IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1637 of 1997 1. Swapna Banerjee (widow) 2. Sudip Kumar Banerjee (son) 3. Bidyut Banerjee (son) 4. Sanjay Banerjee (son) 5. Prabir Banerjee (son) 6. Subir Banerjee (son) No. 1 is wife and no. 2 to 6 are sons of late Ajay Kumar Banerjee, all residents of Station Chowk, Madhepura, P. S. Madepura, District- Madhepura. … Petitioners. Versus 1. THE STATE OF BIHAR 2. The Secretary, Irrigation, Water Resources Development and Flood Control Department, Government of Bihar, Patna. 3. The Engineer-in-Chief, Irrigation Department, government of Bihar, Patna. 4. The Chief Engineer, Irrigation Department, Birpur, P S. Birpur, District- Supaul. 5. The Superintending Engineer, Saharsa Canal Circle, Kosi Project, Saharsa. 6. The Executive Engineer, Irrigation Division, I Madhepura at Raghopur, P. S. Raghopur, District- Supaul. …. Respondents. ----------- 5. 12.05.2011 Having heard learned counsel for the petitioners and learned counsel for the State, this Court is of the considered opinion that the larger question raised in this writ application as with regard to correctness of the impugned dated 2.9.1987 (Annexure-4) need not be gone into in this case inasmuch as it is an admitted position that the original writ petitioner, late Ajay Kumar Banerji had been paid his salary and emoluments by the respondents for discharge of his duties as a head clerk and therefore if there was no misrepresentation or fraud 2 on the part of Late Banerji, he could not have been subjected to recovery of Rs.23195 as has been sought to be made in view of Annexure- C to the counter affidavit. The alleged excess payment made to the petitioner, late Ajay Kumar Banerji on account of the earlier pay fixation even if in presence of the order dated 2.9.1998 could not have been recovered after his retirement specially when the Respondents have failed to point out any deliberate misrepresentation made by Late Mr. Banerjee in his lifetime in getting such payment. In that view of the matter, this Court would quash Annexure-C to the counter affidavit seeking to recover Rs.23,195/- being the amount of alleged excess payment to late. Ajay Kumar Banerji. It is also made clear that if such amount has already been recovered, the same must be refunded to the widow of late Ajay Kumar Benerji, namely, the substituted petitioner no. 1 within a period of three months from the date of receipt/production of a copy of this order. Learned counsel for the petitioner would also point out that payment of Group Insurance amount of Rs.15,125/- and the amount of GPF with interest had been withheld and therefore a direction should also be 3 given for payment of aforementioned amount. Respondents in paragraph 6 of the counter affidavit have addressed to this aspect and it has been stated that amount of GPF has already been paid to the petitioner. It thus become clear that there is no denial to the non-payment of amount of Group Insurance and therefore if the amount of group insurance of the petitioner was sought to be withheld for making the recovery of Rs.23,195/-, the amount of Group Insurance may be refunded back to the wife of original writ petitioner, namely, substituted petitioner no. 1 within the aforementioned period. It is, however, made clear that death cum retirement benefit which has also been otherwise already paid to the Late Mr. Banerjee, the original petitioner or to substituted petitioners will not be reopened by either party on the ground that petitioner’s excess amount of salary has been directed to be repaid to him inasmuch as this Court has not gone into this issue. With the aforementioned observation and direction, this writ petition is disposed of. kanchan/ ( Mihir Kumar Jha, J.)