IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2212 of 2006 BASUDEO PRASAD son of Late Prasadi Sah, resident of Mohalla-Sudama Nagar, Gaya Road, Par Nawada, P.O. and District-Nawada.--- Petitioner. Versus 1. THE BIHAR STATE ELECTRICITY BOARND through its Chairman, Bailey Road, Patna, 2. The Financial Controller-I, Bihar state Electricity Board, Baily Road, Patna 3. The General Manager-cum-Chief Engineer, Bihar State Electricity Board, Magadh Area Board, Gaya 4. The Superintending Engineer, Electric Supply Division, Bihar State Electricity Board, Nawada 5. The Executive Engineer, Electric Supply Division, Bihar State Electricity Board, Nawada.—Respondents. ------- For the petitioner : Mr. Alok Kumar Sinha,No.1 For the Board : Mr. Vinay Kirti Singh Mr. Bijay Kumar Verma, 6. 18.12.2009. Heard learned counsel appearing for the parties. The petitioner retired from the services of the Board with effect from 31.1.2005 while holding the post of accountant and has filed the writ petition for payment of the post retiral benefits at revised rate together with statutory and penal interest and for setting aside the order of recovery as contained in the order dated 9.2.2005 (Annexure-1) whereby the Financial Controller has directed the Electrical Executive Engineer, Electric Supply Division, Nawadah to deduct an amount of Rs.45,982.60 from the gratuity 2 amount payable to the petitioner by reason of revised pay fixation. A counter affidavit was filed on behalf of the Board on 6.10.2009 and in para-6 thereof, it is mentioned that the revised pay, the gratuity amount of Rs.2,31,316/, and the revised leave encashment amount have been paid to the petitioner and that a final withdrawal of G.P.F. amount of Rs.2,06,071/ has been sanctioned vide order No.41 dated 3.2.2005 with instructions to the Electrical Executive Engineer, to make payment. It is stated that some discrepancies had been found in the pay fixation of the petitioner by the audit department of the Board and thus the pay of the petitioner was refixed and the retiral benefits calculated and it was found that the petitioner had drawn excess salary of Rs.45,982.60, which was sought to be recovered by the order under challenge. The petitioner responded to the said affidavit by filing rejoinder on 30.10.2009 and in which it was stated that the recovery was arbitrary unreasonable and also not permissible in law in the light of the judicial pronouncements on the issue. Learned counsel contended that unless the employee is found to be a part of the pay fixation or has committed any fraud or 3 misrepresentation on the like, he cannot be held responsible for the same. It was contended that pay fixation is carried out on of the administrative side of the department in which the petitioner had no role to play and thus the recovery was unsustainable and in violation of principles of natural justice. It was further stated that the G.P.F. amount had not yet been paid to the petitioner. A supplementary counter affidavit was filed on behalf of the Board on 16.12.2009 and in which it was mentioned that the G.P.F. amount which had been sanctioned as back as in the year 2005, was paid to the petitioner vide Cheque No.233643 dated 3.11.2009, i.e. after a lapse of almost five years of the retirement of the petitioner. It was further stated that leave encashment amount has already been paid to the petitioner vide cheque no.87594 dated 8.6.2006. The matter as stands today, is that the petitioner claims interest on the belated payment of G.P.F from the date the same became due for payment until the date when actual payments were made to the petitioner at the statutory rate and also questions the recovery. In so far as the recovery aspect is 4 concerned, the counter affidavit in para-5 states that after the retirement of the petitioner when the service book was sent to the audit department for final checking, it came to conclusion that the pay fixation of the petitioner was not correct and on its suggestion the pay was revised and found that an amount of Rs.45,982.60 was recoverable and accordingly, by reason of re-fixation, the said amount was adjusted from the retiral benefits payable to the petitioner and which is in accordance with the rules of the Board. The respondents in this regard are absolutely silent on the aspect as to whether the petitioner had any role to play in the said pay fixation or whether he had obtained the same by practicing fraud, misrepresentation or the like, rather the respondents are quite clear in their stand when they state that it was on the basis of the opinion of the audit department of the respondent Board that the re-fixation had been carried out. It is indisputed that no notice or hearing was given to the petitioner by the authorities of the Board before passing the impugned order. Thus the impugned action of recovery besides being inequitable was also undertaken in utter violation of the principles of 5 natural justice and cannot be sustained. The case of the petitioner does not fall amongst the exceptions warranting recovery in terms of the ratio laid down by the Full Bench of this Court in the case of Ram Binod Singh reported in 2007 (3) PLJR 398. Having regard to the facts and circumstances of the case, the impugned order dated 9.2.2005 as contained in Annexure-1 is set aside and the respondents are directed to refund the recovered amount of Rs.45,982/- to the petitioner within a period of three months from the date of receipt/production of a copy of this order. In so far as the claim of the petitioner for interest on the G.P.F. amount is concerned, it goes without saying that the petitioner would be entitled to the statutory interest calculated from the date it became due for payment until the same was paid and which also is to be paid to him within the period stipulated above. The writ petition is allowed with the directions aforesaid. ahk (Jyoti Saran,J.)