IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2080 of 2005 BIPIN KUMAR son of late Rameshwar Prasad Singh, resident of Majhaulia Road Near Factory Inspector Officer, Muzaffarpur.-- -Petitioner. Versus 1. THE STATE OF BIHAR through secretary, Health Department, Bihar, Patna 2. Director in chief, Health Services, Bihar Patna 3. Superintendent, Sri Krishna Medical College, Hospital, Muzaffarpur 4. Accountant General, Bihar, Patna.- Respondents. ---- 5. 13.1.2010. Mr. Naresh Chandra Verma learned counsel for the petitioner, Mr. Ashutosh Singh learned AC to G.P.8 and learned counsel for the Accountant General are present. The petitioner is aggrieved by the order as contained in Annexure-2 to the writ petition whereby, upon re-fixation of his pay scale, an order of recovery of the excess amount said to have been drawn by him by reason of infirmity in pay fixation, has been ordered and pursuant thereto, an amount of Rs.93,960/- had been recovered from the petitioner. A counter affidavit has been filed on behalf of the State and its officials and in which it has been stated that though initially the petitioner was given the scale of Rs.5000/ to Rs.8000/- in the light of a letter dated 8.2.1999 serving on need based post along with others vide 2 order dated 6.11.2000 (Annexure-A) but upon reconsideration of the matter in the light of the objection raised by the Accountant General, Bihar in an identical case communicated vide letter no.Pen-4-1629 dated 10.10.2001, it was found that it was not admissible to provide selection grade to him and hence, in accordance with the objection raised by the Accountant General, Bihar the pay scale of the petitioner was revised and refixed in the scale of Rs.4000/ to Rs.6000/-. While doing so it was also found that by reason of such incorrect pay fixation, the petitioner had drawn an excess amount of Rs.93,960/ and which has been recovered from the gratuity amount of the petitioner vide order dated 12.8.2004 (Annexure-3) as impugned in the writ petition. Learned counsel for the petitioner submits that even while the respondents took such action of refixation of his pay scale, no notice was given to him nor he had been heard in the matter before passing of the order which had adverse affect on his retiral benefits and as such the order passed was in utter violation of the principles of natural justice. Learned counsel for the State submits that 3 since the pay scale of the petitioner had been fixed vide Annexure-A with the stipulation that in case in future any infirmity was found in the fixation of the pay scale then the excess amount so drawn by the persons named therein inclusive of the petitioner, would be recovered from them and hence there was no infirmity in the action of the respondents in effectuating recovery of the excess amount drawn by the petitioner. Having regard to the facts and circumstances, the arguments advanced on behalf of the respective parties and considering the material on record, I am of the opinion that no doubt there was a stipulation in the pay fixation order dated 6.11.2000 as contained in Annexure-A to the counter affidavit that if ultimately the pay fixation is not found to be in accordance with the rules, then the excess amount drawn by the concerned employee would be recovered from him but even while passing such order, the petitioner was definitely entitled to be heard in the matter before the final order of recovery was passed. In that view of the matter, the order as contained in Annexure-3 is set aside and respondent no.3, the Superintendent, Sri Krishna 4 Medical College Hospital, Muzaffarpur is directed to pass a fresh order after giving notice to the petitioner to represent his case in the matter and after considering the same. Needless to add that if the petitioner has been able to make out a claim for restoration of scale of pay of Rs.5000/ to 8000/- and is also able to substantiate that the recovery made from his gratuity amount is not tenable in law, the recovered amount should be refunded to him. However, in case the claim of the petitioner is not found to be supported by the rules on the issue, the same should be rejected by speaking and reasoned order. In either of the situations, the order may be passed within a period of three months from the date of receipt/production of a copy of this order. The writ petition stands disposed of with the directions aforesaid. ahk (Jyoti Saran,J.)