IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.642 of 2009 SIDHESHWAR BHARTI son of late Atwari Puri resident of village Dariyapur, P.O. Raiyatar (Pawapuri) P.S. Silaw, District Nalanda. Versus 1.THE STATE OF BIHAR through the Chief Secretary Government of Bihar, Patna. 2.The D.G. cum I.G. of Police, Bihar, Patna. 3.The S.P. Rohtas ----------- 3 4/5/2010 Heard counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application is to quash the order dated 7th July, 2004 seeking to recover a sum of Rs.77,384/- from the retirement benefit payable to the petitioner. Counsel for the petitioner would submit that the petitioner had retired from service on 31.10.2003 and after almost nine months of his retirement the impugned order by way of communication to the Accountant General was passed with a copy thereof to the petitioner seeking to make recovery on the ground that the petitioner was not entitled to grant higher salary as he was not eligible to hold need based post. In the opinion of this Court there are only two aspects of the matter which have to be gone into in such cases, one as to whether the petitioner was the only person entitled for such need based post and the other as to whether such order of need based post in favour of the petitioner with consequential benefit of payment of salary of such need based was made on a fraud or misrepresentation on the part of the petitioner. If the authority had 2 passed such order without any misrepresentation or fraud on the part of the petitioner he may not to be liable for recovery of such amount but on the other hand, if the petitioner had insisted that there was a vacancy on need based post and that he should be given such higher need based post with consequential benefit and later on his such misrepresentation was discovered that there was no such post, the respondents can definitely withdraw the financial benefit and also recover the excess amount paid to him. Unfortunately, in this case from tenor of the order it does not appear that the petitioner was subjected to any show cause notice and the order being of one causing evil and civil consequences seeking to recover a sum of Rs.77,384/- from the retirement benefit to the petitioner and seems to have been passed without even giving a show cause notice much less opportunity of hearing to the petitioner. In that view of the matter, the impugned order cannot be sustained and the same is hereby set aside with a direction to the Superintendent of Police Rohtas to give a show cause notice to the petitioner and decide as to whether recovery of the amount in question can be made from the petitioner. Let it be made clear that even if the petitioner may not be held to be liable for recovery, the respondents can always pass an order with regard to actual entitlement of last legally payable salary to the petitioner and fix his all retirement benefit on such admissible last pay to which he alone was entitled in law at the 3 time of his retirement. With the aforementioned observation/direction this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)