IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8872 of 2005 SURESH NATH SHARMA Versus THE STATE OF BIHAR & ORS ---------- O r d e r 5. 17.3.2010. Heard Mr. Upendra Kumar Choubey, learned counsel appearing on behalf of the petitioner, Mr. R.K. Sinha, learned Assisting counsel to SC-8 for the State and Mr. Vinay Kirti Singh, learned counsel representing the Bihar State Electricity Board. The petitioner was appointed as Bill Clerk with effect from 14.11.1968 and superannuated while holding the said post on 31.1.2003 on a salary of Rs.8710/. Consequent upon his retirement, in course of finalization of his pensionary entitlements, office orders dated 16.9.2003 came to be issued refixing the pay of the petitioner with effect from 1.4.1975 until his superannuation on 31.1.2003. It was also stipulated that the excess amount drawn by the petitioner may be calculated and sent for recovery. Pursuant to the order aforesaid, the amount has been recovered from the gratuity amount 2 admissible to the petitioner under the Gratuity Payment Order (Annexure-3) of the supplementary affidavit dated 24.6.2005 and the Financial Controller while sanctioning the gratuity to the petitioner to the tune of Rs.2,18,543/ has directed for recovery of an amount of Rs.33,261/- and for payment of the balance of Rs.1,85,281.04 to the petitioner. The issue as it stands today is that the pension of the petitioner has been fixed on the basis of salary of Rs.8545/ per month in the light of the pay fixation order dated 16.9.2003 (Annexure-J) and a recovery of an amount of Rs.33,261.00 has been made. Learned counsel for the petitioner submits that there was no infirmity in the pay fixation of the petitioner and that he had rightly superannuated on a salary of Rs.8710/ per month and that his pension should be refixed on the basis of the last salary drawn at Rs.8710/ per month and re-calculated and arrears thereof should be paid together with the recovered gratuity amount of Rs.33,261.60. The other post retiral dues relating to provident fund, gratuity etc, have admittedly been 3 paid to the petitioner. Learned counsel for the petitioner with a particular reference to para-7 of the supplementary counter affidavit filed on behalf of the Board, submits that the only reason assigned for effecting the re-fixation, can be found in para-7(1) of the said affidavit and which states that as the pay of the employees of the Board has been revised with effect from 1.,4.1975 under the 2nd Wage Board recommendations hence the benefit of pay protection granted to the petitioner under the Shiv Chandra Award with effect from 2.1.1976 lost its force in the light of the said recommendations contained in the Board’s Office Order No.4361 dated 3.10.1980) with effect from 1.4.1975. Learned counsel submits that the pay revision in the light of the Officer order dated 3.10.1980 even if made effective from 1.4.1975 could not result in negating a benefit provided to the petitioner under the Shiv Chandra Award. He submits that it is not the case of the authorities that the petitioner was not entitled to the pay protection rather they only rely upon the pay revision effected under the Boards’ Office Order 4 dated 3.10.1980. Mr. Vinay Kirti Singh, learned counsel representing the Board, supports the impugned action of the authorities in the light of the 2nd Wage Board recommendations. He further submits that the benefits under the Shiv Chandra Award lost its force once the pay revision had taken place in the Board with effect from 1.4.1975 under the 2nd Wage Board as contained in the Office Order dated 3.10.1980 and in that background the annual increments granted to the petitioner in 1975-76 was not in accordance with the stipulations. The same having been found incorrect, was rectified under the pay fixation order dated 16.9.2003 placed as Annexure-J which is perfectly in tune with the statutory provisions. I have heard the rival submissions advanced by the respective parties and considered the material on record. The contention advanced on behalf of the petitioner is well founded. The benefit of pay protection granted to the petitioner under the Shiv Chandra Award on 2.1.1976 certainly could not be withdrawn retrospectively in the process of 5 implementation of the revision of scale under the 2nd Wage Board effective from 1.4.1975 and that also without any show cause or hearing to the petitioner. May be the benefits provided under the Shiv Chandra Award became inoperational and merged with the pay revision effected under the order dated 3.10.1980 but it could not result in withdrawing the benefits already extended to the employees under the Shiv Chandra Award as back as on 2.1.1976. In that view of the matter, the stand taken on behalf of the Board for withdrawing the increment drawn by the petitioner in the year 1975-76 is illegal, unjust and unreasonable. The arbitrariness is further escalated by utter violation of the principles of natural justice. The writ petition is allowed and the authorities of the Board are directed to refix the pension of the petitioner on the basis of last salary drawn by him and after calculating the pension and pensionary entitlements of the petitioner, make payment thereof together with the arrears after adjusting the amount already received by the petitioner. The authorities would 6 also remit the amount of Rs.33,261.60 withdrawn from the gratuity admissible to the petitioner. The exercise should be completed expeditiously and preferably within a period of three months from the date of receipt/production of a copy of this order. ahk (Jyoti Saran, J.)