IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1108 of 2011 In Civil Writ Jurisdiction Case No. 13354 of 2008 With Interlocutory Application No. 5237 of 2011 In Letters Patent Appeal No. 1108 of 2011 ====================================================== Ram Saran Singh, S/o Late Sahdeo Singh, R/o Village- Nanauri, P.S. Akbarpur, District- Nawada. .... .... Appellant/s Versus 1. The State of Bihar through the Chief Secretary, Bihar Patna. 2. The Secretary, Road Construction Department, Bihar Patna. 3. The Chief Engineer (Yantrik), Yantrik Upbhag, Path Nirman Vibhag, Bihar, Patna. 4. The Superintending Engineer ( Yantrik). Rastriya Uchha Path Yantrik Anchal, Patna 5. Executive Engineer, Rastriya Uchha Path. Yantrik Parmandal. Nawada .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Sanjeev Ranjan with Mr. Sanjeev Shankar, Advocates. For the Respondent/s : Mr. Syed Arshad Alam, S.C. 3. Mr. Gautam Kumar Yadav, A.C. to S.C. 3. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 5 04-11-2011 Feeling aggrieved by the judgment and order dated 3rd May 2011 passed by the learned single Judge in above CWJC No. 13354 of 2008, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent in so far as the learned single Judge has upheld the recovery of the excess salary paid for the period from 1981 to 1996. The appellant joined the service of the State Patna High Court LPA No.1108 of 2011 (5) dt.04-11-2011 2 / 4 2 Government in the Road Construction Department as a Cleaner in the work charged establishment. On 7th February 1981, the appellant was promoted as a Plant Operator in the scale of Rs. 205-284 by the then Superintending Engineer (Mechanical). The said order was modified on 21st April 1988 by the Executive Engineer, Mechanical Division, Hazaribagh. By the said order, the appellant was posted as a Batching Plant Operator in the Scale of Rs. 335 - Rs. 555/- retrospectively with effect from 7th February 1981. The appellant continued to serve as Batching Plant Operator till his retirement from service in 2010. However, an action was initiated against the appellant in 1999. Under order dated 24th June 2008 his posting as Batching Plant Operator was terminated and he was posted as Plant Operator. The said order was challenged by the appellant in above CWJC No. 13354 of 2008. Pending the writ petition, by order dated 12th March 2011 a recovery in the sum of Rs. 6, 40,884.00 was ordered. The said order was challenged by the appellant by filing Interlocutory Application No. 3030 of 2011. The petition was contested by the State Government. According to the State Government the appellant was not eligible for appointment as Batching Plant Operator nor was he considered for such promotion. The order of the Superintending Engineer made on 7th February 1981 could not have been modified by the Executive Engineer. Thus, the then Executive Engineer had acted in excess of his authority. The beneficiary was the appellant. The learned single Judge has allowed the writ petition partially. The order of recovery of excess salary for the period from 1996 till the date of retirement of the appellant has been set aside by the learned single Judge. However, the recovery from Patna High Court LPA No.1108 of 2011 (5) dt.04-11-2011 3 / 4 3 1981 to 1996 has been upheld. We have heard the learned Advocates extensively. To us, it appears that the impugned order of recovery has been made without giving opportunity to the appellant to show cause. In our opinion, however bad the order of promotion or posting may be; although the appellant may be the beneficiary of a totally illegal and unauthorized order made by the Executive Engineer as alleged; the minimal of the principle of natural justice requires that the appellant be given an opportunity to show cause. The impugned order dated 12th March 2011 has evidently been made in violation of the principle of natural justice. The said order, therefore, deserves to be set aside on that ground alone. As to the challenge to the order of posting as a Plant Operator, we are of the opinion that the challenge does not survive as the appellant has now retired from service. In above view of the matter, the Appeal is allowed. The impugned judgment and order dated 3rd May 2011 passed by the learned single Judge in above CWJC No. 13354 of 2008 is set aside. CWJC No. 13354 of 2008 is allowed to the extent that the impugned order dated 12th March 2011 seeking recovery of Rs. 6, 40, 884/- from the appellant is set aside. It is clarified that the respondent-State Government shall be at liberty to initiate the proceeding de novo in the same subject matter. Considering the fact that the appellant has now retired from service, we direct that the State Government will initiate action for recovery of the alleged excess payment of salary from the appellant as early as possible, but not beyond six weeks from today. The appellant will be served notice to show cause as to why recovery of the excess payment of salary should not be Patna High Court LPA No.1108 of 2011 (5) dt.04-11-2011 4 / 4 4 made. The appellant will submit reply to such show cause notice within three weeks from the date of the receipt of the show cause notice. The State Government will make appropriate order within six weeks from the date of the receipt of the reply. The appellant may be given opportunity of personal hearing, if he so desires. In the event, the State Government makes order of recovery of excess amount of salary paid to the appellant, the State Government will make speaking order. The appellant will be at liberty to challenge such order. Interlocutory Application stands disposed of. Sujit/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)