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Ashok Kumar Saxena v. The Regional Manager, U.P.S.R.T.C. Region Moradabad & Others - SPECIAL APPEAL No. 1094 of 2006  RD-AH 1951 (25 January 2006)
Special Appeal No. 1094 of 2006
Ashok Kumar Saxena .....Appellant
Regional Manager, UPSRTC, Region
Moradabad, Moradabad and others .....Respondents
Hon'ble S. Rafat Alam, J.
Hon'ble Sabhajeet Yadav, J.
This special appeal, under the Rules of the Court, arises from the judgment dated 16th October, 2003 passed by the Hon'ble Single Judge dismissing petitioner-appellant's Civil Misc. Writ Petition No. 44557 of 2006.
We have heard Mr. Rajeshwar Tiwari, learned counsel appearing for the appellant and Mr. S.R.Singh, learned counsel appearing for the UPSRTC.
It appears that vide order dated 28.5.2005 respondent no.2 passed an order for recovery of the amount paid to the appellant in excess of his salary. The aggrieved appellant challenged the said order in Civil Misc. Writ Petition No. 9687of 2006, which was disposed of vide judgment dated 16.2.2006. The operative portion of the aforesaid judgment is as under:
"Since the impugned order has already taken effect to and the recoveryis being made of the alleged excess amount said to have been paid to the petitioner from him, it is directed that the petitioner may make a comprehensive representation along with certified copy of this order before the respondent no.2 within a period of 3 weeks from today. Respondent no.2 after giving an opportunity of being heard to the petitioner on his representation shall decide the same by a reasoned and speaking order in accordance with law in further period of two months. If it is found that the deductions from the salary of the petitioner have been wrongly made, the petitioner shall be entitled to refund of the excess amount deducted from his salary forthwith interest of the at the rate of 6% per annum.
With the aforesaid direction, the petition is disposed of finally. No order as to cost."
The appellant, pursuant to the above direction, filed a detailed representation on 11.3.2006 which has been rejected vide order dated 11.5.2006 wherein it has been found that the appellant was wrongly granted time bound scale with effect from 1.6.1991on completion of 10 years satisfactory service because the said order was passed in ignorance of the fact that he was awarded punishment of withholding of three increments with cumulative effect in the year 1993 and was also not allowed full salary during the period of suspension except the subsistence allowance and thus, he could not be given time bound scale with effect from 1.6.1991. Accordingly, the payment made in excess was ordered to be recovered vide orders dated 30th December, 2004 and 28.5.2005. While considering the representation of the appellant pursuant to the order of this Court dated 16.2.2006 an opportunity of hearing was also afforded to the petitioner-appellant on 9.5.2006, 10.5.2006 and 11.5.2006 and thereafter the respondents reiterated its earlier decision.
It is admitted position that the petitioner-appellant was placed under suspension on account of certain charges and in the proceeding he was ultimately found guilty of the charges and hence punishment of withholding three increments was inflicted. It is also admitted position that the said order has attained finality. However, while giving time bound scale, his order of punishment escaped attention of the concerned authorities and, therefore, time bound scale was wrongly granted in the year 1991. If any payment is wrongly or illegally paid to an employee due to ignorance of fact, it is always open to the department to recover the same. In the case in hand also, the appellant was not eligible in the year 1991 to get time bound scale because of the punishment awarded to him. We are of the view that there is no fault in the order for recovery of the said amount. Besides that the Hon'ble Single Judge has noticed in the judgment under appeal that the appellant has not challenged the order dated 11.5.2006 rejecting his representation and even on query the learned counsel submitted that it was not necessary. By the order dated 11.5.2006 the respondent authority has disposed the representation of the petitioner-appellant in compliance to this Court's order dated 16.2.2006 in Civil Misc. Writ Petition No. 9687 of 2006 preferred by the appellant against the order of recovery of the excess amount paid to him in instalments. The said order was not quashed in Civil Misc. Writ Petition No. 9687 of 2006 and only liberty was given to the petitioner-appellant to file representation, which was to be decided by the concerned respondent after affording opportunity of hearing to the appellant by a reasoned order and in accordance with law. Thus, the Hon'ble Single Judge has rightly observed in the judgment under appeal that no relief can be granted to the appellant without setting aside the order dated 11.5.2006 rejecting his representation. Learned counsel for the appellant even before us also could not point out any error in the order calling for interference by this Court. Thus, we do not find any fault in the order of the Hon'ble Single Judge.
At this stage learned counsel for the appellant submits that liberty may be given to the appellant to move an application before the Hon'ble Single Judge seeking amendment in the writ petition. We, therefore, provide that it would be open to the appellant to move appropriate application in Civil Misc. Writ Petition No. 44557 of 2006 before the Hon'ble Single Judge.
With the above observation, the special appeal stands dismissed.
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