The State Of Jharkhand & Ors. vs Tarkeshwar Prasad Singh & Anr.

Per: Rajesh Shankar, J.

The present Letters Patent Appeal is directed against the learned Single Judge’s judgment/order dated 31.07.2024 passed in W.P.(S) No. 3005 of 2016, whereby the writ petition filed by the 1^st respondent (original writ petitioner) has been allowed by setting aside the reasoned order as contained in memo no.282 dated 21.04.2016 as well as the office order as contained in memo no.283 dated 21.04.2016, both, passed by the Superintending Engineer, Rural Development Department (Rural Works Affairs) Work Circle, Dumka (the appellant no.4 herein), directing recovery of excess payment made to the 1^st respondent after cancelling all the promotions granted to him. The appellants have further been directed by the learned single Judge not to recover any amount from the 1^st respondent as well as not to register FIR against him. It has also been directed to release entire retiral benefits in favour of the 1^st respondent within a period of six weeks from the date of passing of the order.

The facts of the case as emanating from the writ petition is that the 1^st respondent was appointed on the post of ‘Tracer’ by an order of the Superintending Engineer, Rural Engineering Organization, Works Circle, Bhagalpur vide letter no.108 dated 13.01.1975 and, accordingly, he joined the said post on 14.01.1975. Subsequently, he was provisionally promoted on the vacant post of Junior Accounts Clerk vide order as contained in memo no.295 dated 11.02.1980 issued by the Superintending Engineer, Rural Engineering Organization, Works Circle, Bhagalpur.

However, vide order as contained in letter no.6076 dated 16.11.1985, a direction was issued by the Chief Engineer, Rural Engineering Organization, Department of Road Construction, Government of Bihar, Patna to the effect that one Radha Harijan, ‘Treasure Keeper’ be promoted to the post of ‘Junior Accounts Clerk’ and if the said post was already filled up by any person belonging to the category of non-scheduled caste, then the said person be reverted or removed for promoting said Radha Harijan.

Thereafter, the 1^st respondent was reverted to the post of ‘Tracer’ vide office order as contained in memo no.214 dated 20.01.1986. However, the Chief Engineer, Department of Rural Works, Chhotanagpur Sub-division, Ranchi recalled the earlier order dated 16.11.1985 vide letter no.113 dated 05.05.1987 and, thereafter, the 1^st respondent was restored to the post of ‘Junior Accounts Clerk’ with effect from 11.02.1980. Subsequently, his appointment on the said post was made permanent vide office order as contained in memo no.476 dated 20.05.1987. He was also granted 1^st and 2^nd ACP with effect from 09.08.1999 and 11.02.2004, respectively.

The 1^st respondent was put to suspension vide letter no.239 dated 04.03.2011 and was issued chargesheet vide memo no. 363 dated 02.04.2011 wherein altogether 14 charges were framed against him including the charge of illegally holding the post of Accounts Clerk and drawing salary for the said post. Thereafter, departmental enquiry was initiated against the 1^st respondent in which some of the charges were proved against him and vide office order as contained in Memo No.2006 dated 20.10.2011 issued under the signature of the Chief Engineer, Department of Rural Works, Government of Jharkhand (appellant no.3 herein) he was imposed punishment of censure and stoppage of two increments without cumulative effect.

The appellant no.2, vide office order no.92 bearing memo no.1623 dated 11.07.2013 took a decision to lodge an F.I.R. against the 1^st respondent which resulted in institution of Jamtara P.S. Case No.337 of 2013 and Dumka P.S Case No. 220 of 2014.

The 1^st respondent superannuated from service on 31.07.2013 and thereafter a writ petition being W.P.(S) No. 6109 of 2013 was filed by him, seeking post retiral dues and other arrears of salary including the benefit of 3^rd MACP. The said writ petition was disposed of vide order dated 11.11.2013 directing the 1^st respondent to file a fresh representation before the appellant no.3 for redressal of his grievances, who, in turn, was also directed to take an informed decision on the representation of the 1^st respondent in accordance with law after due verification of his service records.

Thereafter, the 1^st respondent filed Contempt Case (Civil) No.152 of 2014, alleging non-compliance of the order dated 11.11.2013 and during pendency of the said case, the appellant no.4 passed a reasoned order as contained in Memo No.282 dated 21.04.2016 taking decision to revive the order as contained in letter no.214 dated 20.01.1986 issued by the Superintending Engineer, Rural Engineering Organization, Works Circle, Bhagalpur and, accordingly, to recover excess payment of salary made to the 1^st respondent over and above the salary received with respect to the original post of ‘Tracer’. On the same date i.e. 21.04.2016, the appellant no.4 also issued the office order as contained in memo no.283 whereby all the promotions given to the 1^st respondent were cancelled and the excess payment made to him over and above the salary received with respect to the original post of ‘Tracer’ was directed to be recovered.

The 1^st respondent then filed another writ petition being W.P.(S) No.3005 of 2016 which was allowed vide order dated 31.07.2024 (impugned herein), whereby the reasoned order as contained in memo nos.282 and the office order bearing memo no.283, both, dated 21.04.2016 passed by the appellant no.4 were set aside, directing the appellants not to recover any amount from the 1^st respondent. It was further directed that no FIR would be lodged against the 1^st respondent and his entire retiral benefits must be released in his favour within a period of six weeks from the date of passing of the order, failing which, the department would be liable to pay penal interest @ 7% per annum from the date of receipt of the said order.

The learned counsel for the appellants submits that the learned Single Judge has failed to appreciate the fact that the 1^st respondent was wrongfully promoted on non-cadre post of Junior Accounts Clerk without following due procedure of law. The said post was reserved for the candidate belonging to Scheduled Caste but due to fraud and misrepresentation on the part of the 1^st respondent, he continued on the said post despite reversion to the post of ‘Tracer’.

It is further submitted that illegal promotion of the 1^st respondent from the post of ‘Tracer’ to ‘Junior Accounts Clerk’ was kept in abeyance vide Order no.257 dated 25.08.1987 issued by the Reservation Commissioner-Cum-Principal Secretary, Cabinet Secretariat, Government of Bihar, Patna. Despite that the 1^st respondent continued to hold the post of ‘Accounts Clerk’ without any authority of law and as such the order of recovery regarding excess payment made to him was legal and justified which has erroneously been quashed by the learned Single Judge vide impugned order dated 31.07.2024.

It is also submitted that vide letter no.177 dated 26.07.1989 of the Joint Secretary to the Government, Department of Personnel and Administrative Reforms, Government of Bihar, the order dated 25.08.1987 was recalled. The said letter dated 26.07.1989 was, in fact, found to be fake and suspicious by the departmental committee constituted under the Chairmanship of the Engineer-in-Chief. Such fact was mentioned in the office order no.92 bearing memo no.1623 dated 11.07.2013 issued by the appellant no.2 and, therefore, the promotion given to the 1^st respondent from the post of ‘Tracer’ to ‘Junior Accounts Clerk’ was declared nullity vide order bearing memo no.283 dated 21.04.2016. The said crucial aspect of the matter has not been duly appreciated by the learned single Judge while passing the impugned judgment/order.

It is contended that no prayer was made in the writ petition for declaring the registration of F.I.R as illegal and as such the learned Single Judge has exceeded its jurisdiction while issuing direction not to register F.I.R. against the 1^st respondent.

It is further argued that the 1^st respondent had used forged and fabricated document to unlawfully get promotion to the post of Junior Accounts Clerk and had also got salary for the said post. As such the 1^st respondent was rightly reverted to his original post of ‘Tracer’ and, consequently, the order for recovery of excess payment of salary made to the 1^st respondent was passed vide memo no.283 dated 21.04.2016.

It is also urged that the learned Single Judge has not given any finding with respect to the fraud and misrepresentation committed by the 1^st respondent in getting promotion to the post of ‘Junior Accounts Clerk’.

On the contrary, the learned counsel for the 1^st respondent submits that the action of the appellants in cancelling the promotion given to the 1^st respondent in the year 1980 and issuing the order for recovery of excess payment of salary allegedly made to him after more than 35 years of service that too without any notice, hearing or proceedings, is contrary to law. As such, the learned Single Judge has rightly passed the impugned judgment/order order dated 31.07.2016 and the same needs no interference of this Court.

It is further submitted that after retirement of a State Government employee, recovery of the paid amount can only be made by following the procedure prescribed under rule 43(b) of the Jharkhand Pension Rules, 2000, however, no such procedure was followed while issuing the order for recovery of excess amount allegedly paid to the 1^st respondent.

It is also submitted that the departmental proceeding for the similar charge was initiated against the 1^st respondent in which the punishment of censure and stoppage of two increments without cumulative effect was imposed upon him. As such, the second set of penalty for the similar charge is hit by the principle of double jeopardy.

Heard the learned counsel for the parties and perused the materials available on record.

The learned counsel for the appellants has put much emphasis to the argument that the 1^st respondent was illegally granted promotion to the post of ‘Junior Accounts Clerk’ as the said post was reserved for the Scheduled Caste candidate and also that the 1^st respondent continued to hold the said post by committing fraud and misrepresentation. As such, the same was rightly cancelled and payment of excess salary made to the 1^st respondent over and above the salary admissible to the post of ‘Tracer’ was directed to be recovered from him.

It transpires from the record that the 1^st respondent superannuated from service on 31.07.2013 and on the said date, no departmental proceeding was pending against him with respect to the allegation of illegally holding the post of ‘Junior Accounts Clerk’ and drawing salary attached to the said post. During his service tenure, a memo of charge in ‘Prapatra-Ka’ was issued to him by the appellant no. 4 vide letter as contained in memo no.363 dated 02.04.2011 wherein one of the charges against him was of illegally holding the post of ‘Junior Accounts Clerk’ and getting the salary thereof. Moreover, a full-fledged departmental proceeding with respect to the charges framed against him was initiated against the 1^st respondent wherein one Tarini Prasad Mandal, Technical Advisor, Rural Works Department, Works Circle, Dumka was appointed as Conducting Officer. After inquiry, some of the charges were found proved against him for which he was imposed punishment of censure and stoppage of two annual increments without cumulative effect.

Rule 43(b) of the Jharkhand Pension Rules, 2000 provides that the State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or a judicial proceeding. The State Government has also the right to recover the whole or part of any pecuniary loss caused to the Government from pension of the concerned pensioner, if such loss is caused to the government by misconduct or negligence during his service tenure including the service rendered by him on reemployment after retirement.

The proviso of rule 43(b) deals with certain pre-conditions for initiation of departmental proceedings and the period of limitation within which such proceedings can be initiated. It provides that if departmental proceeding was not instituted while the government servant was on duty either before retirement or during re-employment, the same shall be instituted only with the sanction of the State Government that too for an event which took place not more than four years before the institution of such proceeding. It further provides that such proceeding shall be conducted by the enquiry officer in accordance with the procedure applicable to a proceeding on which an order of dismissal from service may be made. It also adds that departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or with effect from an earlier date, if the government servant has been placed under suspension on such date.

Thus, there is a mechanism provided under the Jharkhand Pension Rules, 2000 for recovery of any amount from the pension of a retired government servant. The recovery of any amount from pension is permissible only when a finding is recorded either in departmental inquiry or judicial proceeding that an employee had committed grave misconduct in the discharge of his duty while in his office. However, in the case in hand, there is no finding either in departmental proceeding or in judicial proceeding that the 1^st respondent was guilty of illegally holding the post of ‘Junior Accounts Clerk’. The appellants, rather straightway issued the order of recovery of the alleged excess payment made to the 1^st respondent. Though, two FIRs. were lodged against the 1^st respondent, however there is no finding of the competent criminal court as yet that he was illegally holding the post of ‘Junior Accounts Clerk’.

The Hon’ble Supreme Court in the case of State of Punjab & Others Vs. Rafiq Masih (White Washer) and Others, reported in (2015)4 SCC 334, has explained the situations under which the recovery of excess payment made to an employee is not permissible under the law. It has been observed, inter alia, as under: -

In the present case also, the 1^st respondent was a Class-III employee and superannuated from service on 31.07.2013. He had allegedly been paid excess amount as salary for the post of Junior Accounts Clerk since 11.02.1980 and the order of recovery was passed vide office order as contained in memo no.283 dated 21.04.2016. Thus, the order of recovery of excess payment made to the 1^st respondent was passed after more than 36 years. In view of the aforesaid judgement of the Hon’ble Supreme Court, even if it is assumed that certain amount was paid to the 1^st respondent in excess of his entitlement, the same cannot be recovered from him.

The learned counsel for the appellants has assiduously argued that the law laid down in the case of Rafiq Masih (Supra.) is applicable only in the cases where the excess amount was mistakenly paid to an employee, however in the present case, excess payment of salary was made to the 1^st respondent due to fraud and misrepresentation on his part.

We do not find any substance in the said argument. Though the claim of the appellants is that letter no.177 dated 26.07.1989 said to have been issued under the signature of the Joint Secretary, Department of Personnel and Administrative Reforms, Government of Bihar was a forged one, no inquiry was conducted on factual aspect during the service tenure of the 1^st respondent after providing him due opportunity of hearing. Even after his retirement, a proceeding under Rule 43(b) of the Rules, 2000 was not initiated against him. It is a well settled principle of law that the right to property is a constitutional right under Article 300A of the Constitution of India and the same cannot be taken away without due process of law. Thus, a person cannot be deprived of right to property (salary in this case) for mere allegation of forgery without any finding of a competent authority/Court of Law arrived at in a lawful proceeding.

Another aspect in the matter is that a full-fledged departmental enquiry was conducted with respect to the allegation of illegally holding the post of ‘Junior Accounts Clerk’ and in the said departmental proceeding, the punishment was already awarded to the 1^st respondent. As such, second punishment for the same charge certainly attracts the principle of double jeopardy. Article 20(2) of the Constitution of India provides that no person shall be prosecuted and punished for the same offence more than once.

In the case of Lt. Governor, Delhi & Others Vs. H.C. Narinder Singh, reported in (2004) 13 SCC 342, the Hon’ble Supreme Court has held that second penalty based on the same cause of action would amount to double jeopardy.

Thus, we do not find any infirmity in the order of the learned Single Judge whereby the order of recovery of payment made to the 1^st respondent over and above the salary received for the post of ‘Tracer’ has been quashed and the appellants have been directed to make payment of entire retiral dues of the 1^st respondent.

We, however, wish to observe that the part of impugned order dated 31.07.2014 whereby the learned Single Judge has directed not to lodge FIR against the 1^st respondent suffers from infirmity as the same does not precede any reason. There is no law which precludes the authorities from instituting any FIR against an employee with respect to any alleged act of criminal culpability done during his service tenure. Moreover, when an FIR is lodged, the criminal court provides due opportunity to both the sides to present evidences. An accused has also the right of hearing before pronouncement of judgment. As such, by merely lodging an FIR, no prejudice is caused to an employee. In fact, in the present case, two FIRs. were already lodged in the year 2013 and 2014 as mentioned in foregoing paragraphs.

For the reasons as aforesaid, the direction contained in the judgment/order dated 31.07.2024 to the extent of not registering any FIR against the 1^st respondent is set aside. Consequently, the appellants are at liberty to pursue the criminal cases being Jamtara P.S Case No.337 of 2013 and Dumka P.S Case No.220 of 2014 already lodged against the 1^st respondent, if the same are still pending.

This appeal is, accordingly, disposed of in above terms.

Pending I.As., if any, are also disposed of.