IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14431 of 2007 SHANTI DEVI & ORS. Versus THE BIHAR STATE ELECTRICITY BOARD & ORS. ----------- 13/ 15.10.2009 Heard learned counsel for the petitioner and Mr. Vinay Kirti Singh, learned counsel appearing on behalf of respondent Board. This writ petition was originally filed by Ram Nandan Prasad Singh, Office Superintendent under the respondent Electricity Board who retired on 31.7.2005. The petitioner filed the present writ petition for payment of his retiral benefits which has been enumerated in paragraph-1 of the writ application relatable to gratuity, leave encashment, arrears of pension and arrears of differential pension together with interest. During the pendency of the writ application the original petitioner Ram Nandan Prasad Singh expired on 16.9.2008 and an Interlocutory Application bearing No. 6326 of 2008 came to be filed on behalf of his legal heirs for being substituted in his place which was allowed by this Court vide order passed on 17.2.2009. It is admitted position that admissible dues with admissible interest has been paid to the petitioner, save and except the amount of Rs. 1,18,359/- recovered from the gratuity amount of the petitioner said to be excess amount paid to the petitioner by reason of incorrect pay fixation. The matter as it rests today is limited to the recovery - 2 - of the amount of Rs. 1, 18, 359/- said to be the excess payment made to the petitioner by way of an incorrect pay fixation, from his gratuity amount. Although the writ petitioner has not specifically challenged the order of recovery but has questioned the same in paragraph-3 of the writ petition. On oral prayer made on behalf of the writ petitioner seeking permission to challenge the legality of the order bearing Memo No. 881 dated 23.11.2006 (Annexure-1), this Court permits the petitioner to assail the said order in so far as it directs recovery of an amount of Rs. 1, 18, 359/- from the gratuity amount of the petitioner. There is no averment in the counter affidavit that the pay fixation of the petitioner during his service tenure was by reason of any fraud or misrepresentation exercised by the petitioner or the incorrectness thereof could be in any way attributable to him. The admitted position is that neither any proceeding was initiated by the respondents during the service tenure of the petitioner on this aspect nor the petitioner was given any opportunity of being heard before the decision to recover the amount in question was taken. It is only after a lapse of almost one and half years of the retirement of the petitioner that the present order as contained in Annexure-1 seeking to recover the amount was passed by the Financial Controller. The position is well settled by a catena of judgments of - 3 - this Court that unless the employer is able to establish that the functionary was in any way connected with the higher pay fixation or the said pay fixation was an outcome of any fraud or misrepresentation played by the said employee, no recovery proceedings can be initiated after his retirement. It is equally settled that no order can be passed in violation of the principles of natural justice. In the present case neither the petitioner has been given any notice nor has been heard in the matter nor he is charged of being party to the pay fixation. Thus none of the preconditions justifying recovery stand satisfied in the present case. In view of the settled principles on this issue the order bearing Memo No. 881 dated 23.11.2006 (Annexure-1) in so far as it seeks to recover the amount of Rs. 1, 18, 359 /- from the gratuity amount of the petitioner, is set aside, and the petitioner would be entitled to receive the said amount. As it is a case of retired deceased employee, the respondents would be well advised to refund the said amount to the petitioner within a period of two months from the date of receipt/production of a copy of this order. The writ petition is allowed to the aforementioned extent. S.Sb/- (Jyoti Saran, J.)