IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3223 of 2002 MD.ISRAIL Versus THE STATE OF BIHAR & ORS ----------- 11/ 09.11.2009 Heard Mr. Janardan Prasad, learned senior counsel appearing on behalf of the petitioner and Mr. Himanshu Kumar, learned Assisting counsel to G.A. 5 and Mr. J.P. Karn, learned senior counsel appearing for the Accountant General. The petitioner is aggrieved by the order as contained in Annexure-1 to the writ petition issued under the signature of the Electrical Executive Engineer, Patna as bearing letter no. 426 dated 2.2.2000, whereby the Accountant General has been requested to issue authorization for recovery of an amount of Rs. 23,223/- from the gratuity amount payable to the petitioner on the ground that the same had been paid to the petitioner by way of excess payment. The petitioner also challenges the legality of the order as contained in Annexure-2 of the writ petition i.e. the authorization issued by the Accountant General dated 3.3.2000 permitting the respondents to deduct the amount of Rs. 23,223/- from the gratuity amount admissible to the petitioner. The brief facts of the case is that the petitioner was appointed as a Work Sarkar under the Electrical Works Division on 12.6.1961 and was promoted to the 2 post of Supervisor. The petitioner retired from service with effect from 31.1.2000. Learned counsel appearing on behalf of the petitioner submits that after his superannuation the directives as contained in Annexures- 1 and 2 came to be issued that the pay of the petitioner had been incorrectly fixed on the promoted post. Learned counsel submits that no notice or opportunity of hearing had been granted to him before issuance of the said orders and before the deduction of the amount of Rs. 23,223/- was made from his gratuity amount. He submits that the action was patently illegal and without sanction of law as being in violation of principles of natural justice. He superannuated from the post of Supervisor and thus he cannot be held responsible for his incorrect pay fixation, if any. He submits that it is not the case of the respondents that the pay fixation of the petitioner had been made by reason of any representation made by him or by reason of any fraud or misrepresentation committed by him. He submits that the pay fixation was entirely an administrative action at the hands of the respondent department and who were entirely responsible for the fixation. In the aforesaid background, it was submitted that the recovery being made from the gratuity amount of the petitioner after retirement was per se arbitrary and not sustainable in law and in violation of the principles of 3 natural justice. Learned counsel appearing on behalf of the respondent-State with reference to the statement made in the counter affidavit filed on behalf of respondent no. 2, submits that the service book of the petitioner had been sent to the Pay Fixation Branch of the Finance Department, on 25.11.99 (Annexure-A) for approval of the pay fixation and after being re-fixed by the Finance Department, it was returned to the office of the deponent vide letter dated 1.12.1999 (Annexure-B). It is thus stated that the respondents have acted on the basis of the re- fixation made by the Finance Department and since an amount of Rs. 23,223/- was found to have been paid in excess to the petitioner, the same was sought to be recovered after obtaining necessary authorization from the Accountant General. He thus submitted that the action taken by the respondent authorities as impugned in Annexures- 1 and 2 are justified and has been carried out for correction of the infirmity that had come to light. Learned counsel appearing on behalf of the Accountant General supports the authorization placed at Annexure-2. I have heard learned counsel for the petitioner, the State and learned counsel appearing on behalf of Accountant General and have perused the material on 4 record. It is indisputed that the pay fixation had been carried at the hands of the respondent department and the petitioner who retired from the post of Supervisor in the respondent department had no role to play in the matter of his pay fixation. It is also not the case of the respondents that the said benefits had been bestowed upon the petitioner by way of undue favour or that he had derived the same by representation or by making a misrepresentation. In that view of the matter, where the benefits that was conferred upon the petitioner was by reason of the pay fixation made by the respondent department the same can in no manner be attributed to the petitioner and thus he cannot be saddled with the liability of refund of the amount on the pretext of excess payment. Learned counsel relies upon a full Bench judgment of this Court reported in 2007(3) P.L.J.R. 398 and a recent judgment of the Supreme Court reported in 2009 (2) P.L.J.R. 74 (SC) in support of his submissions. The issue stands concluded and requires no further interpretation. It is clear that the petitioner had no role to play in the matter of his pay fixation nor the same was given to him by way of undue favour. It was an administrative error committed at the hands of respondents and who have corrected the same and the 5 retiral benefits have been fixed on the basis of such correction. Further the action impugned is in gross violation of principles of natural justice. In that view of the matter, it would inequititious to permit recovery. Having regard to the circumstances, this writ petition is allowed and the orders as contained in Annexures- 1 & 2 in so far as it relates to recovery of the amount of Rs. 23,223/- from the gratuity amount of the petitioner, are set aside. The respondent State is directed to refund the amount of Rs. 23,223/- being the balance amount of the gratuity to the petitioner within a period of three months from the date of receipt/production of a copy of this order. The writ petition stands allowed. S.Sb/- (Jyoti Saran, J.)