IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7902 of 2005 GANGA PRASAD SINGH Versus THE STATE OF BIHAR & ORS ----------- 05/ 22.03.2010 Heard Mr. Rupak Kumar, learned counsel appearing on behalf of the petitioner, Mr. Krishna Kant Singh, learned assisting counsel to G.P. 5 and learned counsel for the Accountant General. I.A. No. 3689 of 2006 The interlocutory application has been filed by the petitioner seeking amendment in the relief and prayer portion of the writ petition in view of the orders of recovery issued subsequent to the filing of the writ petition and placed at Annexure-X series of the interlocutory application. Vide memo no. 676 dated 17.05.2006 the Executive Engineer, Road Construction Department has issued orders of recovery of Rs. 1200/- from the unutilized leave salary admissible to the petitioner, said to be the excess salary drawn by the petitioner. By order bearing memo no. 677 dated 17.5.2006 an amount of Rs. 40,276/- , said to be the excess salary drawn by the petitioner, has been directed to be recovered from the gratuity amount admissible to him. By an order bearing memo no. 893 dated 27.7.2006 the Executive Engineer, National Highway, Mechanical Division, Patna has issued order to the Treasury Officer, Secretariat, Patna for ensuring recovery of Rs. 41,476/- from the admissible retiral dues of - 2 - the petitioner. It is stated that pursuant to the orders aforesaid the recovery of Rs. 41,476/- has been carried out from the retiral benefits admissible to the petitioner. The interlocutory application is allowed and the petitioner is permitted to advance the prayer made in the said application in the present proceedings. The petitioner was appointed on the post of Senior Mechanic Grade-1 in 1963 and was promoted to the post of Foreman with effect from 8.10.1974 and was granted the pay-scale of Rs. 450/- to 745/-. The scale of Foreman was revised to Rs. 850- 1360/- with effect from 1.4.1981 in view of the implementation of the pay revision and further revised to Rs. 1600-2780/- w.e.f. 1.1.1986. The petitioner was granted time bound promotion with effect from 30.11.1988 (Annexure-7) and was placed in the scale of Rs. 1640/- to 2900/-. The said scale was revised under the pay revision effective in the State from 1.1.1996, to Rs. 5,000/- to 8,000/-. The petitioner superannuated from the post of Foreman with effect from 31.1.2000. The promotion of the petitioner to the post of Foreman on 8.10.1974 or his time bound promotion with effect from 30.11.1988 is not in dispute. What the respondents’ dispute is the revision of the pay-scale of the petitioner on 1.1.1971 which was between his appointment and promotion to the post of Foremen. They also dispute the pay-revision of the petitioner on 1.1.1986 which was between his promotion as Foreman and his time bound promotion on 30.11.1988. The pay-scale on which the petitioner superannuated again, is not in - 3 - dispute and he has also drawn his post retiral benefits on that basis. The grievance as set out in the writ petition is in relation to the recovery by the authorities pursuant to the order as contained in the letter dated 14.5.2005 placed at Annexure-1 to the writ petition, whereby the Deputy Secretary, Road Construction Department has found infirmities in the pay fixation of the petitioner as on 1.1.1971 and 1.1.1986. It is stated that the petitioner was not entitled for the scale fixed on 1.1.1971 and 1.1.1986 rather he was entitled to a lower scale. It is thus contended that the difference of salary drawn by the petitioner by reason of such incorrect pay fixation was to be recovered under the directions as contained in Annexure-1. Pursuant to the decision as contained in Annexure-1 an order of recovery was issued and which has been brought on record by way of interlocutory application bearing I.A. No. 3689 of 2006 placed at Annexure-X series thereof and which has been allowed. Learned counsel for the petitioner submits that the process of recovery carried out by the respondent authorities is without a show cause much less drawing any proceeding as envisaged under the provisions of the Bihar Pension Rules. He further submits that the respondent authorities even while finding no infirmity in the scale from which the petitioner superannuated, by the impugned orders are trying to wreak up issues which stands settled as back as in the year 1971 and/or 1986. He thus submits that apart from the fact that the infirmities so pointed out, are not sustainable even on merit, the process of recovery having been enforced without following the due - 4 - procedure and in absence of notice, is unsustainable and is in gross violation of principles of natural justice. Mr. Krishana Kant Singh, learned counsel for the State, supports the impugned action and submits that the proceedings have been initiated within a period of four years from the date of knowledge of such infirmity and as the petitioner was not found entitled to the scales granted to him on 1.1.1971 and on 1.1.1986, hence the recovery of the excess salary drawn by him during the said period has been carried out and thus there is no infirmity in the action of the authorities. I have heard learned counsels appearing on behalf of the parties and considered the materials available on record. The recovery effected sans any show cause notice and in absence of any proceedings is certainly not sustainable. The very order under which the process of recovery has been enforced has been issued as late as on 14.5.2005 while the petitioner superannuated on 31.1.2000 more than five years from the date on which such a decision for enforcing recovery, was taken. That the proceedings was not sustainable in the light of the relevant provisions of the Bihar Pension Rules, it is also not sustainable as it has been carried out in gross violation of the principles of natural justice and even without issuance of any show cause notice to the petitioner. The action of the authorities is also not sustainable for the reason that the petitioner having been promoted to the post of Foreman as well as having been granted time bound promotion , the authorities are trying to wreak up the issues which fell - 5 - in between the said periods and which apparently neither appears reasonable nor can be permitted at such belated stage, after a lapse of twenty years or more. In the circumstances, the impugned order as contained in Annexure-1 as also the orders of recovery issued pursuant thereto and placed at Annexure-X series of the interlocutory application are set aside. As a natural consequence, the respondent no. 8 Executive Engineer (Mechanical) is directed to remit the amount of Rs. 41,476/- to the petitioner within a period of three months from the date of receipt/production of a copy of this order. The writ petition is allowed. S.Sb/- (Jyoti Saran, J.)