IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6693 of 2001 RAM CHANDRA PODDAR son of Ganori Poddar, R/O village Barh,Dist-Patna.— Petitioner. Versus 1. THE STATE OF BIHAR through Health/Medical Officer,Incharge, Referal Hospital, Mokamah 2. Accountant General, Bihar, Patna.- Respondents. ----------- For the petitioner : Mr. Suresh Gandhi For the State : AC to AAG-9 For respondent no.2 : Mrs.Nivedita Nirviiar -- Reg: I.A.No.6741 of 2009. 10. 30.10.2009. Heard learned counsel for the petitioner and the State on the interlocutory application. During the pendency of the writ application, the original petitioner Sri Ram Chandra Poddar expired on 20.4.2008. This application has been filed for expunging the name of Ram Chandra Poddar and substitution of the name of his wife Smt. Sita Devi in his place to enable her to pursue the present proceedings. This application is allowed. Let the name of Ram Chandra Poddar be expunged from the proceedings and the name of his wife Smt. Sita Devi be substituted. With the consent of the parties the writ petition has been taken up for disposal at the 2 stage of admission. Heard the parties on the merit of the case. The husband of the petitioner retired as a Health Worker on 31.12.1995 and filed this writ application in the year 2001 seeking, inter alia, for refund of Rs.70,357/- which had been erroneously recovered from the amount of the retiral dues of the petitioner under the direction of respondent no.2, the Accountant General, Bihar, Patna as contained in the pension payment order dated 30.6.1998 placed at Annexure-1 to the writ application. The petitioner has also prayed for other benefits but the same had been redressed. When the matter is taken up for adjudication today, the only issue which remains for determination is whether the respondents have any jurisdiction to recover the amount of Rs.70,357/ from the retiral benefits of the petitioner, more particularly, in the circumstances, where no fraud or misrepresentation has been attributed to the petitioner in the matter of pay fixation or without giving due opportunity of hearing to the petitioner. 3 It is undisputed that no departmental proceeding was initiated against the petitioner nor any show cause was issued to him during his service tenure. The unfortunate part is that the petitioner died during the pendency of the writ application and as a consequence whereof, the interlocutory application has been filed and which has been allowed. It is well settled principle that no recovery can be made from an employee much less from a retired employee without giving him an opportunity to defend himself. It is equally well settled that the benefits received by such employee warranting recovery was by reason of practising fraud or misrepresentation or the employee concerned had colluded in deriving the benefits or the same was extended to him by reason of undue favour or malafide exercise of power or there was an undertaking to refund the same or the like. The direction of the Accountant General, Bihar placed at Annexure-1 of the writ proceeding says the least in this regard and even the affidavit of the State does not indicate the circumstances justifying the said recovery except 4 that the same was done upon detection of incorrect pay fixation resulting in excess payment. It is however not the case of the respondents that the case of the petitioner fell within the exceptions aforesaid. In the circumstances, the direction of the Accountant General as contained in Annexure-1 with regard to the recovery is set aside and the respondents are directed to release the amount of Rs.70,357/ to the petitioner within a period of three months from the date of receipt/production of a copy of this order. The writ petition is allowed with the direction aforesaid. ahk (Jyoti Saran,J.)