IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.247 of 2006 BHUBNESHWAR SHARMA son of Late Bali Sharma, resident of village-Pinjaur, P.O.Pinjaur, P.S.Parasbigha, Distt- Jehanabad. —Petitioner. Versus 1. THE STATE OF BIHAR through the Director General and Inspector General of Police, Govt. of Bihar, Patna 2. The Superintendent of Police, Munger 3. The Treasury Officer, Jehanabad 4. The Accountant General, Bihar, Patna. ----------- 5. 29.1.2010. Heard Mr. Sunil Kumar, learned counsel appearing on behalf of the petitioner, Mr. N.K.Sinha, learned AAG-10 for the State and the learned counsel appearing on behalf of the Accountant General. The petitioner who retired from the post of Sub Inspector of Police with effect from 31.1.2004 had filed the writ petition for payment of his post retiral benefits on the basis of the last salary drawn. A further prayer was made for refund of the amount of Rs.38,893/- which had been withheld by the respondents. An order to this effect was passed as contained in a letter dated 9.7.2004 (Annexure- 3) written by the Superintendent of Police, Munger addressed to the Treasury Officer, Jehanabad wherein it has been stated that by reason of the incorrect pay fixation, the 2 petitioner had drawn an excess amount of Rs.38,893/-and which has to be recovered from his pensionary entitlements. Following the said direction as contained in Annexure-3, the amount of Rs.38,893/- was recovered from the gratuity amount of the petitioner. The petitioner has filed an interlocutory application bearing I.A.No.457 of 2010 seeking permission to incorporate the prayer for quashing the direction contained in letter dated 9.7.2004 (Annexure-3) for recovery of Rs.38,893/-. The interlocutory application is allowed and the prayer made in the said application is permitted to be advanced in the present proceedings. As regards the action taken by the respondents, a counter affidavit has been filed on behalf of respondent no.2 and in which it has been stated that the pay scale of the petitioner had been revised with effect from 1.1.1996 and was fixed in the pay scale of Rs.5500/- to 9000/- at the stage of Rs.7425/- and whereafter the petitioner was granted increment(s) and superannuated at a pay of Rs.8825/-. 3 It is admitted that it is after retirement of the petitioner on 31.1.2004 when his service book was verified by the Accountant General that it was detected that the pay had been incorrectly fixed on 1.1.1996 at Rs.7425/ and that the correct fixation in the revised pay scale should be Rs.7075/-. It is after detection of the said error that the pay scale of the petitioner right after 1.1.1996 until his retirement was refixed and which has also been set out in para-7 of the counter affidavit and according to which the petitioner ought to have retired on a pay of Rs.8475/ in the pay scale of Rs.5500/ to 9000/- in place of Rs.8825/-. It is thus submitted that by reason of such error in pay fixation, the petitioner had drawn an excess amount of Rs.38,893/- and which has since been recovered in the light of Annexure-3. Learned counsel for the petitioner submits that in the entire counter affidavit there is not even a whisper regarding any role of the petitioner in the pay fixation or that he represented for fixation at a particular stage. It is also not the case of the respondents that 4 the petitioner was not entitled to the pay scale in question. He submits that where the scale is not disputed, correctness or incorrectness of fixation of pay on the said scale certainly can not be attributed to the petitioner. He further submits that the position has now been settled by a Full Bench judgment of this court in the case of Ram Binod Singh Vs. The State of Bihar and ors reported in 2007 (3) PLJR 398 and according to which unless it was found that any employee has played any fraud or he was not found entitled to the scale itself, or caused misrepresentation in the fixation of the pay scale or the same had been done with his knowledge and/or stipulation of recovery, no such recovery could be carried out by the employer on the pretext of incorrect pay fixation. Learned counsel thus submits that the direction passed by the Superintendent of Police as contained in Annexure-3 besides being arbitrary is also in violation of principle of natural justice inasmuch as no notice or any opportunity of hearing has been given to the petitioner prior to the issuance of the order of 5 recovery. This position is not disputed by the learned counsel appearing on behalf of the State, who nevertheless, submits that since it was detected that pay of the petitioner was incorrectly fixed in the revised pay scale of Rs.5500-9000/- and as a consequence, the petitioner had drawn excess salary of Rs.38,893/- and hence, there was no infirmity in the order of recovery. Having given anxious consideration to the issue, I am not in any manner of doubt that the petitioner had any role to play in the matter of his pay fixation. It is also not the case of the respondents that the petitioner was not entitled to the scale of Rs.5500-9000/. The only infirmity is being stated regarding the stage of fixation. Whereas the initial fixation was done at the stage of Rs.7425/- in the scale of Rs.5000-9000/- but in the opinion of the Accountant General the correct stage was Rs.7075/- on 1.1.1996. The infirmity, if any, cannot be attributable to the petitioner. Besides, the recovery has been carried out without providing any opportunity to the 6 petitioner to defend himself and thus has been passed in utter violation of the principles of natural justice. As such, the order of recovery from either view cannot be sustained. In addition thereto, it is also rather inequitable to allow any recovery from the petitioner who has admittedly retired much prior to the issuance of the impugned order of recovery. In that view of the matter, the direction for recovery as contained in (Annexure-3) can not be sustained and is set aside and the respondents are directed to remit the amount of Rs.38,893/- 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 to the extent discussed above. ahk (Jyoti Saran,J.)