IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8570 of 2005 ARJUN PRASAD SINGH Versus THE BIHAR STATE ELECTRICITY BOARD & ORS. ----------- 07/ 24-02-2010 Heard Mr. Umesh Kumar Verma, learned counsel appearing on behalf of the petitioner and Mr. Dharmeshwar Mishra, learned counsel representing the Electricity Board. The petitioner who was appointed on the post of Bill Clerk on 18.11.1969, finally superannuated from the services of the Board 30.11.2004 while holding the post of Account Assistant. Upon non- payment of his post retiral benefits, the present writ petition came to be filed for payment of his post retiral benefits along with admissible interest. While the writ petition was pending consideration an order came to be issued bearing letter no. 1210 dated 5.12.2005, whereby the respondent Financial Controller while authorizing payment of gratuity amount has also directed for recovery of an amount of Rs. 94,151.70 said to be the excess salary drawn by the petitioner by reason of incorrect pay fixation. Since the said order came to be issued during the pendency of the proceeding, an interlocutory application bearing I.A. No. 849 of 2006 was filed on behalf of the petitioner seeking permission from this Court to assail the legality and validity of the gratuity payment order containing the order for recovery to that extent placed at Annexure-4 of the interlocutory application. The interlocutory application is allowed. - 2 - The petitioner is permitted to assail the orders sanctioning gratuity in so far as it relates to recovery of the amount of Rs. 94,151.70. A counter affidavit was filed on behalf of the respondent Board and in paragraph-5 thereof the details of the payment made by the Board towards pension, gratuity amount, pension arrear amount, leave encashment, G.S.S. and G.P.F. amount have set out together with details. It is also stated that an amount of Rs. 94,151.70 has been recovered from the gratuity of the petitioner said to be the excess pay drawn by the petitioner by reason of incorrect pay-fixation. Learned counsel for the petitioner submits that the order of recovery besides being arbitrary and having been carried out without following the principles of natural justice is also inequitable for the reason that the same has been effectuated much after the retirement of the petitioner. Learned counsel submits that it is not the case of the respondent Board that the petitioner had any role to play in his pay fixation nor it is the case of the respondents that the amount had been drawn by the petitioner by reason of any fraud or misrepresentation. In fact the petitioner has brought on record the details of the re- fixation by way of Annexure-3 to the interlocutory application contained in letter No. 155 dated 20.4.2005 and under which the pay of the petitioner has been revised right from the date of his initial appointment i.e. 1.4.1971 when the petitioner was drawing a basic salary of Rs. 74. Following the said re-fixation the respondents have revised the salary drawn by the petitioner for almost 34 years until his - 3 - retirement on 30.11.2004 and then came to a finding that the petitioner over the period of 34 years has drawn an excess salary of Rs. 94,151.70. This is per se arbitrary, equitable and cannot be permitted. The respondents have acted wholly unjustly in raking up an issue dating back almost 34 years and revising the salary on that basis. Taking into consideration the submissions of the learned counsel appearing on behalf of the petitioner and not controverted, the case of the petitioner does not fall within the exceptions warranting recovery as set out in the Full Bench decision of this Court reported in 2007(3) P.L.J.R. 398 (Ram Binod Singh Versus the State of Bihar). In that view of the matter, the impugned action of the authorities cannot be sustained nor the order sanctioning gratuity in so far as it relates to recovery, can be upheld and the same is set aside. The respondents are directed to remit the amount of Rs. 94,151.70 to the petitioner within a period of three months from the date of receipt/production of a copy of this order. The writ petition is allowed. S.Sb/- (Jyoti Saran, J.)