IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7555 of 2002 IFTEKHAR AHMAD KHAN, Super Selection Grade Sectional Clerk (Retired), son of Late Shohrab Khan, resident of Mohalla-Zakki Bigha, P.O._Dalmianagar, P.S.-Dehri-on-Sone, District-Rohtas …. Petitioner Versus 1. BIHAR STATE ELECTRICITY BOARD, through its Secretary, Vidyut Bhawan, Bailey Road, Patna 2. General Manger-cum-Chief Engineer, Central Area Electricity Board, 8 Surpentine Road, Patna. 3. Deputy Director of Accounts, Central Area Electricity Board, 8-Surpentine Road, Patna. 4. Electrical Executive Engineer, Electric Supply Division, Dehri-on-Sone, District-Rohtas …. Respondents. ……… For the petitioner : Mr. R.K. Sinha, Advocate. For the B.S.E.B. : Mr. Vinay Kirti Singh. -------- O R D E R 10 17 -12-2009 Heard Mr. R.K. Sinha, learned counsel appearing for the petitioner and Mr. Vinay Kirti Singh, learned counsel appearing for the Bihar State Electricity Board. With the consent of the parties, this matter has been taken up for disposal at the stage of admission. The petitioner had filed the writ petition seeking, inter alia, quashing of the order bearing no. 3069 dated 28.3.2001 (Annexure-1), whereby the respondent no. 2 the General Manager-cum-Chief Engineer of the Electricity Board had directed for recovery of an amount of Rs. 81,711/- from the gratuity amount of the petitioner. A further direction was sought 2 for revision of pension, gratuity, leave encashment and salary as per the revised scale with effect from April, 1997 together with up to date interest on General Provident Fund calculated upto the date of actual payment. The facts briefly stated are that the petitioner was appointed as an Unskilled Khalasi in the year 1965 and was thereafter appointed as Sectional Clerk, on which post he joined on 25.7.1977. The petitioner thereafter was promoted to the Super Selection Grade Sectional Clerk and retired while serving on the said post with effect from 31.3.2000. Upon retirement the pension and gratuity was sanctioned on 28.3.2001 i.e. one year after the retirement and payments were released in May, 2001. It is stated that even the General Provident Fund amount was made belatedly after a lapse of one year and for which the petitioner is entitled to claim interest for the delayed period. Vide office order no. 308 dated 8.11.2000 (Annexure-2), the Electrical Executive Engineer, Electric Supply Division, Dehri-on-Sone, Rohtas issued orders revising the pay of the petitioner and recalling the increments sanctioned to him for the reason that he had drawn the said increments without passing the Hindi Noting and Drafting Examination during the period June, 1977 to 1993. Despite protest being raised by the petitioner, the impugned order dated 28.3.2001 (Annexure-1) came to be issued deducting Rs. 81,711/- from the gratuity amount payable 3 to the petitioner. A counter affidavit has been filed on behalf of the respondent Board and in which they have justified the impugned order showing that the petitioner was not entitled to the increments during the period from June, 1977 to 1993, as in fact he passed the Hindi Noting and Drafting Examination on 23.7.1995. It was contended that the amount of Rs. 81,711/- was an excess amount earned by the petitioner to which he was not entitled by reason of not passing the Hindi Noting and Drafting Examination. It was further contended that the petitioner passed the said examination only on 23.7.1995 and thus the increments granted earlier to the said date was not payable to him in terms of the rules of the Board and that the Board was entitled to recover the same. The position as it stands today is that the entire admissible retiral benefits to which the petitioner has been found entitled by the Board has been paid except a sum of Rs. 81,711/- which is sought to be recovered from the gratuity amount payable to the petitioner and by reason of withdrawal of the said increments, the petitioner has been paid retiral benefits on lower scale and as such, the petitioner is entitled to the revision of retiral benefits and arrears thereof. The issue which requires determination is as to whether there was any infirmity in the grant of increments to the 4 petitioner, who admittedly had passed the Hindi Noting and drafting Examination on 23.7.1995, i.e. much prior to his retirement and whether the order for recovery of the increments granted to him has lawful support. Learned counsel appearing for the petitioner submits that the admitted position is that the petitioner had passed the said examination on 23.7.1995. He further submits that the effect of passing the said examination has been considered by a Division Bench of this Court in the case of Bijay Bahadur vs. B.S.E.B. & Ors. arising from C.W.J.C.No.1007 of 1997 and in which it has been held that no sooner an employee passes the said examination he becomes entitled to all the increments. He submits that the judgment of this Court was affirmed by the Supreme court in (2000) 10 SCC 99. Learned counsel for the petitioner also assails the action of the authorities on grounds of being violative of the principles of natural justice inasmuch as the direction issued vide order dated 8.11.2000 as contained in Annexure-2 as well as the follow up action as contained in the order dated 28.3.2001 (Annexure-1) is ex parte and without giving any opportunity of hearing to the petitioner. Learned counsel thus submits that on either counts the action of the respondents and the orders impugned are unsustainable and are fit to be set aside. Learned counsel appearing for the respondent Board 5 submits that in terms of the relevant rules and circular of the Board, an employee becomes entitled to increments only consequent upon passing the said examination and not for the anterior period. He submits that as admittedly the petitioner passed his Hindi Noting and drafting examination on 23.7.1995, he was not entitled to any increments for the period prior to 23.7.1995 and as such, the entire increments drawn by the employee until the said date is recoverable from him. Learned counsel, in support of his submission, relied upon a Division Bench judgment of this Court reported in 2006 (1) PLJR 286 (Chandra Shekhar Mishra Vs. The Chairman, Bihar State Electricity Board and ors). Learned counsel thus submits that the orders warranting recovery is in accordance with law and requires no interference. I have heard the rival contentions of the parties and considered the materials on records and the judgments cited at bar. It is indisputed that the examination in question is a one time exercise and is neither in the nature of a promotional examination nor is an efficiency test rather a certification of language proficiency. The moment an employee passes the same, he becomes entitled to all the increments whether received by him until that date or not. The said issue came up for consideration before a 6 Division Bench of this Court, in the case of Bijay Bahadur (supra) and the Division Bench has held that the moment the employee passes the Hindi Noting and Drafting Examination, he becomes entitled to all the increments as if the stoppage had never taken place. Thus, the moment an employee passes the examination, the service benefits, whether or not withheld for the reasons aforesaid, becomes admissible and payable to the said employee as if the stoppage never occurred. This means that stoppage of increments by reason of non passing of the examination is neither permanent nor is by way of penalty rather is temporary and is merely kept in abeyance until passing of the examination by the employee concerned. The principle laid down in the case of Bijay Bahadur Vs. B.S.E.B. & Ors. (Supra) as upheld by the Supreme Court was followed by this court in a case arising from C.W.J.C.No.11249 of 2002 (Jagat Narain Prasad Vs. the Bihar State Electricity Board and ors) and analogous cases decided on 26.3.2005. This issue did not come up for consideration nor was contested or tested by the Division bench in the case of Chandra Shekhar Mishra Vs. Chairman, Bihar State Electricity Board & Ors. (Supra). On the other hand, the judgment of the Division Bench rendered in the case of Bijay Bahadur and Jagat Narayan 7 Prasad (supra) is conclusive on the issue as to the consequential effects on the service benefits of an employee who passes the said examination albeit belatedly and the Division Bench in no uncertain terms has held that withholding of an increment is only of a temporary nature to be released the moment the person passes the said examination. The judgment rendered by the Division Bench of this Court in the case of Bijay Bahadur and affirmed by the Supreme Court in so far as the issue of consequences flowing from the passing of the Hindi Noting and Drafting Examination is concerned, fully covers the issue in hand and has a binding precedent. This issue also came up for consideration before this Court in C.W.J.C. No. 7328 of 2006 (Asha Devi Versus the State of Bihar & Ors.). This Court by order dated 4.11.2009 upon consideration of the rival contentions and the judgments cited by the respective parties which included the judgments cited at bar in the present proceedings has disallowed the contentions advanced by the respondents and allowed the writ petition in the light of the law laid down in the case of Bijay Bahadur (Supra). In view of the ratio laid down in the case of Bijay Bahadur (supra) on the issue in question and followed in subsequent bench decisions of this Court, the impugned order becomes unsustainable. The impugned order also cannot be 8 sustained having been issued in gross violation of the principle of natural justice inasmuch as no opportunity was granted to the petitioner to defend himself before passing the impugned order. Following the ratio laid down in the case of Vijay Bahadur Vs. B.S.E.B. & Ors. (supra) and followed in the case of Jagat Narayan Prasad Vs B.S.E.B. & Ors (supra) and Asha Devi Vs. The State of Bihar & Ors. (Supra), this writ petition is allowed and the impugned order dated 28.3.2001 directing recovery of the amount of Rs. 81,711/- from the gratuity amount of the petitioner as contained in Annexure-1 is set aside. The petitioner would be entitled to refund of the same and he would also be entitled to re-fixation of his retiral benefits viz. pension, gratuity, leave encashment etc. after inclusion of the increments which had been withdrawn by the respondents and also payment of the arrears accruing on these benefits by reason of such re-fixation. The petitioner would also be entitled to the interest on his G.P.F. amount from the date the payment became due until the payments were actually made. The aforesaid exercise should be completed within a period of three months from the date of receipt/production of a copy of this order. The writ petition stands allowed with the directions aforesaid. S.Sb/- (Jyoti Saran, J.)