Civil Writ Jurisdiction Case No. 7569 of 2005 …………… In the matter of an application under Article 226 of the Constitution of India. ………. Ram Prakash Prasad …... Petitioner. Versus Bihar State Electricity Board & Ors. …… Respondents. For the Petitioner : Mr. R.K. Sinha For the Bihar State Electricity Board and others : Mr. Vinay Kirti Singh ……….. O R D E R THE HON’BLE MR. JUSTICE JYOTI SARAN ---------- 11 Jyoti Saran, J. Heard Mr. R.K. Sinha, learned counsel appearing on behalf of the petitioner and Mr. Vinay Kirti Singh, learned counsel appearing on behalf of the Bihar State Electricity Board. With the consent of the parties this matter has been taken up for disposal at the stage of admission itself. The petitioner retired from the post of Sectional Clerk on 31.7.2004. The present writ petition came to be filed on behalf of the petitioner by reason of his non-payment of the post retiral dues including pension, gratuity, general provident fund, group savings scheme ( with upto date interest), leave encashment and arrears of salary. The petitioner also prayed for quashing of the order bearing No. 15 dated 18.3.2005 (Annexure-1) whereby the pay of the petitioner had been revised and reduced by reason of his passing the Hindi Noting and Drafting Examination on 6.1.1992 and for the said reason his increments from 16.7.1979 to 5.1.1992 had 2 been recalled with further directions for recovery of the excess amount paid to him. During the pendency of the present proceedings the following payments were made to the petitioner which was brought on record by way of counter affidavit filed on behalf of the respondents, namely- (A) Group Savings Scheme, amount of Rs. 45,375/- was paid vide cheque no. 63314 dated 26.7.2005. (B) Leave encashment, amount of Rs. 77,988/- was paid vide cheque no. 63314 dated 26.7.2005. (C) Increment arrears of Rs. 6,446/- was paid vide cheque no. 63314 dated 26.7.2005. (D) G.P.F., a sum of Rs. 4, 21,023/- was paid vide cheque no. 78770/- dated 6.9.2005. In the said counter affidavit it was stated that an amount of Rs. 33,203/- was recovered from the gratuity amount of the petitioner as on account of wrong fixation of pay, the petitioner had received increments without passing the Hindi Noting and Drafting Examination and thus the same was not admissible. Thus when the matter was taken up for disposal the following claims of the petitioner remained pending for adjudication, namely, (a) The validity of the order bearing no. 15 dated 18.3.2005 (Annexure-1) ; (b) Refund of the amount of Rs. 33,203/- which was recovered from the gratuity of the petitioner pursuant to Annexure-1; 3 (c) Re-fixation of his pension and gratuity after giving the benefits of increments which stood withdrawn by Annexure-1 and payments of arrears accruing by reason thereof; (d) Statutory interest on the amount of G.P.F. for the period August, 2004 to August, 2005 as the same was paid in September 2005 and interest on gratuity at the rate prescribed under the payment of Gratuity Act, 1972 of gratuity for the delayed payment thereof by the respondents after one year. The petitioner admittedly passed the Hindi Noting and Drafting Examination on 6.1.1992 which is manifest from the impugned order dated 18.3.2005 as contained in Annexure-1 to the application. Thus the only issue which requires determination is as to whether the petitioner having admittedly passed the Hindi Noting and Drafting Examination on 6.1.1992, the respondents have any authority to withdraw his increments for anterior period i.e. prior to 6.1.1992 and make recovery thereof from the gratuity amount of the petitioner and whether the order dated 18.3.2005 (Annexure-1) has any lawful support. Learned counsel appearing on behalf of the petitioner has relied upon a number of judgments of this Court and the Apex Court in support of his contentions that the action of the respondent authorities was without sanction of law and that they had no jurisdiction to revise and reduce his pay and allowances since after his retirement on grounds of delayed passing the Hindi Noting and Drafting Examination. 4 I have heard learned counsel appearing on behalf of the parties and have perused the materials on record. Admittedly no proceedings had been initiated against the petitioner during his service tenure with reference to the issue raised by the respondents. In fact not even a show cause was asked from the petitioner who retired on 31.7.2004 and the order impugned as contained in Annexure-1 was issued on 18.3.2005. Thus the order of revision of the pay and allowances of the petitioner and the order of recovery of his increments relating to the period 16.7.1979 to 5.1.1992 on grounds of the petitioner having passed the Hindi Noting and Drafting Examination on 6.1.1992 and thus was entitled for the said increments only from 6.1.1992 onwards prima facie appears to be arbitrary and unsustainable in law having been issued in gross violation of the principles of natural justice. Apart from the position discussed above, the order impugned is also not sustainable in view of the law laid down by this Court in the Division Bench judgment of this Court dated 19.5.1998 rendered in C.W.J.C. No. 1007 of 1997 (Bijay Bahadur Vs. B.S.E.B. & Ors.) and C.W.J.C. No. 4576 of 1997 (Bashishtha Naraian Prasad Versus B.S.E.B. & Ors). It was held that no sooner the employee passes the examination i.e. the Hindi Noting and Drafting Examination, he becomes entitled to all increments as if the stoppage never took place. The issue which comes for consideration before this Court is 5 identical to the issue involved in the Division Bench Judgment (supra). The petitioners of the said case had passed the Hindi Noting and Drafting Examination in the year 1993. The authorities of the respondent Board ordered for recovery of the amounts which had been given to the petitioners of the said case for the period prior to their passing of the Hindi Noting and Drafting Examination in the year 1993, as according to them, it was condition precedent for grant of annual increments in terms of the policy of the Board. The Division Bench held that as the increment was paid to the petitioner by the Board without any misrepresentation coupled with the fact that the writ petitioners had already passed the Hindi Noting and Drafting Examination in the year 1993 itself, hence the Board could not be allowed to order for recovery of the said amount. The judgment of the Division Bench was upheld by the Apex Court by a judgment reported in (2000) 10 SCC 99 (B.S.E.B. & Anr. Vs. Bijay Bahadur & Anr). In another case arising from C.W. J.C. No. 18126 (Ram Binod Singh Vs. B.S.E.B. & Anr.) involving identical issues, which was also subject matter of the Full Bench Judgment reported in 2007(3) P.L.J.R. page 398, upon remand was considered and allowed vide order dated 21.7.2009 by a Bench of this Court. In the said case also the increments had been withdrawn and recovery had been made for reasons that the said petitioner had passed the Hindi Noting and Drafting Examination in 1992. This issue was also a subject matter of a batch of cases 6 arising from C.W.J.C. No. 11249 of 2002 (Jagat Narain Prasad Versus B.S.E.B. & ors), and other analogous cases and a Bench of this Court vide order dated 26.3.2009 was pleased to allow the writ application and held that no recovery of increments could be effected on grounds that the concerned employee had passed the said examination subsequently. Following the judicial pronouncements (supra), it becomes clear that the order as contained in Annexure-1 to the writ petition revising and reducing the pay-scale of the petitioner by withdrawal of his increments earned by him until 5.1.1992 after his retirement and without issuance of even a show cause notice to the petitioner much less hearing him, is arbitrary, in violation of the principles of natural justice and thus is unsustainable in law. In the result, the writ application is allowed and the order bearing memo no. 655 dated 18.3.2005 (Annexure-1) is set aside. The petitioner shall be entitled to refund of the amount of Rs. 33,203 recovered from his gratuity amount pursuant to the order as contained in Annexure-1 and other consequential reliefs viz. revision and re-fixation of his pensionary benefits and the arrears thereof. The revision and re-fixation of the pensionary benefits together with its arrears and the amount of Rs. 33,203/- being the recovered amount of gratuity should be paid to the petitioner within a period of three months from the date of production of a copy of this order. The petitioner would also be entitled to statutory interest on the G.P.F. amount for the period August, 2004 to August, 2005 7 as admittedly the G.P.F. dues were paid to him in September, 2005 although it became due on 31.7.2004 being his date of retirement. The said amount towards interest on G.P.F. shall also be paid to the petitioner within the period stipulated above, if not already paid. The claim of interest of 5 per cent per annum on the delayed payment of gratuity in the light of the provision of the Payment of Gratuity Act, 1972 however is not sustainable, in view of the Division Bench judgment of this Court reported in 2004(1) P.L.J.R. 635 (Janak Prasad Singh Vs. B.S.E.B. & Ors). This writ petition is allowed to the aforementioned extent. Patna High Court Dated: 19th November, 2009 S.Sb/- / N.A.F.R. (Jyoti Saran, J.)