IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.658 of 2006 SHIV SHANKAR PRASAD SINGH son of late Kapildeo Singh resident of village Dighilal Pokhar, P.O. Dighikala, P.S. Sadar District Vaishali (Hajipur) Versus 1. THE STATE OF BIHAR through the Chief Secretary Government of Bihar, Patna. 2. The D.G. cum I.G.Bihar, Patna. 3. The S.P.Madhepura. 4. The Director, Provident Fund, Bihar, Patna. 5. The District Provident Fund Officer, Madhepura. 6. The Accountant General, Bihar, Patna. 7. The Treasury Officer, Madhepura. ----------- 3 29.01.2010 Heard learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the State. The petitioner retired from the post of Assistant Sub-Inspector of Police with effect from 30.6.2004 and being aggrieved by the action of the parties in not making payment of his post retiral benefits preferred to move this Court through the present writ petition seeking a direction to the respondents for payment of his post retiral benefits and other dues. A counter affidavit was filed on behalf of the respondents and in paragraph 4 thereof the details of the payments made to the petitioner has been set out. It is indisputed 2 that the entire admissible retiral dues of the petitioner have been paid to him except the amount towards unutilized leave salary. In that regard statement has been made at paragraph 4 (v) that as the petitioner had not passed the departmental Hindi Examination but continued to draw a basic pay of Rs. 6600/- in place of Rs. 4100/- hence the recovery of excess salary drawn was necessitated. It is submitted that in the petitioner has drawn an excess amount by way of salary and allowance. It is further stated that on the objection raised by the Finance Department, an order of recovery was passed contained in Madhipura D.O.No. 1006/00 for adjusting the excess salary drawn by the petitioner from his leave encashment amount. Learned counsel appearing on behalf of the petitioner submits that the said recovery has been affected without any notice to the petitioner and without hearing him and which position is indisputed. It is settled position of law that recovery or for that matter any adversarial action can only be taken by the authorities by following the due process of law and which has indisputably not been followed in 3 the present case. In fact the counter affidavit also does not bring on record any such order for effecting recovery from the leave encashment amount of the petitioner. It apparently shows that a departmental order has been issued without following the lawful procedures and without notice to the petitioner and thus cannot be sustained.. Having regard to the accompanying circumstances coupled with the fact that the petitioner has not been attributed any role in the matter, the order contained in Madhipura D.O .No. 1006/00 is set aside and the respondents are directed to release the unutilized leave salary of the petitioner within three months of receipt/production of a copy of this order. The writ petitioner stands disposed of with the direction aforesaid. Bibhash (Jyoti Saran, J. )