Rajnikant Rathod vs State Of Chhattisgarh And Ors

P. Sam Koshy, J

The challenge in this petition is to the communication dated 07.02.2019 whereby the Additional District & Sessions Judge, for an on behalf of the

District Judge, Jagdalpur, has intimated the petitioner that the Joint Director, Treasury, Accounts and Pension have asked for recovery of the

difference of wages that the petitioner has received from the date promotion i.e. 22.09.1988 till Annexure P/8 dated 07.10.2017 was passed reverting

the petitioner to the post of Peon.

The relevant facts for deciding the present writ petition is that, the petitioner was initially appointed as Peon in the Court of District & Sessions

Judge, Bastar at Jagdalpur on 30.01.1987. While working on the post of Peon, the petitioner was promoted on the post of Assistant Grade-III on

temporary basis vide order dated 22.09.1988 and subsequently the petitioner was confirmed on the said post on 07.04.1999 and continued to work on

the said post up till the order of cancellation of promotion dated 07.10.2017 was passed reverting the petitioner back on the post of Peon on the ground

that the petitioner had not been properly promoted.

The said order of cancellation of promotion of the petitioner was challenged in a separate writ petition WPS No.5038 of 2018 and which has

already been admitted by this court and the matter is sub judice.

It is relevant at this juncture to refer to the operative part of the order dated 07.10.2017 which for ready reference is reproduced herein:

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The respondents thereafter now vide order dated 07.02.2019 has intimated the petitioner in respect of the note that has been put in his service book

with regard to the recovery of the difference of wages paid to the petitioner because of erroneous promotion between the period 1988 to 2017. This

note of Joint Director as well as intimation of which to the petitioner is jointly marked as Annexure P/1 which is under challenge in the present writ

petition.

What has to be looked into is that, the order of cancellation of promotion dated 07.10.2017 clearly reflects that promotion given to the petitioner way

back in the year, 1988 on temporary post and on which post the petitioner was later on confirmed in 1999 was not on account of any misrepresentation

or false representation made by the petitioner. Neither was it, in any manner, obtained by way of suppression of material facts. This finding of the

District Judge which is reflected in the order of cancellation of promotion has not been questioned before any forum, nor has it been set aside or

cancelled by any superior authority. However, ignoring the said finding of District Judge, the respondent No.3 has made an entry in the service book

of the petitioner wherein it has been ordered that difference of wages has to be recovered from the petitioner. No specific reasons have been

assigned as to what happens to the order that was made up by the District Judge in the order of cancellation of promotion. To that extent, the note of

the Joint Director is totally erroneous and without proper application of mind.

Another aspect which compels this court to interfere with the said note as well as the correspondence made on 07.02.2019 is that, once when there

is a categorical finding that there was no misrepresentation or false representation, neither was there any suppression of material facts by the

petitioner for the purpose of getting the promotion and if the respondents themselves have promoted the petitioner which later on is found to be

erroneous, the petitioner could not be subjected to recovery of any benefit that the petitioner has bonafidely received and for which he has not been

blamed at any point of time.

It is by now well settled principles of law that unless there is a misrepresentation, suppression of material facts or fraud played by an employee in

respect of getting certain additional benefits other than that he was entitled for and if the said benefit has been extended to the employee on account

of an error on the part of employer, the monetary benefit that has been received by the said employee, under no circumstances can be recovered.

However, the respondent authorities have all the right for rectification of any error that has crept in.

In the instant case also a plain reading of order dated 07.10.2017 i.e. order of reversion, it clearly reflects that the petitioner at any point of time was

not responsible for the said promotion that he has received in the year, 1988.

Given the aforesaid facts, this court is of the opinion that the action on the part of the respondents in initiating recovery proceedings for the

difference of wages is totally uncalled for. The same being not sustainable deserves to be and hereby set aside/quashed.

Note put up by the Joint Director, Treasury, Accounts and Pension in the service book of the petitioner, therefore deserves to be quashed and it is

ordered accordingly. Likewise, covering letter issued by the District Judge to the petitioner vide his correspondence dated 07.02.2019 also for the

same reason deserves to be and is accordingly set aside.

Needless to mention that so far as reversion part is concerned, that would be subject to final outcome of the writ petition filed by the petitioner

challenging the same which is pending consideration before this court.

The petition accordingly stands allowed to the above extent.