from 1.1.1986 and not at Rs. 1320-2040/- per month as wrongly stated in the impugned order.
5. To buttress his argument on the grounds aforementioned, the learned Counsel for the petitioner refers to mc relies upon a Full Bench judgment of this Court in the case of Laxman Prasad Gupta v. State of Jharkhand 2007 (4) JLJR 459 (FB) besides the judgment of the Supreme Court in the case of
6. A counter affidavit has been filed by the respondent No. 1 denying and disputing the entire claim and the grounds advanced by the petitioner. The stand taken by the respondent is that the petitioner does not belong to the Secretariat cadre and its attached offices. Rather, he belongs to mufassil cadre in the civil courts Es tablishment of the State and a separate scale of pay has been fixed in respect of the employees of the civil court Establishment. Therefore, the petitioner cannot claim parity with the stenographers belonging to the secretariat and its attached offices. According to the scale of pay fixed for the stenographers in the civil court Establishment, the revised scale of pay for the stenographers as on petitioner at such higher scale. The petitioner therefore cannot take advantage of the wrong fixation of pay and salary to which he was not entitled. It has also been pointed out that the claim of the petitioner that his pay was rightly fixed at Rs. 880-1510 on the basis of the directive of the High Court (respondent No. 2) is also misleading and incorrect in as much as the direction given by the High Court on the administrative side to the Judicial Commissioner, Ranchi was only to place the petitioner at serial No. 1 in the gradation list of the Stenographers and to give him the benefit which may be applicable to him on die basis of his seniority. It was no where directed by the High Court cha'' the pay scale of the petitioner should be fixed at Rs. 880-1510/-. It is further contended that the petitioner''s claim on the basis of the recommendation of the Judicial Commissioner to fix the petitioner''s pay in the scale of Rs. 2000-3500/- per month is not tenable because the recommendation of the Judicial Commissioner being contrary to the rides cannot have any binding force.
7. Mr. H.K. Mehta, learned Counsel for the respondent No. 1 submits that the mere fact that there was no misrepresentation on the part of the petitioner in the matter of fixation of his pay in the scale of Rs. 880-1510/-, will not absolve him from the liability of refund of excess payment received by him as the benefit of such payment was not legitimately due to him. In support of his argument, learned Counsel refers to and relies upon the Supreme Court judgment in the case of Batliboi Employees Union v. Batliboi & Co. and Anr. 1993 (3) SCC 523; the
8. The questions of law as raised by the petitioner are:
(i) whether the conclusion of the respondent No. 1 and the direction to fix revised pay of the petitioner and for recovery of excess paid salary from the petitioner, is violative of the principles of natural justice in as much as no opportunity of hearing was given to him before such conclusion?
(ii) whether in absence of any finding to the effect that the petitioner has withdrawn the purported excess salary after committing fraud or misrepresentation, the action of the respondents directing recovery of the purported excess payment from the salary of the petitioner is justified?
(iii) whether the action of the respondents is violative of Articles 14 16 and 21 of the Constitution of India?
9. The main basis on which the petitioner has developed his case is the fixation of his pay made by the Judicial. Commissioner Ranchi at Rs. 880-1510/- with effect from 1.4.1981. Such fixation of scale of pay according to him, was based on the directives of the High Court as contained in annexure 3 to the writ petition.
The second limb of the petitioner''s claim is based on the ground that since as per the Circular issued by the Government, the stenographers in the cadre of Secretariat a ad attached offices have been included in the common cadre with common pay scale, the petitioner is also deemed to have been included in the same cadre with the same scale of pay as applicable to the stenographers of the cadre of the Secretariat.
10. Admittedly, the petitioner''s appointment was on the post of a Shorthand Writer/Stenographer in the civil court Establishment. There is no dispute to the fact that for the civil court establishment, the Government had prescribed a separate cadre altogether, fixing the pay scales of various of the employees of the civil court establishment. The petitioner at the time of his initial appointment had excepted the fact that his service conditions including the scale of pay was to be guided according to the scale of pay fixed by the Government hi respect of employees of the Civil Court Establishment. He is therefore bound by die service conditions applicable to him.
11. From annexure A to the counter affidavit filed on behalf of the respondents, it transpires that the scale of pay of the stenographers to the Judicial Commissioner/District Judges was originally fixed at the pay scale of Rs. 296-460/- which was subsequently revised to the pay scale of Rs. 680-965/- on and from 1.4.1981. The scale of Rs. 880-1510/- has been provided for the senior-most post which is the post of Stamp Reporter.
12. From perusal of annexure 3 whi:h is the letter issued by the Addl. Registrar of the High Court, addressed to the Judicial Commissioner, it appears that the direction contained therein was that on the representation of the petitioner being allowed, the seniority of the petitioner be revised and he should be paced at serial No. 1 of the shorthand writers from 1.4.1981 and to allow him all promotional and other benefits "as per rules". Apparently, there h no direction by the High Court to fix the petitioner''s scale of pay at Rs. 880-1510/-.
Annexure 5 dated 20.4.1988 is the order of the Judicial Commissioner passed pursuant to the direction of the High Court, as contained in annexure 3. While placing the petitioner at serial No. 1 in the gradation list of stenographers, his scale of pay was fixed at Rs. 880-1510/- per month. Further, though the above scale of pay was fixed, but it was with the stipulation that the fixation of pay shall be subject to the approval of the Financial Department and if such fixation of pay is found to be irregular, improper or contrary to the direction of the Government, then, excess amount, if any paid, will be recovered from the petitioner''s salary. A copy of the order was forwarded to the petitioner as also to the Registrar of the High Court and to the Finance Department of the State Government.
From the above facts, it is apparent on the face of the record that though the petitioner was posted as Stenographer to the Judicial Commissioner/District Judge and the scale of pay applicable to him was Rs. 680-965/- as on 1.4.1981, his scale of pay was wrongly fixed at Rs. 880-1510/- by the Judicial Commissioner. Ever since the incorrect fixation of pay in the above scale, the petitioner has been enjoying excess payment of salary even though he was aware of the fact that lie was entitled to the scale of Rs. 680-965/- only as applicable to his post. There being thus no justification for fixation of the petitioner s pay on 1.4.1981 at Rs. 880-1510/-and the petitioner being aware of this fact, fie deliberately felt it convenient not to point out the anomaly and continued to enjoy the higher scale of pay to which he was not entitled according to the rules. Merely because the Finance Department, despite receiving copy of the order (annexure 5) of the Judicial Commissioner did not point out the anomaly in the fixation of his pay promptly, it cannot be said that the pay so fixed, was approved giving the privilege to the petitioner to enjoy the excess amount of salary.
On the facts of the case, an it be said that on the ground that it was an exclusive mistake on the part of the Judicial Commissioner in fixing wrong pay scale of the petitioner at higher scale without there being any misrepresentation on the part of the petitioner, it absolves the petitioner from his liability to refund the excess amount received by him? Can the mistake committed in the administrative order of the Judicial Commissioner not be rectified by the respondents in view of the plea taken by them that the mistake is capable of being rectified and they are entitled to rectify the same?
13. In the case of Batliboi Employees Union (supra) while considering the issue relating to the excess payment made to the workmen beyond what they were entitled to as house rent allowance, it was held that the excess payments are recoverable from the workman though by way of an equitable distribution by way of adjustment from the future payments. Likewise in the case of Union of India v. Indian Railway Staff Association (supra), the Supreme Court has held that excess payment made in the revised pay scale can be recovered from the salary of the employee who is in service, though not from those who have already retired. Likewise, in the case of Sujatha Vedachalam (supra), the Supreme Court has held that recovery of excess payment on account of wrong fixation of pay can be made from the employee, though in easy instalments.
14. The aforesaid judgments of the Supreme Court do declare that excess payment received by any employee beyond what he was legitimately entitled to, can be recovered from his salary if he continues to remain in service, though such recovery can not be permitted if the employee has already retired and the process of recovery was not initiated prior to his retirement.
15. In the case of Sahib Ram v. State of Haryana 1995 1 SCC 18 relied upon by the petitioner, the Supreme Court has observed that though excess payment was wrongly made to the employee, it was not on account of mistake or misrepresentation by the said employee, but it was on account of mistake by wrong construction made by the principal and for this, the employee cannot be held responsible and such amount paid till date cannot be recovered from the employee.
The observation made in Sahib Ram''s case (supra) indicates two aspects. Firstly, that unless it is established that an excess amount was received by the employee either by misrepresentation or fraud or negligence, the amount paid cannot be recovered from the employee, that too from pension and gratuity even without any opportunity of hearing causing serious prejudice to the person. Secondly, unless there is an enquiry with reference to the question whether the time bound promotion has been wrongly given and unless the order giving such promotion is cancelled with reasoned consequence, recovery cannot be made. It may be noted that the observation of the apex Court in Sahib Ram''s case was in the context of the facts that time bound promotion was wrongly given to the employee resulting in the fixation of his pay at a higher scale than what he was entitled to and such payment was sought to be recovered even after retirement of the employee and that too, without offering opportunity to the employee of being heard and without conducting any enquiry. It is in this context that the Supreme Court has held that the action for recovery from pension of the employee cannot be justified.
16. The second case relied upon by the learned Counsel for the petitioner is with reference to the judgment in the case of Smt. Normi Topno v. State of Jharkhand (Full Bench) reported in 2007( 4) JLJR 466. In this case, the Full Bench has referred to several judgments of the Supreme Court relied upon by both the parties and held that the excess payment cannot be recovered from the employer after his retirement without following the procedures laid down under the Bihar Pension Rules. This decision was taken in the context of the I acts of the case that the excess amount was sought to be recovered from the pension of the employee after his retirement.
The third case relied upon by the learned Counsel for the petitioner is the judgment of the Supreme Court in the case of Shekhar Ghosh (supra) where the requirement to comply with the principles of natural justice has been emphasized and the order of rectification of the mistake in making excess payment of salary without affording opportunity to the employee of being heard, was set aside. The facts in the case of Shekhar Ghosh v. Union of India (supra) was that though the concerned employee, who was originally holding lien on the post of khalasi Grade II, a wrong entry was made in his service record suggesting that he was holding the post of junior Clerk in a substantive capacity. The mistake was detected on the basis of a complaint made against him that with the connivance of the officials of the concerned department, the petitioner had managed to incorporate wrong entries in his service record. Despite such complaint, no departmental proceeding was initiated against the employee, nor was any charge framed against him on the allegation of misconduct, nor even a copy of the complaint supplied to him. Yet, by order of the superior officer, he was directed to be repatriated to his original post. It was in this context that while relying on the judgment of Ram Ujarey v. Union of India 199S (1) SCC 685, the Supreme Court has held in the following terms:
It is tot denied or disputed that even when a mistake is sought to be rectified, if by reason thereof, an employee has to suffer civil consequences, ordinarily the principles of natural justice are to be complied with.
The Court further proceeded to observe.
Requirement to comply with the principles of natural justice would, therefore, vary from case to case. If upon giving an opportunity of hearing to an affected employee, it is possible to arrive at a different finding, the principles of natural justice must be complied with....
17. It is by now well settled that any benefit given to a person by mistake is recoverable when the mistake is detected and such wrong benefit given to a person by mistake cannot confer any right on the recipient or act as an estoppel against the person who by mistake has granted such wrong benefit. It is also settled principle of law that mistake, if committed in passing an administrative order, the same may be rectified and if such mistake is apparent on the face of the record, the rectification thereof is permissible even without giving any opportunity of hearing to the aggrieved party.
18. As has been laid down in the case of Shekhar Ghosh (supra), the requirement to comply with the principles of natural justice would vary from case to case. Insistence upon an opportunity of hearing to the affected employee can be made only if it is shown that it is possible to arrive at a different finding if an opportunity is given. Where the mistake is apparent on the face of the record, the compliance of the principles of natural justice would not have made any difference, then the mistake can be rectified even without giving an opportunity of hearing to the aggrieved party.
19. In the present case, the rectification of the mistake is sought to be made even during the period when the petitioner is in service. The mistake in the administrative order of the Judicial Commissioner as has been detected, is apparent on the face of the record, inasmuch as the petitioner''s pay has been fixed in e higher scale of pay against the post on which he was appointed even though the scale prescribed for the post was at a lesser scale. Furthermore, the erroneous fixation of pay was subject to rectification and excess payment made, if any, on the basis of such pay fixation could be recovered from the salary of the petitioner as declared even in the order of the Judicial Commissioner while fixing the pay. This fact, from the very beginning, was within the knowledge of the petitioner. Certainly, the respondents have authority to rectify the mistake and to re-fix the petitioner''s pay in the appropriate scale and to recover the excess payment made to him from his future salary. In the facts and circumstances of the case there was, therefore, no necessity of giving an opportunity to the petitioner of being heard before the order for rectification and re-fixation of his pay was passed by the impugned order.
20. Even though the facts may not suggest any active misrepresentation on the part of the petitioner, yet, the fact that the petitioner despite being all along aware of the mistake in regard to the fixation of his pay, did not point out the anomaly on his own and continued to receive excess amounts which was not legitimately due to him, may be treated as a deliberate suppression of material facts.
21. For the aforesaid reasons, I do not find any merit in this application. This writ application is accordingly dismissed.
