IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4063 of 2007 SURENDRA SHARMA Versus THE BIHAR STATE ELECTRICITY BOARD & ORS. ----------- 7/ 17.05.2010 I.A. No. 4511 of 2007. The interlocutory application has been filed seeking permission of this Court to challenge the recovery effected in the light of the stipulations present in the gratuity payment order bearing memo no. 697 dated 21.8.2007 (Annexure-5). The interlocutory application in terms of the prayer made therein is allowed. Heard Mr. Sanjay Kumar, learned counsel for the petitioner and Mr. Dharmeshwar Mishra, learned counsel for the Bihar State Electricity Board. The petitioner superannuated from the post of Office Superintendent with effect from 31.7.2006. Admitted position is that during the pendency of the proceedings the entire dues to which the petitioner has been found entitled has been paid, save and except an amount of Rs. 1,51,555/- which have been recovered from the gratuity amount by reason of the stipulation present in the gratuity payment order bearing memo no. 697 dated 21.8.2007 placed at Annexure-5 of the interlocutory application. Learned counsel for the petitioner submits that the recovery of the amount of Rs. 1,51,555/- is most arbitrary, 2 unreasonable and in gross violation of principles of natural justice. It is submitted that neither any show cause was issued to the petitioner nor any proceedings were held in this regard and the order of recovery has been passed unilaterally. He thus submits that the recovery effected pursuant to the stipulation provided in the gratuity payment order as contained in Annexure-5 is wholly arbitrary, unreasonable and without sanction of law. Mr. Dharmeshwar Mishra, learned counsel for the Board, with reference to the statements made in the supplementary counter affidavit, submits that during the course of verification of his records in the process of finalization of pension, it was found that the pay of the petitioner had been incorrectly fixed and that he had availed promotional pay benefits twice; firstly, at the stage of selection grade against the post of Correspondence Clerk and secondly, on promotion to the post of Head Clerk. He thus submits that the recovery stipulation of Rs. 1,51,555/- is in accordance with law being the excess pay drawn by the petitioner on account of the double pay- fixation. I have heard learned counsel for the petitioner and learned counsel for the Board. The issue regarding grant of double benefits stands concluded by a Bench decision of this Court reported in 2010(1) P.L.J.R. 347 (Satyanarayan Lal Vs. The Bihar State 3 Electricity Board & Ors.) A Bench of this Court upon examination of the relevant Circulars of the Board bearing office order dated 19.11.1974, order no. 515 dated 7.5.1976 and order no. 125 dated 7.5.1983 has held that the facility of fixation of pay along with 12 per cent additional benefits on the basic pay was available to the employees of the Board under the office order dated 19.11.1974 and was eclipsed for a short while under the order no. 515 dated 7.5.1976, only to the extent of the workmen but the position was again restored under the order no. 125 dated 7.5.1983. It was thus held that it was the decision of the Board itself to pay an additional amount of 12 per cent of basic salary in addition to the promotional scale. It was further held that a workman could not be discriminated in the matter of fixation of the pay-scale by grant of the said benefits as the same would amount to hostile discrimination and also would be patently arbitrary. The grant of promotional benefits twice was thus upheld. Thus following the Bench decision aforesaid, coupled with the fact that the process of re-fixation has been carried out much after the retirement of the petitioner and that also without any notice or hearing being provided to the petitioner, the same cannot be sustained. The impugned recovery is unsustainable on merits as also by reason of the failure of the respondent authorities in following the procedure as envisaged under law. In the circumstances, the writ petition is allowed with a 4 direction to the respondent no. 5 to ensure the remittance of the amount of Rs. 1,51,555/- recovered from the gratuity payable to the petitioner under the order dated 21.8.2007 (Annexure-5) within a period of three months from the date of receipt/production of a copy of this order. S.Sb/- (Jyoti Saran, J.)