IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18032 of 2008 Ram Ratan Prasad, Son of Balgobind Prasad, Resident of Village – Baikunthpur, P.O. – Udant Ray Ke Bangra, P.S. – Manjha Garh, District – Gopalganj. ---------- Petitioner Versus 1. The State Of Bihar through Finance Secretary, Govt. of Bihar, Patna. 2. The Commissioner, Saran Division (Chapra). 3. The District Magistrate, Gopalganj. 4. The Circle Officer, Kateya, District – Gopalganj. 5. The District Provident Fund Officer, Gopalganj. ----- Respondents ---------------------------------- 3 14.12.2011 Heard Sri Vibhakar Tiwari, who was assisted by Sri Manager Sah, learned counsel for the petitioner and Smt. Nutan Kumari Sharma, learned A.C. to Government Advocate No. 4, appearing on behalf of all the Respondents. The present writ petition has been filed with a prayer to direct the Respondents to refund Rs. 77,438/- which was recovered from the retiral dues of the petitioner. The petitioner had retired on 31.01.2003 from the post of ‘Revenue Karmchari’, Kateya Block, in the district of Gopalganj. After retirement his retiral dues was paid. However, since full retiral dues was not paid, the petitioner approached the authority concerned, and thereafter, he came to know that certain amount was deducted from his retiral dues. For specific information he filed an application under the Right to Information Act which was replied by the Information Officer vide ‘Annexure-3’. Learned counsel for the petitioner submits that in view of ‘Annexure-3’ it is evident that an amount of Rs. 77,438/- was recovered from the retiral dues of the petitioner on the plea that even 2 though the petitioner had not passed Hindi noting and drafting examination, he had obtained increment and got higher scale, and as such, as per ‘Annexure – 3’, after detection the amount was recovered. The petitioner has made specific statement that he had appeared thrice in the departmental examination for Hindi noting and drafting. However, he remained unsuccessful, and thereafter, under the provisions of Government instruction vide Circular No. 3/R dated 15.05.1992, he filed an application for grant of exemption from appearing in the examination. It has further been pleaded that no order on his exemption petition was passed. It was submitted by learned counsel for the petitioner that since no order was passed it will be presumed that exemption was granted by the authority concerned. Learned counsel for the petitioner has further submitted that in any event it was not a case in which by way of committing fraud, suppression of fact or making misrepresentation the petitioner had obtained increment. The petitioner had not committed any irregularities in getting the increment and after retirement the authorities were not authorized to recover the aforesaid amount on the plea of non-passing of Hindi noting and drafting examination. Learned counsel for the State while opposing the prayer made in the writ petition has asserted that the petitioner was never granted exemption from appearing in the examination. It has also been argued that in the writ petition there is no averment as to on which date the petitioner had filed petition for exemption. Since no 3 order for exemption was passed it will be deemed that the petitioner had un-authorisedly obtained increment without passing the examination, and as such, the authority concerned has rightly passed the order for recovery and recovery has been effected. Besides hearing learned counsel for the parties, I have also perused the materials available on record. It is not in dispute that there was no allegation of suppression of fact or making misrepresentation. Fact remains that after retirement of the petitioner an amount of Rs. 77,438/- was recovered from the retiral dues which has been reiterated in ‘Annexure – 3’ to the writ petition. Law on this issue has already been settled by the Apex Court in a case reported in 2009 (2) PLJR 74] (SC) (Syed Abdul Qadir & Ors. Vs State of Bihar & Ors.) . The Apex Court has clearly held that in absence of any allegation of fraud, misrepresentation or concealment of fact, after retirement recovery should not be effected. It would be appropriate to quote paragraph no. 27 of the Syed Abdul Qadir Case (Supra), which is as follows:- “27. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is 4 ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India, (1994)2 SCC 521; Union of India vs. M. Bhaskar, (1996)4 SCC 416; V. Ganga Ram vs. Regional Jt. Director, (1997)6SCC 139, Col. B.J. Akkara (Retd.) vs. Government of India & Ors., (2006)11 SCC 709; Purshottam Lal Das & Ors. vs. State of Bihar, (2006) 11 SCC 492; Punjab National Bank & Ors. vs. Manjeet Singh & Anr., (2006)8 SCC 647; and Bihar State Electricity Board & Anr. vs. Bijay Bahadur & Anr., (2000)10SCC99.” In view of the law settled by the Apex Court, the court is of the opinion that the recovery of Rs. 77,438/- had incorrectly been effected. Accordingly, the writ petition stands allowed. The Respondents authorities are directed to refund the deducted amount within a period of one month from the date of receipt/production of a copy of this order. The writ petition stands allowed. Praful ( Rakesh Kumar, J.)