IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14662 of 2009 1. ASHOK KUMAR S/O LATE BISHESHWAR PRASAD RETIRED ACCOUNTS ASSISTANT, SODA GODOWN ROAD , BRAHMPURA, NEAR LAXMI CHOWK, P.O.& P.S. M.I.T., MUZAFFARPUR, DISTT- MUZAFFARPUR Versus 1. THE BIHAR STATE ELECTRICITY BOARD THROUGH ITS CHAIRMAN VIDYUT BHAWAN, BAILEY ROAD, PATNA 2. THE SECRETARY, BIHAR STATE ELECTRICITY BOARD VIDYUT BHAWAN, BAILEY ROAD, PATNA 3. THE FINANCIAL CONTROLLER NO.1, BIHAR STATE ELECTRICITY BOARD VIDYUT BHAWAN, BAILEY ROAD, PATNA 4. THE DEPUTY DIRECTOR OF PERSONNEL , BIHAR STATE ELECTRICITY BOARD VIDYUT BHAWAN, BAILEY ROAD, PATNA 5. THE GENERAL MANAGER- CUM- CHIEF ENGINEER, TRANSMISSION CIRCLE P.O KHABRA, MUZAFFARPUR 6. ELECTRICAL SUPERINTENDING ENGINEER, TRANSMISSION CIRCLE P.O KHABRA, MUZAFFARPUR 7. PERSONNEL OFFICER, TRANSMISSION CIRCLE KHABRA,MUZAFFARPUR 8. THE JOINT SECRETARY, BIHAR STATE ELECTRICITY BOARD, VIDYUT BHAWAN, BAILEY ROAD, PATNA ----------- 05. 11.02.2010 The learned counsel for the petitioner submits that petitioner confines his prayer in this writ application against the recovery of a sum of Rs.1,05,120.30 paisa from the sanctioned amount of the gratuity amounting to Rs. 2,32,205. 00/- vide letter no. 257 dated 27.03.2006 (Annexure- 13) and letter no. 1928 dated 07.08.2009 (Annexure- 2). It is submitted that while the petitioner was in service on the post of Juniors Accounts Clerk, he was allowed the increments admissible to the selection grade, later on being granted promotion to the post of Accounts 2 Assistant he was allowed promotional benefits. The respondent – Board took the decision that the petitioner was not entitled for grant of promotional benefit. It is further submitted that upon superannuation of the petitioner from service, the gratuity Rs. 2,32,205/- was sanctioned calculated on the basis of emoluments which the petitioner was getting at the time of his retirement. The petitioner earlier approached this court through writ petition vide C.W.J.C. No. 13668 of 2004 which was disposed of on 29th of November 2005 vide Annexure-11 whereby the issue with regard to pay fixation as also the recovery from the gratuity vide memo No. 2310 dated 28.11.2003 was remitted back to the Finance Controller of the Board for passing a fresh order providing an opportunity of hearing to the petitioner. The petitioner approached the Finance Controller and filed his representation which was disposed of by order and communicated to the petitioner vide letter no. 257 dated 27th of March2009 (Annexure-13) whereby it was indicated that the petitioner’s pay on his promotion to the post of Accounts Assistant was wrongly fixed for which he was not entitled and further upheld the previous decision of the Board to recover the excess amount to the tune of Rs.1,05,120.30 paisa paid to the petitioner on account of such wrong fixation. The said 3 recovery was directed to be made from the retiral dues of the petitioner. Petitioner agitated the matter before the Chairman of the Board and filed an appeal against the order which was also rejected and communicated to the petitioner vide letter no. 1928 dated 07.08.2009 as contained in Annexure-2. The petitioner challenges the order on the ground that three increments which were allowed to the petitioner in the Selection Grade were correctly allowed as given to his juniors. The promotional benefit on his promotion also allowed as per rule, as such, it is not correct on the part of the Board to say that while allowing the promotional benefit on his promotion to the post of Accounts Assistant, increments earlier allowed to the petitioner while he was junior Accounts Clerk ought to have been withdrawn. It is further submitted that moreover notwithstanding the above, the promotional benefit which the petitioner was given on his promotion, was not effected on account of any misrepresentation or practicing any fraud for getting such benefit as such, petitioner cannot be held responsible for the alleged grant of promotional benefit to the petitioner and therefore, no amount was recoverable from the gratuity and the Board deserves to be directed to refund back the aforesaid amount with interest. 4 Learned counsel for the Board, on the other hand, submits that while granting the promotion to the petitioner from the post of Junior Accounts Clerk to the Accounts Assistant, earlier three increments granted to the petitioner in the selection grade were to have been withdrawn while fixing the promotional benefit. The same having not done the petitioner availed excess pay, to which he was not entitled under the rules. That being the position, the order directing for recovery of the excess amount is correct in law. As a matter of fact, a sum of Rs.1,000 per month was deducted from the salary of the petitioner in the last three months prior to his retirement and remaining amount was being deducted from the gratuity sanctioned to the petitioner. However, the assertion of the petitioner that the aforesaid promotional benefit on his promotion to the post of Account Assistant, was not on account of any fraud or misrepresentation practicing upon the concerned authorities of the Board is not controverted. The stand is that since the petitioner is not entitled to receive that amount and more so, while the petitioner himself was in Accounts department, he was supposed to know that he is not entitled on account of benefit given to him on his promotion increments were already been given to him while he was on the post of Junior Accounts Clerk. 5 Considering the submission of the parties and their respective pleadings, since the petitioner has confined his prayer only with regard to the recovery and as such this court is not expressing any opinion as to the entitlement of the promotional benefits allowed to the petitioner while promoting to the post of Accounts Assistant. As regards recovery, the law is well settled through various judicial pronouncements that after retirement the excess amount of salary, if any, made to the employees concerned in absence of any misrepresentation or fraud alleged or found to be proved, the recovery is not permissible in law from the retiral dues. It is not necessary to refer various decisions. However, a reference may be made to the decision of the Apex Court in the case of Syed Abdur Kadir Versus State of Bihar reported in 2009 (3) Supreme Court Cases page 475. Considering the above, this court finds that the direction of the respondent – Board for recovery of the aforesaid amount of Rs.1,05,120.30 paisa from the gratuity payable to the petitioner, is not justified in law and as such since the amount has already been recovered from the gratuity amount, the respondent – Board is directed to refund back the amount to the petitioner with statutory interest expeditiously, 6 preferably within a period of ten weeks on receipt/production of certified copy of the order. The writ application stands disposed of with the above observations/directions. Jagdish ( Shailesh Kumar Sinha, J.)