IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8909 of 2004 Shyam Kishore Chaudhary, son of Late Ram Rup Chaudhary resident of village Baukhra, Police Station Haveli Kharagpur, District Munger Versus 1. The Bihar State Electricity Board, through its Chairman, Bihar State Electricity Board, Patna 2. The Secretary, Bihar State Electricity Board, Patna 3. The Superintending Engineer, Electricity Board, Electrical Circle, Munger 4. The Executive Engineer, Electrical Supply Division, Munger 5. The Financial Controller, Bihar State Electricity Board, Patna ----------- For the Petitioner :M/s Siya Ram Shahi & Shally Kumari, Advocates For the Bihar State Electricity Board :M/s. Vinay Kirti Singh & Vinay Kumar, Verma, Advocates 05/ 14.09.2010 Heard learned counsel for the petitioner and the Bihar State Electricity Board (hereinafter referred to as the Board). 2. Petitioner is aggrieved by the order, bearing Memo No. 1386 dated 9.7.2003, Annexure-18, whereunder one lac has been directed to be recovered from his gratuity amount on account of excess pay received by him. 3. It is submitted on behalf of the petitioner that from perusal of the counter affidavit and the audit report annexed therewith, it will appear that petitioner is alleged to have received higher salary in the scale of 490- 844 with effect from 27.5.1975 and the said higher 2 amount received by him has been directed to be recovered under the impugned order. Aforesaid fact also appears from the counter affidavit that petitioner who superannuated as Office Superintendent with effect from 31.12.2000 is responsible for receiving higher salary in the scale of 490-844/- and the said amount is required to be recovered. From the counter affidavit, it further appears that on account of mistake, Standing Order No. 515 dated 7.5.1976 was issued and taking advantage of the Standing Order dated 7.5.1976, petitioner received higher amount which should be recovered from him. 4. Counsel for the petitioner states that petitioner was not instrumental in payment of higher scale and salary to him, as such payment made in the light of the Standing Order No. 515 dated 7.5.1976 should not be recovered from him. In any case, it is submitted that petitioner being not responsible for the mistake committed by the authorities of the Board, in the light of the judgment of the Hon’ble Supreme Court in the case of Syed Abdul Qadir & Ors Vrs. State of Bihar & Ors., reported in 2009 (2) PLJR 74(SC), the amount paid in excess to him way back in 1975 should not be 3 recovered after his retirement, as higher salary was not paid to him on account of any misrepresentation by him. 5. In the light of the judgment of the Hon’ble Supreme Court in the case of Syed Abdul Qadir & Ors (supra), I am of the view that the recovery directed from the petitioner under the impugned order should not be made from him, as payment of the higher emolument to the petitioner was not on account of misrepresentation by him. Accordingly, the direction of the Financial Controller to recover the amount of one lac under the impugned order dated 9.7.2003, Annexure-18 is set aside. In the compliance of my order, the authorities of the Board should refund the amount recovered from the petitioner within three months from the date of receipt/ production of a copy of this order. 6. For any other relief(s), petitioner is at liberty to represent before the Secretary of the Board, which should be considered and disposed of in accordance with law within the same time. 7. The writ application is, accordingly, disposed of. Arjun/ ( V. N. Sinha, J.) 4