IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.644 of 2003 BINDESHWAR PRASAD, aged about 57 years, S/o late Dhanraj Paswan, resident of Mohalla Kailuchak, P.O. Masaurhi, P.S. Masaurhi, Patna, presently posted as Accountant, Animal Husbandry Department, Central Range, Administrative Compound, Patna-14 … Petitioner. Versus 1. THE STATE OF BIHAR through the Secretary cum Commissioner, Animal Husbandry and Fisheries (Animal Husbandry, New Secretariat, Patna) 2. Director, Animal Husbandry Department, New Secretariat, Patna 3. The Regional Director, Animal Husbandry Department, Central Range, Veterinary College Compound, Patna-14 4. The District Accounts Officer, Patna Collectorate, Patna … Respondents. ----------- 8. 10.7.2009 Heard Mr. Deogovind Prasad, learned counsel for the petitioner and Mr. Ritesh Kumar Lal, learned Assistant Counsel to S.C.XI. The prayer of the petitioner in this writ application reads as follows: “ To quash the statement of pay fixation contained in Annexure 10 dated 28.9.2002 fixing his pay in the scale of Rs. 4000/- to 6000/- contrary to earlier pay fixation made in the scale of Rs. 4000/- to 7000/- and thus thereby reducing his pay scale by 1000/- per month right from 1.1.1996 by respondent nos. 3 and 4. To quash the consequent recovery order vide Annexure 11 dated 28.10.2002 in case of excess payment, if any. 2 To stay the operation of Annexures 10 and 11 till disposal of writ application. To give effect to pay fixation made by the officers of the respondents no. 3 and 4 in the scale of Rs. 4500-7000 plus other admissible allowances vide statement of pay fixation made on 9.6.1999, 10.5.2000 and with effect from 1.1.1996 (Annexure 5 and 6) giving effect to the provisions made in Government Resolution No. 660 dated 8.2.1999 with amendment (Annexure 4 series).” Mr. Prasad, counsel for the petitioner, in support of the aforementioned prayer with reference to the pleadings on record would submit that even if everything said by the respondents in the impugned order or in the counter affidavit is accepted to be correct an adverse order lowering his pay and emolument and that too with a direction to make recovery, could not have been passed without affording an opportunity to the petitioner to explain his case that his earlier pay fixation was not illegal or contrary to the Government 3 Resolution dated 8.02.1999. In this context he has referred to the impugned orders, as contained in Annexures 10 and 11, to contend that from their perusal it would be clear that such pay fixation and reduction of pay with consequential action of recovery was directed without any notice and/or opportunity of hearing to the petitioner. Mr. Lal, counsel for the State, on the other hand, with reference to the stand taken in the counter affidavit, would submit that it was the petitioner who by virtue of being Head Clerk of the office had got his pay fixed in a higher pay scale to which he was not entitled in terms of the resolution 8.2.1999 and therefore, if such apparent anomaly was detected at the instance of District Accounts Officer the petitioner cannot object to the remedial action for refixation of his pay and recovery of excess amount admittedly drawn by him. Specially when he has not been able to establish his entitlement even before this Court. In the opinion of this Court even if the action taken by the respondent State 4 and its official was correct, the same being penal in nature with civil and evil consequences, the principles of natural justice was required to be followed. The moment it was found that the petitioner had misrepresented and had got his higher salary fixed by misutilising his position, the authorities ought to have given a show cause notice, especially when the District Accounts Officer had pointed out the anomaly in pay fixation. Admittedly such a recourse was not taken. This Court, therefore, would quash both the impugned orders and remit the matter back to respondent no.2 Director, Animal Husbandry Department, who now would afford opportunity of hearing to the petitioner. The petitioner, who has since superannuated from service with effect from 1.1.2005, is directed to appear in person or through his representative before respondent no.2 within a period of one month from the date of receipt/ production of a copy of this order and the Director would afford an opportunity of hearing to the petitioner and 5 would also take into consideration any records that may be produced by the petitioner. The Director would thereafter pass his final order and if he would find that the pay fixation of the petitioner was made correctly he would direct for restoration of all the benefits to the petitioner in the earlier pay scale but on the contrary if he would find that the petitioner was not entitled to pay scale in terms of the resolution of the Finance Department dated 8.2.1999 he would pass a reasoned order for refixation of the salary of the petitioner as also recovery of excess amount in easy installments. Let it be made clear that this Court has not gone into the merits of the case and has simply remitted the matter to the Director who is the head of the Department and is empowered to take such a decision in the matter of pay fixation and/or realization of excess amount, if any. It goes without saying that if an adverse order is passed against the petitioner, he will have a liberty to move 6 the competent court of law. The interim order passed in this case on 17.1.2003 staying recovery from the salary of the petitioner shall continue till an order as indicated above by the Director is passed. With the aforementioned observations and directions, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/