Patna High Court
Pramod Kumar Sinha vs The Union Of India on 20 December, 2024
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11407 of 2024
======================================================
Pramod Kumar Sinha Son of Thakur Rabindra Singh, Resident of Ward No.
10, New Mainpura, Opposite Ashiyana Green City Apartment, Saguna, P.O.
and P.S. - Danapur, District- Patna, Bihar - 801503.
... ... Petitioner/s
Versus
1. The Union of India through Secretary, Ministry of Home Affairs, North
Block, New Delhi.
2. Director General, Central Industrial Security Force, Block No. 13, CGO
Complex, Lodhi Road, New Delhi - 110003.
3. Inspector General, CISF Eastern Sector HQrs, Tiril Ashram, Ranchi,
Jharkhand - 835303.
4. The Deputy Inspector General, CISF Eastern Zone HQrs, GD Mishra Path,
New Pataliputra Colony, Boring Road, Patna, Bihar - 800013.
5. The Group Commandant Central Industrial Security Force, Ministry of
Home Affairs, Eastern Head Quarter, Boring Road, Patliputra, Patna, Bihar -
800013.
6. The Deputy Commandant, CISF Unit BRBCL, Nabinagar, P.O.- Pirauta,
District- Aurangabad, Bihar- 824303.
7. Dry Inspector General (Adm.), Lodhi Road, New Delhi.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Gajendra Pratap Singh, Advocate
For the Respondent/s : Mr. (Dr.) Krishna Nandan Singh, ASGI
Mrs. Punam Kumari Singh, CGC
Mr. Amarjeet, JC to ASG
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Patna High Court CWJC No.11407 of 2024 dt.20-12-2024
2/14
Date : 20-12-2024
Heard Mr. Gajendra Pratap Singh, learned counsel
appearing on behalf of the petitioner and Mr. (Dr.) Krishna
Nandan Singh, learned ASGI along with Mrs. Punam Kumari
Singh, learned CGC and Mr. Amarjeet, learned JC to ASGI for
the respondents.
2. Petitioner has inter alia prayed for following
reliefs in the paragraphs No.1 of the writ petition:-
i. For issuance of a writ in the nature of
Certiorari for quashing the order of reduction of pay and
recovery contained in Letter No.8422 dated 30.11.2023
(Annexure 4, Pg-23) whereby his pay was reduced and an
amount of Rs.2,13,908/- has been deducted from the his
gratuity, arbitrarily and illegally without issuing any
Notice/Show Cause and affording any opportunity of
hearing, prior to such revision and deduction and in
violation of the law laid down by the Hon'ble Supreme
Court of India in State of Punjab & Ors. Vs. Rafiq Masih
(White Washer) & Ors. reported in (2015) 4 SCC 334.
ii. Issue appropriate Writ(s) and Order(s) in
the nature of Certiorari to quash the order/communication
contained in Letter No.2798 dated 08.12.2023 (Annexure
P-2), Letter No.RPAO/CISF/MHA/RAN/PENII/23-24/218,
dated 12.10.2023 (Annexure P-3), Letter No.8422, dated
30.11.2023
(Annexure P-4), Letter No.629, dated
18.03.2024 (Annexure P-6) whereby and whereunder it has
been communicated, ordered and reasoned to reduce the
pay any effectuate a recovery of excess amount allegedly
paid to the petitioner.
Patna High Court CWJC No.11407 of 2024 dt.20-12-2024
3/14
iii. Issue direction to the Respondents to
restore the earlier pay fixation of the petitioner.
iv. For the direction upon the respondents to
refund the amount of Rs.2,13,908/- with 12% interest from
the date of deduction, illegally deducted from the Gratuity
of the petitioner towards recovery of excess payment made
due to alleged incorrect pay fixation on dated 04.11.2008.”
Brief facts:
3. The brief facts of the case are that on 29.05.2004
the petitioner was appointed in Central Industrial Security
Force as ASI/EXE (RO) and on 04.11.2008, the petitioner got
promoted to the rank of SI/EE (RO). The petitioner represented
on 04.10.2010 before the respondent no. 7 to re-fix his pay as
per the Central Civil Services (Revised pay) Rules, 2008 with
effect from April, 2008, but the respondent no. 2 rejected the
request of the petitioner to re-fix his pay scale. In reply to the
petitioner’s query made vide letter dated 07.12.2010 and
28.03.2011, the respondent no.7 and respondent no.2 informed
that seniority of the petitioner in feeder rank is not affected.
Aggrieved by the action of respondent no.2, insofar as delay in
promotion of the petitioner w.e.f. the date one employee Dilip
Singh, who is junior to the petitioner, the respondent no.7 vide
order dated 26.07.2012 promoted the petitioner notionally w.e.f
02.05.2008 and re-fixed basic pay equal to SI/Exe Dilip Singh,
Patna High Court CWJC No.11407 of 2024 dt.20-12-2024
4/14
who was junior to the petitioner. The petitioner superannuated
on 31.07.2023 and on 06.12.2023, petitioner made
representation before the respondent no.6, requesting to release
his pensionary benefits. Respondent no.6 vide letter no.2798
dated 08.12.2023 communicated the petitioner that Regional
Pay and Account Office, CISF, Ranchi vide letter dated
12.10.2023 has raised objection in fixation of salary from
04.11.2008 in the pension paper of the petitioner. The petitioner
vide letter dated 12.03.2024 made the representation before
respondent no.6 and sought cogent reasons for the revision of
pay and recovery of Rs.2,13,908/- from gratuity. Thereafter, the
respondent no.6 vide its letter no.629 dated 18.03.2024, in
response to the aforesaid representation, communicated that,
vide letter no.8422 dated 30.11.2023, a decision was taken by
respondents to reduce the pay of the petitioner and effectuate a
recovery of Rs.2,13,908 from gratuity on account of incorrect
pay fixation on 04.11.2008. Aggrieved by the same, the
petitioner has filed the present writ petition.
Argument of respective parties:
4. Learned counsel appearing on behalf of the
petitioner submitted that there is flagrant illegality, arbitrariness
and blatant violation of Article 14 of the Constitution of India
Patna High Court CWJC No.11407 of 2024 dt.20-12-2024
5/14inherent in the unilateral decision of the respondents to reduce
the pay of the petitioner and effectuate a recovery of
Rs.2,13,908/- as no show cause or any opportunity of hearing
was given to the petitioner. Learned counsel further submitted
that petitioner has not committed any misappropriation or
misrepresented, rather the respondent has admitted that they
have erroneously fixed pay scale of the petitioner after his
retirement and the same cannot be recovered. In this regard,
learned counsel has placed reliance upon the judgment of the
Apex Court in case of State of Punjab & Ors. Vs. Rafiq
Masih (White Washer) & Ors. reported in (2015) 4 SCC 334.
5. Per contra, Mr. (Dr.) K. N. Singh, learned ASG
appearing on behalf of the respondents vehemently opposed
the prayer of the petitioner on the ground that petitioner has
given undertaking on 14.02.2023 that in case any outstanding
government dues still remain, then the same may be
recovered/adjusted from the payment of his salary, leave
encashment, DCRG etc. Specific statement in this regard has
been made in paragraph no.5 of the supplementary counter
affidavit. Further, the respondents have also taken note of Rule
6(2), which prescribes for such undertaking in “Form of
Option” and the same has been brought on record by way of
Patna High Court CWJC No.11407 of 2024 dt.20-12-2024
6/14Annexure R-14 to the supplementary counter affidavit. Learned
counsel has further relied upon a judgment of the Apex Court
in case of High Court of Punjab and Haryana Vs. Jagdev
Singh, reported in 2016(14) SCC 267 to contend that in
paragraph no.11 of the said judgment, the principle enunciated
in Rafiq Masih (supra) i.e., recovery from retired employee or
employees, who are due to retire within one year of the order of
recovery is said to be impermissible in law. Further, in view of
the law laid down by the Apex Court in the case of Jagdev
Singh (Supra), learned ASG submitted that in the present case,
the sub-officer to whom the payment was made in the first
instance was clearly placed on notice that any payment found to
have been made in excess would be required to be refunded.
The officer furnished an undertaking while opting for the
revised pay scale and, therefore, he is bound by the undertaking
as per the provision of Rule 6(2). Learned ASG in background
of the present case, stated that the law laid down in the case of
Rafiq Masih (Supra) will not help the petitioner.
Analysis and conclusion
6. Heard the parties.
7. The main question which arises first for
consideration of this Court, is, as to whether, the petitioner, who
Patna High Court CWJC No.11407 of 2024 dt.20-12-2024
7/14
was a Class-III employee and posted as Sub-Inspector of CISF,
which is a non-gazetted post, and his case is required to be
considered in light of the law laid down by the Apex Court in
case of Rafiq Masih (Supra), wherein, the Apex Court has
laid down the principle of recoveries, and issued the guidelines
in paragraph no.18, which is reproduced hereinafter:
“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 herein above, we may, as a ready
reference, summarise the following few
situations. wherein recoveries by the
employers, would be impermissible in law:
i. Recovery from employees belonging to
Class III and Class IV service (or Group C
or Group D service)ii. Recovery from retired employees, or
employee who are due to retire within one
year, of the order of recovery.
iii. Recovery from employees, when the
excess payment has been made for period
more than 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. ”
Patna High Court CWJC No.11407 of 2024 dt.20-12-2024
8/14
8. The Hon’ble Supreme Court in the case of Rafiq
Masih (Supra) has summarized some of the situation wherein
the recovery by the employer would be impermissible in law.
While enumerating the situations, the Apex Court has also
mentioned in paragraph no.18 of the judgment that it is not
possible to postulate all situations of hardships which would
govern the employee on the issue of recovery where the
payments have mistakenly been made by the employer in
absence of their entitlement. There may be various other
situation which may create hardship to the employee on the
issue of recovery.
9. The Supreme Court in the case of Sahib Ram v.
State of Haryana and Others reported in 1999 Supp (1) SCC
18 has restrained recovery of payment which was given under
the upgraded pay scale on account of wrong construction of
relevant order by the authority concerned, without any
misrepresentation on part of the employees by making
following observations:
“5. Admittedly the appellant does not possess the required
educational qualifications. Under the circumstances the
appellant would not be entitled to the relaxation. The
Principal erred in granting him the relaxation. Since the
date of relaxation, the appellant had been paid his salary
on the revised scale. However, it is not on account of any
misrepresentation made by the appellant that the benefit of
the higher pay scale was given to him but by wrong
construction made by the Principal for which the appellant
Patna High Court CWJC No.11407 of 2024 dt.20-12-2024
9/14cannot be held to be at fault. Under the circumstances the
amount paid till date may not be recovered from the
appellant. The principle of equal pay for equal work would
not apply to the scales prescribed by the University Grants
Commission. The appeal is allowed partly without any
order as to costs.”
10. In Col. B.J. Akkara (Retd.) v. Government
of India and Others reported in (2006) 11 SCC 709, the
Supreme Court held as under:
“27. The last question to be considered is whether relief
should be granted against the recovery of the excess
payments made on account of the wrong interpretation/
understanding of the circular dated 7−6−1999. This Court
has consistently granted relief against recovery of excess
wrong payment of emoluments/allowances from an
employee, if the following conditions are fulfilled (vide
Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 :
1995 SCC (L&S) 248], Shyam Babu Verma v. Union of
India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994)
27 ATC 121], Union of India v. M. Bhaskar [(1996) 4 SCC
416 : 1996 SCC (L&S) 967] and V.Gangaram v. Regional
Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652]):
(a) The excess payment was not made on account of any
misrepresentation or fraud on the part of the employee. (b)
Such excess payment was made by the employer by
applying a wrong principle for calculating the
pay/allowance or on the basis of a particular interpretation
of rule/order, which is subsequently found to be erroneous.
11. In Syed Abdul Qadir and Others v. State of
Bihar and Others reported in (2009) 3 SCC 475 excess
payment was sought to be recovered which was made to the
appellants−teachers on account of mistake and wrong
interpretation of prevailing Bihar Nationalized Secondary
School (Service Conditions) Rules, 1983. The appellants
Patna High Court CWJC No.11407 of 2024 dt.20-12-2024
10/14
therein contended that even if it were to be held that the
appellants were not entitled to the benefit of additional
increment on promotion, the excess amount should not be
recovered from them, it having been paid without any
misrepresentation or fraud on their part. The Supreme Court
held that the appellants cannot be held responsible in such a
situation and recovery of the excess payment should not be
ordered, especially when the employee has subsequently
retired. The Court observed that in general parlance, recovery is
prohibited by courts where there exists no misrepresentation or
fraud on the part of the employee and when the excess payment
has been made by applying a wrong interpretation/
understanding of a Rule or Order. It was held thus:
“59. Undoubtedly, the excess amount that has been paid to
the appellant teachers was not because of any
misrepresentation or fraud on their part and the appellants
also had no knowledge that the amount that was being paid
to them was more than what they were entitled to. It would
not be out of place to mention here that the Finance
Department had, in its counter−affidavit, admitted that it
was a bona fide mistake on their part. The excess payment
made was the result of wrong interpretation of the Rule
that was applicable to them, for which the appellants
cannot be held responsible. Rather, the whole confusion
was because of inaction, negligence and carelessness of the
officials concerned of the Government of Bihar. Learned
counsel appearing on behalf of the appellant teachers
submitted that majority of the beneficiaries have either
retired or are on the verge of it. Keeping in view the
peculiar facts and circumstances of the case at hand and to
avoid any hardship to the appellant teachers, we are of the
view that no recovery of the amount that has been paid in
Patna High Court CWJC No.11407 of 2024 dt.20-12-2024
11/14excess to the appellant teachers should be made.”
12. The petitioner, who is a sub-inspector and is
non-gazetted officer, a class III employee, I find that the
undertaking which has been given and the law laid down by the
Apex Court in case of Jagdev Singh (Supra) can be
differentiated, considering the fact that the respondent
(employees), who was Judicial Officer in the State of Haryana,
Superior Judicial Service, which is a class II post and his pay
scale was Rs.10000-325-15200 (Senior scale) and the Apex
Court after considering the entirety of the matter and the facts
of the said case, as well as, the law laid down in the case of
Rafiq Masih (Supra) has turned down the relief which was
granted by the High Court on the ground that the exception
which has been laid down in the case of Rafiq Masih (Supra)
will have no application to a situation such as the present
wherein undertaking was specifically furnished by the officer at
the time when his pay was initially revised accepting that any
payment found to have been made in excess would be liable to
be adjusted. In the said judgment, clarification has been made
in paragraph nos.10, 11 and 12 to the extent that the principle
enunciated in Rafiq Masih (Supra) cannot apply to a situation
such as in the facts of the said case.
Patna High Court CWJC No.11407 of 2024 dt.20-12-2024
12/14
13. A perusal of the order of the Hon’ble Apex Court
in the case of Jagdev Singh (Supra) would show that the
Hon’ble Supreme Court had made the observations in respect of
a Civil Judge, who was not a Class-III and Class -IV employee.
As the Apex Court had made its observations regarding the
undertaking given by the employee in category (ii) of the
citation referred to therein which pertained to “recovery from
retired employees, or employees who are due to retire within
one year, of the order of recovery” and not a situation
mentioned against category (i) that related to “recovery from
employees belonging to Class-III and Class-IV service (or
Group ‘C’ and Group ‘D’ service’). I am of the view that the
ratio laid down in case of Rafiq Masih (Supra) is not
applicable in case of class II officer and as such the
respondents’ contention to defend its order cannot be accepted.
14. I find it proper to make differentiation between
the judicial officers, who are posted as Superior Judicial
Service and any undertaking which officer of such a rank is
required to be honored by them. In the present case, petitioner
who is a class III employee and differentiation as has been
made by the Apex Court in case of Jagdev Singh (Supra)
being in case of Class II employee, the ratio will not be
Patna High Court CWJC No.11407 of 2024 dt.20-12-2024
13/14
applicable in the present case, i.e., in case of non-gazetted
employee, even if such undertaking was taken while the
petitioner had filled for option as per the requirement of Rule
6(2). The petitioner is now retired and for the said reason, his
pensionary benefit has been reduced after recovery of an
amount of Rs.2,13,908/-, resulting from the effective date when
such recovery has been made from the petitioner leading to
fixation of his pension at a reduced rate after his retirement. It is
made clear that the petitioner had retired on 31.07.2023 and
order of recovery has been made on 30.11.2023. If such
recovery is allowed to go then the same will put hardship to the
petitioner to meet his day to day life expenses.
15. According to this Court, no recovery can be
made from a Class-III employee, who has not misappropriated
or misrepresented the government fund and incorrect fixation is
on the part of the Department. Therefore, the
order/communication contained in Letter No.8422 dated
30.11.2023 (Annexure P-4), Letter No.2798 dated 08.12.2023
(Annexure P-2), Letter No.RPAO/CISF/MHA/RAN/PENII/23-
24/218, dated 12.10.2023 (Annexure P-3) and Letter No.629,
dated 18.03.2024 (Annexure P-6) are hereby set aside and
quashed.
Patna High Court CWJC No.11407 of 2024 dt.20-12-2024
14/14
16. The authorities under such circumstances are
directed to rectify in view of the observation made hereinabove
and fix the pension of the petitioner on the pay scale, which he
was entitled on the date of his retirement and terminal benefits,
as the petitioner is entitled for the same, which must be paid
forthwith.
17. The writ petition is allowed.
18. There shall be no order as to costs.
(Purnendu Singh, J)
Sanjay/-
AFR/NAFR AFR CAV DATE NA Uploading Date 24.12.2024 Transmission Date NA