IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2163 of 2006 AJIT KUMAR SHARAN, son of late Surendra Kumar Sharan, Matra Reader (Retd.) resident of Mohalla Belisarai P.S. Motihari, District-East Champaran Versus 1. THE BIHAR STATE ELECTRICITY BOARD, Patna through its Chairman 2. The Chairman, Bihar State Electricity Board, Patna. 3. The Secretary, Bihar State Electricity Board, Patna 4. The Financial Controller, Bihar State Electricity Board, Patna 5. The Electrical Executive Engineer, Electric Supply Division, Motihari ---------- 5 15.04.2010 Mr. Girish Chandra Verma, learned counsel for the petitioner and Mr. V.K. Verma, learned A.C. to Mr. Vinay Kirti Singh, learned counsel representing the Electricity Board are present. The petitioner questions the recovery stipulation as present in the gratuity payment order dated 23.11.2002 as contained in Annexure-1. A counter affidavit has been filed on behalf of the Electricity Board illustrating the admissible dues of the petitioner towards his post retiral benefit. In so far as the challenge made by the petitioner to the recovery effected from the gratuity payment order dated 23.11.2002 as contained in - 2 - Annexure-1 of the writ petition is concerned, it is stated that during the course of examination of the pay fixation and the entries in the service book, it was found that the pay of the petitioner had been incorrectly fixed and which was subsequently corrected with effect from 1980 until the superannuation of the petitioner on 31.7.2002 from the post of Meter Reader. A detailed chart of recalculation has been placed at Annexure-A to the counter affidavit and by support whereof it is contended that it was found that the petitioner had drawn an excess amount of salary of Rs. 22,631.80 by reason of such incorrect pay fixation and which had since been recovered from the gratuity amount of the petitioner. Learned counsel assails the gratuity payment order to the extent it stipulates the recovery, inter alia on the ground that in the entire counter affidavit there is no whisper as to the role of the petitioner in deriving the benefits. He submits that the petitioner having superannuated from the post of Meter Reader with effect from 31.7.2002, the action of the authorities of the Board in processing - 3 - refixation dating back 22 years with effect from 1980 even in absence of there being any allegation against the petitioner of deriving benefits by means of any fraud or misrepresentation, is most arbitrary, unjust and unsustainable. He submits that even for the sake of argument if it is assumed that the fixation needed any rectification it could be done prospectively and that also after giving opportunity of hearing to the petitioner. But in absence of any role of the petitioner, in deriving the benefits, they cannot be permitted to effect recovery. Learned counsel submits that the case of the petitioner certainly does not fall within the exceptions set out in paragraph 26 of the Full Bench judgment rendered in the case of Ram Binod Singh Versus Bihar State Electricity Board & Ors reported in 2007 (3) PLJR 398, warranting recovery. He submits that the order was passed without providing an opportunity to the petitioner and without hearing him and thus has been issued in gross violation of the principles of natural justice. The contentions advanced by the learned counsel for the petitioner is on sound - 4 - reasoning and finds force from the judicial pronouncement relied upon by him. The rectification even if applied prospectively cannot empower the respondents in effecting recovery by carrying out refixation dating back 22 years and even in absence of there being any direct or indirect allegation against the petitioner. The writ petition is allowed, the stipulation of recovery contained in the order bearing memo No. 2408 dated 23.11.2002 contained in Annexure-1 is set aside. The respondents are directed to remit the amount of Rs. 23,631.80 to the petitioner within a period of three months from the date of receipt/production of a copy of this order Bibhash (Jyoti Saran, J.)