1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9482 of 2005 NAND KUMAR UPADHAYA Versus THE STATE OF BIHAR & ORS ----------- 04/ 18.03.2010 Learned counsel appearing on behalf of the petitioner is permitted to add the District Provident Fund Officer, Gopalganj as respondent no. 6 to the present proceedings. Heard Mr. Gopal Govind Mishra for the petitioner, Mr. Ashutosh Singh, learned assisting counsel to G.P. 8 and Mr. Ranjan Kumar for the Accountant General. The petitioner superannuated from the post of Steno-Typist with effect from 31.8.2004 while posted at Gramin Vikas, Special Division, Gopalganj Camp, Mirpur under the Executive Engineer, Gopalganj Camp, Mirganj. Upon non-payment of his post retiral dues he filed the writ petition claming payment of his post retiral and other dues set out in paragraph-1 of the writ petition. The counter affidavit was filed on behalf of the Executive Engineer on 19.1.2006 and in which it was stated that the petitioner has been paid a provisional gratuity of Rs. 1,76,759/-. As regarding leave encashment, it is stated that the petitioner was entitled to an amount of Rs. 82,155/- and which has been paid to him after deducting Rs. 27,494/- being the excess amount received by the petitioner by way of incorrect fixation of his pay-scale in the Senior Selection Grade in the 2 light of the objection raised by the District Accounts Officer, Gopalganj contained in letter no. 129 dated 10.5.2005 and on the basis of which an order of recovery has been passed by the Executive Engineer vide Memo No. 255 dated 20.5.2005 placed at Annexure-B of the said affidavit. It was stated that the petitioner was being paid provisional pension upto 5.9.2005 and that group insurance amount of Rs. 75,422/- has been paid to him. In so far as G.P.F. amount is concerned, it is stated that a authority slip for payment of Rs. 26,961/- was issued vide letter no. 278 dated 16.5.2005 and which has been paid to the petitioner. In so far as the balance G.P.F. amount is concerned, in absence of deduction statement the same could not be paid and for which the concerned authority have been directed to calculate the deduction statement. A second counter affidavit was filed on behalf of the said respondent nos. 2 to 4 on 18.11.2008 setting out the payment position of the retiral dues of the petitioner and in which as regarding General Provident Fund it was stated that an amount of Rs. 1,35,223/- was received and which has been paid to the petitioner through his savings bank account. It was, however, admitted that final payment authority was under process by the District Provident Officer, Gopalganj and would be made without delay. In so far as gratuity amount is concerned, it was stated that an amount of Rs. 1,82,878/- was fixed by the Accountant General and out of which Rs. 1,76,759/- 3 was paid to the petitioner through his savings account and balance of Rs. 6,119/- is yet to be paid. In so far as the leave encashment and group insurance amounts are concerned, the same positions have been reiterated. With regard to pension it is stated that earlier the petitioner was being paid 90 per cent provisional pension and which has since been finally fixed under the authorization dated 11.11.2005 by the Accountant General. It is contended that as the Selection Grade given to the petitioner in the scale of Rs. 1640/- to 2900/- with effect from 1.1.1996 was not found admissible since the appropriate scale admissible to Steno Typist is Rs. 1500/- to 2750/-, hence it was found that the petitioner had drawn an excess salary by reason of the said incorrect pay-scale and an excess amount of Rs. 27,494/- had been deducted from the leave encashment amount. The respondents admit to admissibility of Rs. 23,244/- pending towards arrears of ACP under the Commissioner-cum-Secretary, Rural Development Department, Patna through letter no. 92 dated 14.2.2007 and submit that the payments would be made to the petitioner. Today a counter affidavit has been filed on behalf of the Accountant General enclosing revised authorization of pension and gratuity of the petitioner. It is stated that the pension of the petitioner has been authorized at Rs. 3,579/- with effect from 1.9.2004. The said revised pension payment order is dated 4.6.2007 and is enclosed to the said counter affidavit. The 4 revised gratuity order has also been enclosed to the affidavit dated 6.6.2004 authorizing the gratuity amount of Rs. 1,97,876/- demonstrating the earlier authorized amount of Rs. 1,82,878/- as previously paid amount and thus shows that the petitioner was entitled to a further amount of Rs. 14,998/-. The position as it stands today is that the following issue remains for determination, namely:- (a) The re-calculation of his arrears of pension in the light of the revised pension payment order dated 4.6.2007 enclosed in the counter affidavit of the Accountant General at the rate of Rs. 3579/- with effect from 1.9.2004 and payments of arrears thereof together with actual payment of pension, (b) The balance amount of gratuity in the light of the revised gratuity payment order dated 6.6.2007 enclosed with the counter affidavit of the Accountant General authorizing gratuity amount of Rs. 1,97,876/- treating Rs. 1,82,878/- earlier authorized as a paid amount and thus leaving a balance of Rs. 14,998/-. The petitioner is still to be paid a balance amount of Rs. 6,119/- under the earlier sanction order taken note of above. Hence the balance gratuity amount admissible to the petitioner would be Rs. 6,119/- + Rs. 14,998/- = Rs. 21,117/-. (c)The balance G.P.F. amount which is still to be paid by the District Provident Fund Officer, Gopalganj as admitted by the Executive Engineer. (d) The recovery of an amount of Rs. 27,494/- 5 made from his leave encashment amount. Taking item no.-d at the first instance it is seen that there is no averment in either of the counter affidavit(s) regarding any role of the petitioner in fixation of his pay-scale. In fact, the said recovery has simply been carried out on the basis of the objection raised by the District Accounts Officer, Gopalganj taking accepting the objection at his face value. Indisputably, neither the petitioner was given any notice nor has been heard in the matter, which has resulted in revision and lowering of his pay-scale with effect from 1.1.1996 i.e. almost 8 years since his retirement followed by recovery. That no proceedings has been initiated in this regard, is apparent from the affidavits filed in the present proceedings. The Executive Engineer has accepted in paragraph-3 (ii) of the first affidavit and paragraph-4 (iv) of the second affidavit that the orders of recovery vide memo no. 255 dated 20.05.2005 (Annexure-B to the Ist counter affidavit) was issued in the light of the objection of the District Accounts Officer, bearing letter no. 129 dated 10.5.2005 (Annexure-A to the second counter affidavit). The recovery in any case could not be carried out from the leave encashment amount in terms of the law laid down by this Court in the judgment and order reported in 1999(3) P.L.J.R. 949. Thus the recovery of Rs. 27,494/- made from the leave encashment amount of the petitioner without any notice and in absence of any proceedings and further in absence of any direct 6 averment of fraud or misrepresentation on the part of the petitioner cannot be permitted at such belated stage. The respondent authorities are entitled to correct the infirmity, if any, but that can only have a prospective effect and cannot be applied retrospectively without drawing any formal proceedings. In that view of the matter, the stipulation of recovery made in the office order dated 20.5.2005 (Annexure-B) cannot be sustained and to that extent is set aside. The respondent authorities are directed to remit the amount of Rs. 27,494/- to the petitioner. In so far as the other entitlements of the petitioner regarding re-calculation of pension and payment of arrears thereof, payment of balance amount of gratuity and payment of balance amount of provident fund are concerned, there is no dispute on this issue and in which view the concerned authorities i.e. the respondent nos. 2 to 4, are directed to ensure the payment of the balance amount of pension and gratuity of the petitioner after re-calculation of the same in the light of the revised pension payment order and revised gratuity payment order contained in the counter affidavit of the Accountant General. The District Provident Fund Officer, Gopalganj respondent no. 6 is also under an obligation to make payment of the balance amount of the provident fund pending at his level to the petitioner and also provide to him with the details of deduction and calculation. The entire exercise of calculation and payment(s) should be carried out within a period of three 7 months from the date of receipt/production of a copy of this order. The writ petition is disposed of with the directions aforesaid. S.Sb/- (Jyoti Saran, J.)