IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13074 of 2005 SMT.SUSHILA DEVI wife of Late Mundrika Prasad, Resident of Main Road, Nashariganj, P.O. Nashariganj, P.S.Nashariganj, District-Rohtas. Petitioner. Versus 1.THE STATE OF BIHAR 2.The Civil Surgeon-cum-Chief Medical Officer, Rohtas, Sasaram 3.The Incharge Medical officer, Durgawati Rohtas 4.The Treasury Officer, Kaimoor, Bhabhuia 5.The Civil Surgeon-cum-Chief Medical officer, Kaimoor, Bhabhua 6.The Incharge Medical Officer, Primary Health Centre, Durgawati 7.The Account Officer, Rohtas, Sasaram 8.The Accountant General (A & E), Bihar, Patna. Respondents. ------ For the petitioner : Mr. Pramod Mishra Dr. Leelawati Kumari For the State : Mr. Sanjay Kumar No.1,G.P-14 For the Accountant General,Bihar : Mr. S.Ehtasham ---- O R D E R 5. 15.12.2009. Heard learned counsel for the parties. The petitioner is aggrieved by the order passed by the respondents under which the recovery of Rs.65,120/- had been made vide order bearing memo no.415 dated 15.7.2005 (Annexure-11) in the light of the objection raised by the Accountant General vide letter no.2150 dated 20.11.2003 (Annexure-9). Facts of the case in brief are that the petitioner is the widow of Late Mundrika Prasad who retired on 31.1.2003 from the post of Dresser from 2 the Primary Health Centre, Durgawati, Rohtas, Sasaram and expired on 3.2.2004. The retiral benefits were paid but the respondents recovered an amount of RS.65,120/-, said to be the excess amount paid to her late husband by reason of incorrect pay fixation giving rise to the present proceedings It is contended on behalf of the petitioner that the husband of the petitioner had submitted his pension papers for grant of post retiral benefits and the same was forwarded to the Accountant General for necessary authorisation and vide letter dated 20.11.2003 (Annexure-9) issued under the signature of the Senior Accounts officer in the office of the Accountant General, Bihar addressed to the Incharge Medical Officer, Durgawati, Kaimur, the same was returned in which it has been pointed out that the pay fixation of the husband of the petitioner Late Mundrika Prasad had been incorrectly made in the scale of Rs.535-765/- in place of Rs.400-540 from 1.4.1981 and by reason thereof, the subsequent pay fixation w.e.f. 1.1.1986 and 1.1.1996 are also incorrectly fixed and to which, the said employee was not entitled. In view of objection raised, the Incharge, Medical Officer was required to take necessary 3 action thereon. On the basis of the objection, as contained in Annexure-9, the Incharge Medical Officer had issued a letter dated 23.7.2004 addressed to the District Accounts Officer, Rohtas along with the service book of Mundrika Prasad for taking necessary action at his end. The Treasury Officer, Kaimur, by the impugned order bearing memo no.415 dated 15.7.2005 (Annexure-11) came to a conclusion that the said employee had drawn an excess amount of Rs.65,120/- and which was recoverable from the amount of his post retiral benefits. The concerned employee Mundrika Prasad in the meanwhile, had expired on 3.2.2004 and the impugned order of recovery came there after on 15.7.2005 and almost two years after the objections were raised by the Accountant General. Learned counsel for the petitioner submits that the order is in violation of the principles of natural justice inasmuch as no notice was issued nor any hearing was provided to the late husband of the petitioner before the order was passed. It is further submitted that the said defect cannot be rectified as the husband of the petitioner had expired prior to the issuance of the impugned order. Learned counsel for the petitioner submits 4 that it is not the case of the respondents that the husband of the petitioner had any role to play or had committed any fraud or misrepresentation in deriving the said benefit. He further submits that it is also not the case of the respondents that the fixation was done with the knowledge of the deceased employee that ultimately if the fixation was not found tenable then the excess amount would be recovered from him. He further submits that no order can be passed against a dead person. Learned counsel for the State submits that the entire matter was enquired in the light of the objection raised by the Accountant General placed at Annexure-9 and whereupon they came to a conclusion that the pay of the husband of the petitioner was incorrectly fixed and thus there was no infirmity in the action of the respondents in taking action to recover the excess amount in question. He further with reference to Annexure-F to the counter affidavit filed on behalf of the respondent Treasury Officer, submits that the petitioner having accepted to refund the excess amount, this writ petition itself is not maintainable and is fit to he dismissed. He further submits that any amount which has been incorrectly paid to an employee, the State 5 is well within its jurisdiction to recover the same. Learned counsel appearing on behalf of the Accountant General supports the order issued by the Senior Accounts Officer placed at Annexure-9 and submits that the discrepancy was found while in the process of authorizing the fixation of pension of the husband of the petitioner and the same was rectified under the said order. I have considered the rival contentions of the parties and perused the material on record. It is clear that the order of recovery was passed after the death of the husband of the petitioner and thus the principles of natural justice could not have been followed in any case. The respondents could not place on record any material to show as to whether the husband of the petitioner had any role in the fixation of his salary or had played any fraud or misrepresentation in deriving the same. The pay fixation of an employee is done at the administrative side of the Department and an employee has no role in the same unless he is a part of the said fixation. Admittedly, this is not the case of the respondents. In the result, the writ petition is allowed. The impugned order is set aside and the 6 respondents are directed to refund the amount of Rs.65,120/- payable to the petitioner within a period of three months from the date of receipt/production of a copy of this order. The writ petition stands allowed of with the direction aforesaid. ahk (Jyoti Saran,J.)