IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15812 of 2004 LALAN THAKUR S/O LATE BANKE THAKUR, R/O VILLAGE BHAWANI TOLA, PO- RAMPUR, DIYARA (MANER) PS- MANER DISTT- PATNA-- ----------------------------- PETITIONER Versus 1. THE CHAIRMAN,B.S.E.B. VIDYUT BHAWAN,PATNA 2. THE GENERAL MANAGER-CUM-CHIEF ENGINEER, CENTRAL ELECTRIC SUPPLY AREA, 8 SERPENTINE ROAD, PATNA 3. THE FINANCIAL CONTROLLER-I, B.S.E.B., PATNA 4. THE DY. DIRECTOR OF ACCOUNTS (SECTT.) B.S.E.B.PATNA 5. THE ELECTRICAL SUPERINTENDING ENGINEER, BHOJPUR ELECTRICAL CIRCLE, ARA-----RESPONDENTS. ----------- For the Petitioner: Mr. Gopal Govind Mishra, Advocate For the Respondents:Mr. Binay Kriti Singh, Advocate --------- 6 20.2.2009 I.A. No. 1137 of 2009 is for substitution of the present petitioner who died on 20.2.2007. Sona Devi wife of the petitioner (deceased) is sought to be substituted as the legal heir. I.A. stands allowed. Petitioner was holding the post of Head Clerk in the office of Electrical Superintending Engineer, Bhojpur Electrical Circle, Ara. He retired from service on 28.2.2003. Thereafter when his pension papers were forwarded for final settlement, vide annexure-1 dated 19.7.2003 Rs. 80,000/- was ordered to be recovered from the gratuity of the petitioner’s husband on the ground of wrong fixation of pay. The said annexure-1 is under challenge in the present writ application. The stand of the respondents is that the petitioner was given wrong benefit of 12% of the pay in the year, 1977 and the said mistake was discovered during the course of settling his pension and the authority recovered the said amount. The Court has difficulty in accepting the stand of the respondents because in an identical matter a Division Bench of - 2 - this Court has categorically held that from the post retiral benefit no recovery can be affected from the employee, more so when the benefit was conferred on the employee more than 30 years ago and at no point of time the respondent had taken any step to remove this anomaly during the service period of the husband of the petitioner. The Division Bench in its order dated 3rd September, 2008 rendered in the case of Mundrika Devi v. Bihar State Electricity Board & Ors. (L.P. A. No. 1241 of 2002) had this to say in paragraph nos. 3 and 4 of the said decision as follows: “3. In the instant case, it is not the contention of the Board that in the matter of alleged mistake, which resulted in excess payment, the appellant had any role to play. The excess payment, if any, is also not due to mistake in pay fixation, grant of increment or the like leading to wrong calculation of salary of the employee. The mistake is also not at the ministerial level. Respondent-Board, in the instant case, after superannuation of the appellant, opined that pay protection given to the appellant, his promotion to selection grade and grant of 12% extra emolument was improper and incorrect; and because of improper and incorrect decision, excess payment has been made to the appellant, which is recoverable. It is not the contention of the respondent- Board that grant of any of them was not by the authority authorized to grant the same. It is the contention of the appellant Board that the grants themselves were not permissible by law and accordingly, any payment made on the basis of such grants is recoverable. 4. As we are bound by the judgment rendered by the Full Bench of this Court and inasmuch as the decision of the Full Bench, as quoted above, squarely applies to the present case, we have no other option but to allow the appeal and set aside the judgment and order under appeal, which we do hereby, and at the same time allow the writ petition by directing the Board to fix the retiral/terminal dues of the appellant, without taking note of the contention of the Board, as contained in its order dated 3rd April,2000, which admittedly came into play subsequent to superannuation of the appellant.” - 3 - In view of above, annexure-1 dated 19.7.2003 is quashed. This writ application is allowed. Respondents are directed to refund Rs. 80,000/- to the petitioner if it has been adjusted already. RPS (Ajay Kumar Tripathi,J.)