IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18282 of 2009 BIRENDRA KUMAR SINGH RETIRED ACCOUNTS ASSISTANT S/O LATE RAM DAYALU SINGH, R/O YADUNATHPUR, CHANDWARA, P.O- KARAHAN, P.S- LALGANJ, DISTT- VAISHALI Versus 1. THE BIHAR ELECTRICITY BOARD THROUGH ITS VIDYUT BHAWAN, BAILY ROAD, PATNA 2. SRI AKHILESHWAR PRASAD, FINANCIAL CONTROLLER-I, BIHAR STATE ELECTRICITY BOARD, VIDYUT BHAWAN, BAILY ROAD, PATNA 3. THE JOINT SECRETARY, BIHAR STATE ELECTRICITY BOARD, VIDYUT BHAWAN, BAILY ROAD, PATNA 4. THE GENERAL MANAGER CUM CHIEF ENGINEER, TIRHUT ELECTRIC SUPPLY AREA, MUZAFFARPUR 5. THE ELECTRICAL SUPERINTENDING ENGINEER, ELECTRIC SUPPLY CIRCLE, MUZAFFARPUR ----------- 9 10.05.2010 Heard learned counsel for the petitioner, State and the respondent-Board. The petitioner is aggrieved by the order contained in letter no. 532 dated 16th May, 2008 as contained in Annexure-1 whereby the representation of the petitioner was disposed of holding to the effect that the petitioner was not entitled to the promotional benefit on his promotion to the post of Accounts Assistant by adding 12 % benefit on the enhanced salary as the petitioner was allowed the higher pay scale by adding 12 % on his salary while allowing selection grade with effect from 01.07.1977. While rejecting the representation of the petitioner direction was to recover the excess amount paid to the petitioner by way of salary on account of extending him the promotion benefit which comes to rupees eighty thousand. The said amount was recovered from the gratuity payable to the petitioner in addition of - 2 - Rs. 15,914.80 from the monthly pension in installment. Learned counsel for the petitioner submits that on perusal of the Board’s circular as contained in Annexure-6 it would appear that the petitioner was entitled to the benefit of promotional benefits which was allowed to him after expiry of more than three years from the date he was allowed the pay scale of the selection grade vide memo no. 660/EB Patna dated 09.09.1983 as contained in Annexure-B to the counter affidavit filed on behalf of the, as such the petitioner was rightly given the benefit of promotion. Learned counsel further submits that notwithstanding the fact that the petitioner was granted the benefit of promotion correctly as per the extant instructions of the Board. However, the excess amount which is said to have been paid on account of wrong fixation can not be allowed to be recovered from the retiral dues i.e. pension and gratuity for the simple reason that at no point of time right from the date the petitioner was granted promotion to the post of Assistant the petitioner played any fraud or misrepresentation for grant of the aforesaid promotional benefit. As such, the petitioner had no role to play in wrong fixation of pay scale. Learned counsel for the respondent-Board, on the other hand, submits that on the basis of the - 3 - statements made in paragraph 10 of the counter affidavit to the effect that the petitioner was in the Accounts Department and he was supposed to know about the admissibility, and as such, the involvement of the petitioner can not be ruled out. Considering the submissions of the parties, the grievances of the petitioner as prayed fro in this writ application vide paragraph 1 that no recovery of the amount from the gratuity and pension is permissible has substance for the reason that there is no specific allegation against the petitioner of committing any fraud or misrepresentation on the authorities in wrong fixation of pay scale. The law is well settled that in absence of any fraud or misrepresentation on the part of the employee concerned for receiving the salary which is said to be on wrong fixation of pay scale, the employee concerned cannot be held guilty. In the instant case there is no specific allegation against the petitioner that he misrepresented or played any fraud upon the authority for receiving the excess payment on account of alleged wrong fixation. In the above circumstances, the order directing for recovery of the aforesaid amount of Rs. 80,000/- from the gratuity and Rs. 15.914/- from the monthly pension of the petitioner as contained in the order communicated - 4 - to the petitioner as per letter no. 532 dated 16.05.2008 is, hereby, quashed and the respondent Board is directed to refund the aforesaid amount if recovered to the petitioner expeditiously preferably within a period of three months on receipt/production of the certified copy of the present order. The writ application stands allowed to the extent indicated above. Manish/- (Shailesh Kumar Sinha,J.)