- (1.) THIS appeal has been preferred against the order dated 23.3:2009 passed by the learned Single Judge in W.P.(S) No. 5303/2004, by which the writ petition was allowed and the impugned order under which the respondent Jharkhand State Electricity Board sought to recover an amount of Rs. 1,01,677/ - from the petitioner's (respondent herein) retiral benefit was quashed and set aside. This order was passed relying upon a Full Bench decision of this Court reported in 2008(1) JCR 5 (Sita Ram & Ors. V/s. Radhey Shyam), wherein it has been held that recovery of any amount from an employee after his superannuation would not be permissible in absence of any proof of misrepresentation or fraud on the part of the employee.
(2.) THIS appeal has been preferred by the appellant Jharkhand State Electricity Board. Learned counsel for the appellants submitted that the petitioner/respondent herein was guilty of misrepresentation as he was posted in the Accounts Section and was drawing the scale of pay to which he was not entitled to and that apart he also received increments on the said scale of pay which was not permissible. However, it is an admitted position that the appellant -Board had not sought any explanation from the respondent, nor issued any show cause notice to him, while he was in service indicating that he had drawn increments to which he was entitled to. It is only when the petitioner/respondent retired from service, the appellant passed an order for recovery of an amount alleging that he had misrepresented and therefore, it was submitted that as the respondent was guilty of misrepresentation because he had drawn increments on the scale of pay to which he was not entitled to, the order of recovery for a sum of Rs. 1,01,677/ - was perfectly justified. Thus, in sum and substance, the counsel has submitted that the allegation levelled by the appellant Board against the respondent to the effect that he had misrepresented ought to have been accepted by this Court straightway even though no enquiry or show cause notice was served to the petitioner, while he was in service. The allegation of misrepresentation or fraud is an extremely serious allegation and would definitely amount to misconduct but this charge of misconduct cannot straightway be accepted by any Court without any enquiry or scrutiny in this regard and more so, when a person has retired. The Full Bench decision of this Court referred to hereinbefore has clearly. held that no amount from the retiral benefit of an employee can be recovered unless misrepresentation or fraud is reflected from his conduct, but the Full Bench decision is, no doubt, silent on the point as to at what stage the misrepresentation has to be proved but a reasonable inference.will have to be drawn that if an allegation of misrepresentation is alleged by the management or employer, the same obviously will have to be proved normally when the person is still in service and if the rules permitted that the charge of misrepresentation can be proved even after his retirement, then obviously the order of recovery could not have been passed without the charge of misrepresentation having been proved. In the instant matter, the counsel's expectation that this Court should straightway infer misrepresentation by the respondent merely because he was posted in the Accounts Section and as such, he was instrumental in receiving increments to which he was not entitled to, cannot be accepted as we have already stated that in absence of any proof of misrepresentation, the order of recovery would not be justified, which view finds support from the Full Bench decision of this Court.
(3.) THE appellant Board having not proved the charge of misrepresentation against the respondent, was not justified in issuing order of recovery. Therefore, we refuse to interfere with the order passed by the learned Single Judge by which the order of recovery has been quashed and set aside. The appeal, under the circumstance, is dismissed at the admission stage itself.;