IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5808 of 2002 Tetar Dusadh, Son of Late Nanhak Dusadh, at present residing at village-Chandosh, P.S.-Sigori, District-Patna …………. Petitioner Versus 1. The State of Bihar 2. Director Primary Education. 3. District Superintendent of Education, Jehanabad. 4. Senior Accounts Officer, Bihar, Patna 5. Accountant General, Bihar, Patna. ……. Respondents -------------- 04/ 09.11.2009 Heard Mr. Dronacharya, learned counsel appearing on behalf of the petitioner and Mr. Prabhat Kumar, Assisting counsel to G.A. 3 and Mr. J.P. Karn, learned senior counsel appearing on behalf of the Accountant General. The petitioner retired as Headmaster from Middle School, Belawan, in the district of Jehanabad with effect from 12.7.2000 as stated by him. During his service tenure he was granted promotional benefits and had drawn his salary on the basis thereof. Subsequent to his retirement when his pension papers were forward to the Accountant General for necessary authorization, it was detected that his pay had been incorrectly fixed. Upon such revelation coming to light, the Senior Accounts Officer in the office of the Accountant General, Bihar Patna, vide letter dated 19.10.2000 (Annexure-1) issued directions to the respondent, District Superintendent of Education, Jehanabad to make adjustments of the excess payment 2 drawn by the petitioner during his service tenure from the retiral benefits payable to him and thereafter sent the papers for necessary authorization. In the light of the objection raised by the Accountant General in the letter dated 19.10.2000 (Annexure-1) the respondents acted upon the same and made a deduction of Rs. 74, 106/- from the gratuity amount of the petitioner. It is indisputed that the entire retiral benefits have been paid to the petitioner on the basis of the corrected pay fixation in the light of the directives of the Accountant General as contained in the letter dated 19.10.2000 (Annexure-1). The only dispute is with regard to the recovery of the amount of Rs. 74,106/- from the gratuity amount payable to the petitioner. Learned counsel appearing on behalf of the petitioner submits that the said recovery has been effected after his retirement and that also without any notice and/or without affording any opportunity of hearing to the petitioner and thus the recovery was in violation of the basic principles of natural justice. He further submits that no role can be attributed to the petitioner in regard to the fixation of his pay- scale which was purely at the administrative level. He submits that the respondents have nowhere in the counter affidavit stated the said fixation was by reason of any fraud or misrepresentation or representation exercised by the 3 petitioner or that the petitioner had colluded in the said pay fixation. In the aforesaid circumstances, it was submitted that a pay fixation erroneously done at the hands of the respondents cannot act prejudicial to the interest of the petitioner especially after his retirement. Learned counsel relies upon a judgment of the Supreme Court reported in 2009(2) P.L.J.R. (SC) 74 with particular reference to paragraphs 27 to 30 and submits that the said case was also relatable to the teachers whose salary was said to be incorrectly fixed. He submits that the Supreme Court has specifically held that it would be only in a proven case where it is found that the excess payment had been received by the concerned employee within his knowledge and was detected immediately that any recovery could be affected. He further submits that a fixation at the hands of the administrative department, cannot be attributable to the petitioner and even if the same is corrected subsequently at the stage of fixation of his retiral benefits, there cannot be any recovery of the amount paid to him by way of salary on pretext of excess payment by reason of incorrect pay fixation. He submits that the Supreme Court in the said case had also ordered for refund in cases where recovery has been made. Learned counsel appearing on behalf of the State submits that they have acted upon the directions issued by 4 the Accountant General and have made the deductions from the gratuity amount of the petitioner as it was found that the pay of the petitioner had been incorrectly fixed. Learned counsel appearing on behalf of the Accountant General supports the directives as contained in the letter dated 19.10.2000 (Annexure-1) to the writ application and submits that it is only after receipt of the pension papers received after the retirement of the petitioner that it was detected that he had been granted the benefits by reason of incorrect pay fixation to which he was not actually entitled and the correct fixation had been made and communicated to the District Superintendent of Education by the said letter. He thus submits that the recovery required no interference. I have heard the rival contentions of the appearing counsels and considered the materials on record. The position stands well settled that unless it is found that the employee concerned had any role in the matter of fixation of his pay or it is found that the same was given to him by reason of undue favour or by mala fide exercise of power, the same cannot be recovered from the retiral benefits of an employee simply on grounds that the incorrectness in the pay fixation of the petitioner was subsequently detected. It is in disputed that the pay fixation of the petitioner had been done at the level of the 5 department and the petitioner had no role in the same. Apart from the aforesaid position, it is also undisputed that the deductions had been unilaterally made without any notice or affording any opportunity of hearing the petitioner. Thus the action of the respondents was clearly in violation of the principles of natural justice. No doubt, in appropriate cases, the recovery by reason of an incorrect pay fixation would not be interfered in exercise of power under Article 226 of the Constitution of India, but the present case does not fall within the exceptions as listed above. In the result, the writ petition is allowed and the recovery of Rs. 74,106/- made by the respondents from the gratuity amount of the petitioner is held illegal and as a consequence thereof, the respondents are directed to refund the amount of gratuity of Rs. 74,106/- 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. S.Sb/- (Jyoti Saran, J.)