CIVIL WRIT JURISDICTION CASE No.2817 OF 2009 NAWAL KISHORE GUPTA SON OF LATE BAIJU LAL GUPTA, RESIDENT OF MOHALLA SAHEBGANJ, P.O.- CHAMPA NAGAR, P.S. TATARPUR (KOTWALI) TOWN & DISTRICT- BHAGALPUR Versus 1. THE T.M.BHAGALPUR UNIVERSITY, BHAGALPUR THROUGH ITS REGISTRAR 2. THE VICE CHANCELLOR, THE T.M. BHAGALPUR UNIVERSITY, BHAGALPUR 3. THE REGISTRAR, THE T.M. BHAGALPUR UNIVERSITY, BHAGALPUR 4. THE FINANCE OFFICER, THE T.M. BHAGALPUR UNIVERSITY, BHAGALPUR 5. THE HEAD OF DEPARTMENT, P.G. DEPARTMENT OF PHYSICS, THE T.M. BHAGALPUR UNIVERSITY, BHAGALPUR 6. THE STATE OF BIHAR, THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 7. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, NEW SECRETARIAT, PATNA 8. THE DIRECTOR, DEPARTMENT OF HIGHER EDUCATION, GOVT. OF BIHAR, NEW SECRETARIAT, PATNA ----------- FOR THE PETITIONER : MR. PURUSHOTTAM KR. JHA, ADV. MR. JITENDRA ACHARYA, ADV. FOR THE STATE : MR. NARMADESHWAR JHA, AAG-VII FOR THE UNIVERSITY : MR. ANIL SINGH, ADVOCATE P R E S E N T THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA S.K.SINHA,J. Heard learned counsels for the parties. The petitioner upon his superannuation on 31st May, 2004 from the post of Mechanic in the Post Graduate Department of Physics under the respondent- University, was visited with two orders as per letter no. PEN-G-1728/ACC/1655/08 and PEN-G-1728/ACC 1653/08 both dated 17.09.2008 vide Annexures 13 & 14 respectively. Petitioner by the above orders was communicated to the effect that the pension payable to - 2 - him was fixed on the pay-scale of Rs. 6500-10500/- instead of Rs. 3050-4590 and consequently the excess payment made to the petitioner amounting to Rs. 2,30,781/-towards the gratuity and pension is being recovered in instalments as mentioned in the said order. Petitioners on being aggrieved challenged the aforesaid decision through a writ petition vide C.W.J.C. No. 15439 of 2008 disposed of on 12.11.2008 as contained in Annexure-21 of the writ application directing the University to dispose of the pending representation of the petitioner in this regard and to consider whether the fixation of pay-scale done by the Syndicate/Senate of the University is in tune with the relevant notification of the Government in this regard. The representation of the petitioner was accordingly disposed of by the University as per the order dated 20th January, 2009 as contained in Annexure-22 of the writ application upholding the recovery/realization of the aforesaid amount of Rs. 2,30,781/-, however there is no consideration as to whether the pay fixation done by the Syndicate/Senate is in consonance with the Government notification in this regard. Petitioner challenges the aforesaid order directing for recovery. Mr. Purushottam Kumar Jha, learned counsel appearing for the petitioner, at the outset, - 3 - submits that the petitioner confines his prayer in this writ application against the recovery only and the petitioner will be at liberty to assail the reduction of his pay-scale reducing the pension by filing a separate writ application. Learned counsel submits that the respondent-University is not justified in making the recovery from the retiral dues of the petitioner long after his superannuation. It is further submitted that at no point of time the petitioner in any manner was responsible for fixing the so called higher pay-scale and settling the pension taking into consideration the said scale of pay. It is further submitted that the petitioner at no point of time was communicated that the pay-scale of Rs. 6500-10500 is being fixed provisionally or the same is subject to the approval of the State Government nor there is any allegation of practicing fraud or misrepresentation on the part of the petitioner. As such, no recovery is justified long after his superannuation causing serious financial hardship. Learned counsel in support of his submissions has relied upon a decision of this Court in the Case of Kapildeo Sah vide C.W.J.C. No. 4955 of 2004 holding the recovery of alleged excess payment can not be made except in the case of misrepresentation or commission of fraud on the part of the petitioner and affirming of the said decision in L.P.A. - 4 - No. 868 of 2004 by this Court as per its order dated 27.10.2005 as contained in Annexure-24 to the writ application besides the decision in the case of Ram Binod Singh Vs. Bihar State Electricity Board & Ors and other analogous cases as reported in 2007(3) P.L.J.R., 398(F.B.). Mr. Anil Singh, learned counsel appearing for the respondent-University submits that the higher pay- scale was fixed inadvertently which was subsequently corrected as per the Government approved revised scale which resulted in realization of the aforesaid excess amount of Rs. 2,30,781/-. Learned counsel also relied on the decision in the case of Ram Binod Singh (supra) and submits that in given circumstances recovery is permissible. He, however, fairly submits that neither there is any allegation of fraud or misrepresentation on the part of the petitioner nor the petitioner was communicated any order to the effect that the said higher pay-scale in question was provisional or it is subject to the approval of the State Government. But, none the less the petitioner was not entitled in law for the higher pay- scale in the light of the pay structure approved by the State Government. The pay-scale of the petitioner was accordingly fixed on the correct pay-scale admissible to him as on the date of superannuation vide Annexure-13 - 5 - and excess payment made to him towards the pension and gratuity was being recovered. Considering the rival submissions of the parties and their respective pleadings the matter is in short compass since the controversy is with respect to recovery of excess amount said to have been paid to the petitioner by way of wrong higher pay-scale which was not admissible, as such, whether recovery is justified after superannuation. The admitted position is that University claimed to have fixed the aforesaid higher pay- scale inadvertently. There is no allegation of misrepresentation or practicing fraud on the part of the petitioner nor it was communicated to him at any point of time that the said pay-scale is provisional and subject to the approval of the State Government. This Court finds substance in the submissions of the petitioner that in such a situation as held by this Court as also by the Hon'ble Apex Court the recovery is not justified in law which otherwise would cause financial hardship to the concerned employee after his superannuation and that too after long lapse of time. Reference in this regard may be made to the decision of the Apex Court in the case of Syed Abdul Qadir Vs. The State of Bihar, reported in (2009)3 S.C.C, 475. The paragraphs 57 & 58 of the said decision are quoted hereunder: - 6 - Paragraph-57 “This court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b), if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. Paragraph-58 The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. - 7 - In the result, the impugned orders vide letter no. PEN-G-1728/ACC/1655/08 and PEN-G-1728/ACC 1653/08 both dated 17.09.2008 as contained in Annexures 13 & 14 of the writ application to the extent of recovery of the amount of Rs.2,30,781/- as also the order dated 20th January, 2009 as contained in Annexure-22 rejecting the representation of the petitioner in this regard upholding the order of recovery are, hereby, quashed. In the circumstances, the respondent- University is directed not to recover the aforesaid amount of Rs. 2,30,781/- from the retrial dues of the petitioner. The amount already recovered from the retiral dues if any be refunded back to the petitioner within a period of three months on receipt/production of the certified copy of the present order. The writ application stands allowed to the aforesaid extent. No costs. The Patna High Court The 29th April, 2010 A.F.R./Manish ( Shailesh Kumar Sinha,J.)