LETTERS PATENT APPEAL No.761 OF 2005 ****** Against the order dated 29.03.2005 passed by a learned Single Judge of this Court in C.W.J.C. No.13320 of 2004. ****** 1. BIHAR STATE ELECTRICITY BOARD, PATNA, through its Secretary, Bailey Road, Patna. 2. The Deputy Director of Accounts (Head Quarter), Bihar State Electricity Board, Patna. …… Respondents…….Appellants. Versus 1. RAJ BANSHI SINGH, Son of Late Mukhlal Singh, resident of Village- Bhawani Tola Rampur Diara, P.S.- Maner, District- Patna, retired Correspondence Clerk, Electric Supply Division, Ekangarsarai (Nalanda). …..Writ petitioner…...... Respondent. 2. The General Manager-cum- Chief Engineer, Central Bihar Area Electricity Board, Patna. 3. The Executive Engineer, Electric Supply Division, Ekangarsarai (Naland), District- Nalanda 4. The Account Officer, Nalanda Electric Supply Circle, Biharsharif …..Respondents---- Respondents. ****** For the Appellants: Mr. Vijay Kumar Verma, Advocate For the Respondents: Mr. Arun Kumar, Advocate. ****** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMARKATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ******* S.K. Katriar, J The Bihar State Electricity Board, Patna (hereinafter referred to as the „Board‟) has preferred this appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna, and are aggrieved by the order dated 29.03.2005, passed by a learned Single Judge of this Court in C.W.J.C. No. 13320 of 2004, whereby the writ petition has been allowed, the authorities have been directed not to recover excess payment made by way of salary to the petitioner while he was in service and refund the amount recovered from the petitioner‟s gratuity amount . 2. We have perused the materials on record and considered the submissions of the learned counsel of the 2 parties. The petitioner joined the services of the Board on 2.5.1963, and superannuated on 28.2.2003, while posted as senior correspondence clerk under the Electric Supply Division, Ekangarsarai, district Nalanda. The Board after his retirement took steps for recovery of a sum of Rs. 31,227/- from the amount of gratuity payable to the petitioner on the ground that way back in 1971, his pay has been erroneously fixed leading to recovery of the amount after superannuation. Paragraph 8 of the counter affidavit filed in the writ petition is reproduced hereinbelow: “The petitioner‟s pay fixation from the date of his joining the Board on 2.5.1963 to 1.8.2002 was examined at the Central Electric Supply Area Office. On examination petitioner‟s pay fixation it was found that his pay in the revised scale with effect from 1.4.1971 was not correctly fixed. The petitioner as per service book had drawn Rs. 278/- on 2.5.1971 after his pay was fixed at Rs. 269/- as on 1.4.1971 which was wrong as his correct pay on 1.4.1971 should have been Rs. 260/- and Rs. 269/- as on 2.5.1971. Consequently as the petitioner‟s pay as on 1.4.1971 was wrongly fixed therefore his subsequent pay were also wrongly fixed resulting in petitioner drawing higher pay than his entitlement. On grant of Super Selection Grade on the post of correspondence clerk with effect from 1.8.1988 his pay was wrongly fixed at Rs.2110/- as on 1.8.1988 and at Rs.2715/- as on 1.8.2000. However, his correct pay should have been Rs.2055/- as on 1.8.1988 and Rs. 2660/- as on 1.8.2000. Further on the employees of the Board being allowed revised pay scale with effect from 1.1.1996 the petitioner‟s pay on 1.1.1996 was wrongly fixed at Rs.7555/- and at Rs.8380/-, Rs.8545/- and Rs.8710/- as on 1.8.2000, 1.8.2001 and 1.8.2002. On his pay being correct by the office of the General Manager cum Chief Engineer, C.E. S.A. on 31.3.2003, as aforesaid, the petitioner‟s correct pay as on 1.1.996 was fixed at Rs.7390/- and consequently at Rs.8215/-, Rs.8380/- and 3 Rs.8545/- as on 1.8.2000, 1.8.2001 and 1.8.2002.” 3. The excess amount so paid to the petitioner from 1971, till the date of his superannuation, be recovered from the petitioner has not been approved by the learned Single Judge and the writ petition has been allowed. Hence this appeal at the instance of the Board. 4. It is evident that on the own showing of the Board that the error in fixation of salary had taken place way back in 1971, and was detected after his superannuation on 28.2.2003. It appears to us from the materials placed before us that no responsibility is attributable to the writ petitioner for the excess payment. It was an error entirely on the part of the functionaries of the Board. The question for consideration, therefore, is that in a situation where the employee had received salary in excess of his entitlement can normally be recovered from him after a long lapse of time, particularly after his superannuation from service. This issue has already been settled by a Full Bench judgment of this Court in Ram Binod Singh Vs. Bihar State Electricity Board and others (2007(3) P.L.J.R. 398). Paragraph 26 of the judgment is reproduced hereinbelow: “26. The relevant provisions of the Indian Contract Act, particularly Section 72 cover cases of mistake of fact as well as law and provide for recovery. The principle of restitution in case of unjust enrichment is also an accepted principle for ensuring justice in appropriate cases. Hence, in law, the position appears to be clear that there is not legal bar in ordering for recovery from retired employees where they have received money benefits on account of mistake at the ministerial level in the matter of fixation of 4 pay, grant of increments or time bound promotions when the condition precedent for such promotion were clearly non est. However, it has been correctly submitted on behalf of the petitioners that the theory of simple mistake or error to justify recovery will not hold good where the grant did not suffer from patent illegality or perversity so as to attract the Wednesbury Principle or the vice of malafide in law. For example, where two interpretations of a provision were possible and one was consciously approved and adopted by the competent authority meant to be applied generally to all concerned, any error in such decision of the competent authority if corrected at a later stage may be ordered to apply only prospectively. More so, if the decision has been followed for many years. In other words, if on reinterpretations or adjudication the earlier view permitting the grant of monetary benefits is found to be by a competent authority and bona fide but wrong, mistaken or erroneous, then ordinarily no recovery should be made unless the excess payment already made is covered by the two exceptions pointed out in the case of Madan Mohan Prasad (supra). But if the grant was by way of undue favour, arbitrary, malafide, ultra vires and/or void ab initio, recovery of public money should be the normal course. In such cases of clear disobedience of polity or rules by ministerial action or clear dishonest decision causing undue loss to public money, action against the concerned authority may also be justified to prevent and discourage plunder of public money by sheer disregard of clear law. The constitutional schemes of rule of law and fairness in public action support recovery in such cases unless law of limitation or waiver etc. are successfully invoked to show that they prevent such a course in the facts of any particular case.” 5. The Full Bench has held that after the grant of monetary benefit is found to be paid by a competent authority and bonafide but wrong mistaken or erroneous, then ordinarily no recovery should be made unless the excess payment already made is covered by the two exceptions pointed out in the case 5 of Bihar State Electricity Board and others Vs. Madan Mohan Prasad and others (2001(2) P.L.J.R. 58), wherein it has been held as follows: “Law is well settled that money benefit paid to an employee in excess of his entitlement should not normally be recovered from him after a long lapse of time, particularly after his superannuation from service. It is, however, subject to two exceptions, namely, if the order granting the money benefit itself stipulates that the same is liable to be recovered if found erroneous at a later stage or is subject to approval by authorities. The second exception is that such a money benefit can be recovered if it is found at any later stage that the same had flowed to the employee on account of fraud, misrepresentation or the like attributable to him.” 6. It thus appears to us that the writ petitioner‟s case is covered by the Full Bench judgment in Ram Binod Singh‟s case (supra). The impugned order passed by the learned Single Judge is consistent with the view taken by the Full Bench. We agree with the same. 7. In the result, this appeal is dismissed. In the circumstances of the case, there shall be no order as to costs. (S.K. Katriar, J.) Birendra Prasad Verma, J. I agree. (Birendra Prasad Verma, J.) Patna High Court, Patna Dated the 27th day of August, 2010. Rahman/(NAFR).