IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2299 of 2005 RAM NARAYAN SINGH Versus THE STATE OF BIHAR & ORS --------- 5. 3.2.2010. Heard Mr. Shashi Shekhar Tiwari, learned counsel appearing for the petitioner and Mr. Gyan Prakash Ojha, learned Assisting Counsel to G.A.7 for the State. The petitioner had filed this writ petition seeking inter alia a direction to the respondents to refund the amount of Rs.81,693/- which had been recovered from his post retiral dues. The petitioner had superannuated from the post of Head Clerk with effect from 30.6.2001 from the 7 Bihar Battalion, NCC, Chapra under the respondent no.4, the Commanding officer. On non payment of retiral dues the petitioner moved this court through C.W.J.C.No.15700 of 2004 and which was disposed of by an order dated 16.1.2002 with the direction to the respondents for making payment of the retiral benefits of the petitioner. Copy of the order is placed at Annexure-1 to the writ petition. The non compliance of the order of this Court led to the filing of a contempt application giving rise to M.J.C.No.1235 of 2002 2 and the same was dismissed by order dated 9.7.2004 on the assurance of the Commanding officer that the pending grievance of the petitioner would be redressed. Although the respondents, pursuant to the directions of this Court, released the retiral dues of the petitioner but it is contended that they arbitrarily withheld an amount of Rs.81693/- on the pretext of excess salary drawn by the petitioner with effect from 1.1.1986 when the pay revision took place in the department, until his retirement. Learned counsel for the petitioner submits that neither any notice was issued nor any proceeding was initiated or any order was passed withholding the amount in question, and thus the action was wholly arbitrary and an abuse of power. Learned counsel further submits that having retired from the post of a Head Clerk on 30.6.2001 he had no role to play in the matter of pay fixation which took place in the Battalions as back as on 1.1.1986 and subsequently. It is further submitted that it not the case of the authorities that the petitioner had represented or misrepresented in the matter of pay fixation or that he was the Drawing and Disbursing Officer. It 3 is thus submitted that the action of the authorities in withholding the amount even in absence of any such circumstances and without a show cause notice or drawing any proceedings or without any formal order of recovery, is per se illegal and unsustainable in law. Mr. Gyan Prakash Ojha, learned Assisting counsel representing the State with reference to letter dated 23.11.2004 placed at Annexure-D of the counter affidavit, submits that the Commanding Officer has clearly stated that the petitioner was aware that the excess withdrawal had to be stopped but he failed to take necessary action as directed by the Administrative Officer and continued to withdraw the excess payment. The Commanding Officer has also mentioned that the petitioner failed to produce the relevant letters received in this regard for appropriate action by him. It was thus held that the action of the petitioner amounted to misconduct and that his action resulted in his personal gain and which was to be recovered from his post retiral benefits. Learned counsel thus submits that there was no infirmity in the action of the authorities who have taken appropriate steps for recovery of the amount excessively drawn by the petitioner by 4 reason of incorrect fixation of pay scale. He submits that the petitioner having gathered knowledge about the incorrect pay fixation, should have refrained from drawing the excess salary and should have brought this matter to the notice of the authorities. It is thus submitted that this is not one of the cases which requires indulgence by this court and the writ petition should be dismissed. Learned counsel for the petitioner, in response to the stand of the State in the counter affidavit refers to the letter dated 28.10.1992 issued by the Group Commander addressed to all Drawing and Disbursing Officers placed at Annexure-A requiring them to review the pay scales in terms of the State Government resolution. Learned counsel submits that the petitioner had very clearly sought guidelines as to what action is to be under taken on the issue in the light of the stipulations made in the letter. He submits that despite this position, no formal order was issued in this regard by the appropriate authorities and that in any view of the matter, the required follow up action was to be taken by the Drawing and Disbursing Officer of the Battalion and who is the Commanding officer 5 himself. Learned counsel thus submits that the Commanding Officer himself having failed to take action in the light of the order dated 28.10.1992 was trying to shift the blame on the petitioner and the act of effectuating recovery from the retiral dues in absence of any finding arrived at in a duly constituted proceedings is not sustainable in law. I have heard the learned counsel for the parties and perused the materials on record. It is manifest that during the period ranging from 1.1.1986 until the retirement of the petitioner on 30.6.2001 no notice was issued nor any proceedings were initiated against the petitioner in this regard. At least no such document has been placed on the records of the proceedings. Even after the superannuation of the petitioner, no such proceedings were undertaken by the authorities. In fact, the authorities have not even issued any order withholding the amount in question and in these circumstances, the act of the respondents cannot have any lawful support. Indisputedly, the petitioner was not the Drawing and Disbursing Officer. It is also not in dispute that the petitioner had any role to play 6 in the matter of pay fixation. The letter of the Group Commander dated 28.10.1992 placed at Annexure-A, in no uncertain terms required the Drawing and Disbursing Officer to take steps for revision of the pay scales in the light of the circular issued by the State Government and which apparently was not carried out. Save and except the statement made by the Commanding officer in the letter dated 23.11.2004 alleging the petitioner of suppression of documents, there is no other document on record to support this allegation of the Commanding Officer. In that view of the matter, the petitioner can not be held responsible either for suppression of documents or for drawing excess pay and the act of the respondents in withholding the amount in question cannot be held justified. In the result, this writ petition is allowed and the respondents are directed to refund the amount of Rs.81,693/- to the petitioner within a period of three months from the date of receipt/production of a copy of this order. ahk (Jyoti Saran,J.)