IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3825 of 2007 UTTIM YADAV Versus THE STATE OF BIHAR & ORS ----------- 07/ 24-11-2009 Heard learned counsel appearing on behalf of the petitioner, Mr. Rama Ishwar Chandra, learned assisting counsel to G.P. 13 and Mr. Harshwardhan for the Accountant General. The writ petitioner has filed this writ petition assailing the order dated 1.2.2007 as contained in Memo No. 111 (Annexure-4), whereby he was directed to refund an amount of Rs. 58,776/- which is said to have been excessively drawn by the petitioner during the period 1.6.2003 to 31.5.2004 by way of salary. The petitioner retired from the service of the respondents with effect from 31.5.2004 and forwarded his pension papers for the payment of retiral benefits. It is at this stage that the impugned orders came to be issued. This writ petition was filed assailing the said order as contained in Annexure-4 on grounds that the petitioner having worked for the period in question, he could not have been denied the salary. A counter affidavit has been filed on behalf of the State through the respondent no. 6 i.e. the Block Development Officer, Benipatti, Madhubani and in which it has been stated that the petitioner has overstayed for the period from 1.6.2003 to 31.05.2004 and thus the salary drawn by him during the said - 2 - period is liable for refund. It is further stated that leave encashment amount of Rs. 38,192/- together with gratuity amount of Rs. 32,418/-, the total coming to Rs. 70,610/- was already paid to the petitioner vide cheque no. 0262788 dated 27.02.2006 much prior to the filing of the writ petition. It is further stated that the amount of provident fund of Rs. 43,715/- has also been paid vide cheque no. 0262792 dated 21.8.2006. It has been mentioned that G.I.C. of Rs. 14,443/- has been paid to the petitioner vide Bill No. 54 dated 09.10.2009. With regard to pension it is stated that the pension intimation memo dated 23.07.2007 has been issued from the office of the Accountant General, Bihar, Patna, copy of which is placed at Annexure-B to the counter affidavit fixing Rs. 1275/- as the pension of the petitioner with effect from 1.6.2003 i.e. his actual date of retirement. Thus the only issue which remains for adjudication is whether the order as contained in Annexure-4 dated 1.2.2007 and Annexure-4/1 dated 21.2.2007 issued by the Circle Officer, Benipatti requiring the petitioner to deposit the amount of Rs. 58,776/- drawn by him by way of salary has lawful support. It is an admitted position that the petitioner has worked during the period 1.6.2003 to 31.5.2004 and the said amount has been paid to him by way of salary. It is also an admitted position that no proceeding was initiated during the said period and the date of retirement came to light only - 3 - subsequently. It is also not the case of the respondents that there was any misrepresentation or representation on the part of the petitioner to continue in service. The continuation has happened by reason of some confusion and upon detection the petitioner was made to retire with effect from 31.5.2004 vide Memo No. 461 dated 27.05. 2004 (Annexure-1). As the petitioner has admittedly worked for the period i.e. 1.6.2003 to 31.5.2004, the order as contained in Annexures- 4 and 4/1 requiring him to refund the salary drawn for the said period, is not justified and is unreasonable and for the said reasons the said orders are set aside. However, the payment of pension to the petitioner in terms of the authorization issued by the Accountant General, would commence w.e.f. 1.6.2004 i.e. the date from which he was asked to superannuate vide Annexure-1. The writ petition is allowed with the directions aforesaid. S.Sb/- (Jyoti Saran, J.)