IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12006 of 2009 Ram Bachan Mishra, son of Late Gupteshwar Mishra, Resident of Village and P.O. Nawadih Via-Indrapuri, P.S. Indrapuri, District- Rohtas (Sasaram). …………..Petitioner. Versus 1. Bihar State Electricity Board through its Chairman Vidyut Bhawan, Bailey Road, Patna. 2. The Chairman, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 3. Financial Controller-I, Bihar State Electricity Board, Patna. 4. Director Terminal Benefit, Bihar State Electricity Board,Patna. 5. Deputy Director of Accounts (Sectt.) Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 6. Accounts Officer (Finance) Bihar State Electricity Board Bidyut Bhawan, Bailey Road, Patna. 7. General Manager-cum-Chief Engineer, Central Bihar, Area Electricity Board, B.S.E.B., Vidyut Bhawan, Bailey Road,Patna. 8. Electrical Superintendent Engineer, B.S.E.B., Rohtas, Electric Anchal, Rohtas, District-Sasaram. 9. The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. ……Respondents. ----------- 6. 01. 02. 2010. As prayed for, learned counsel for the petitioner is permitted to add The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Patna as Respondent No. 9. Heard learned counsel for the petitioner and the Respondent-Board. The grievance of the petitioner is that a sum of Rs. 3,50,000/- has been sanctioned as death-cum-retirement Gratuity to the petitioner. However, a sum of Rs. 1,10,675/- was directed to recovered from the sanctioned amount of Gratuity on account of excess pay drawn due to wrong pay fixation vide Memo No. 677, dated 2nd July, 2009, as contained in Annexure-2 of the writ application. 2 Learned counsel for the petitioner categorically stated in the supplementary affidavit in paragraphs 4, 5 and 6 to the effect that the salary of the petitioner was fixed in the light of the Office Order No.2, contained in Memo No. 52, dated 11. 01. 1994, as the person junior to the petitioner was receiving higher emolument and as such the petitioner was also entitled for enhanced his salary as contained in Annexure-3. It is further submitted on behalf of the petitioner that in the aforesaid re-fixation of salary, petitioner at no point of time to commit any fraud or misrepresented the authority for fixation of salary and as such petitioner can not be penalised after long delay that too after his retirement no deduction from the Gratuity amount could be made, notwithstanding the fact that the petitioner salary was correctly fixed The aforesaid amount of Rs. 1,10,675/- which recovered from Gratuity, petitioner would entitle to get refund with due interest. Besides above, it is submitted that petitioner was paid his dues on account of Provident Fund after a long delay and, as such, petitioner is also entitled to interest over such delayed payment. Learned counsel appearing on behalf of the Board submits that since the salary of the petitioner was fixed in excess by mistake and as such it was rightly recovered. Considering the submissions and on perusal of 3 Annexures 2 and 3, in the opinion of this Court it is not permissible in law on the part of the Board to deduct any amount from the retiral dues. The law is well settled the inference of any fraud or misrepresentation on the part of the employee in receiving the excess payment by way of enhancing salary fixed by the authority, the excess amount paid is not recoverable from the retiral dues, reference may be made of the decision of the Apex Court (Syed Abdur Quadir Versus State of Bihar reported in 2009 (2) B.B.C.J. 79 (SC) (Pr.27). In the above circumstances, part of the order whereby aforesaid amount of Rs. 1,10,675/- was directed to be recovered is quashed. Respondent No. 9 is directed to ensure the refund of the aforesaid amount with statutory interest expeditiously preferably within a period of three months on receipt/production of certified copy of the present order. It would be open for the petitioner to represent before Respondent No. 9 claiming interest on account of delayed payment over Gratuity amount as well as Provident Fund which shall be considered as per law. With the above observations/directions, the writ application stands disposed of. m.p. (Shailesh Kumar Sinha,J.)