IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 4278 of 2007 Bachu Lal Sah, son of late Deoki Sah, resident of village Dhangai Tola, Post office and Police Station- Bikramganj District- Rohtas Versus 1. The Bihar State Electricity Board through its Secretary, Vidyut Bhawan, Bailey Road, Patna. 2. The Chairman, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 3. The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 4. The financial Controler-1 Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 5. The Deputy Director Account (Secretariat), Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. ********** 4 22.03.2010 Heard Mr. Anand Kumar Ojha, learned counsel for the petitioner and Mr. Dharmeshwar Mishra learned counsel appearing for the Electricity Board. With the consent of the parties this matter has been taken up for disposal at the stage of admission itself. The petitioner is aggrieved by the order bearing memo No. 577 dated 19.7.2006 as contained in Annexure-2 to the writ petition in so far as it seeks to recover an amount of Rs. 1,05,045.50 from the gratuity admissible to the petitioner on the pretext of excess drawal by reason of incorrect pay fixation. The petitioner was appointed on 5.2.1967 in 2 the respondent Board on the post of Accounts Clerk and was granted junior selection grade with effect from 5.2.1977 vide office order No. 53 dated 14.2.1978. The petitioner was granted promotion to the post of Account Assistant with effect from 1.12.1980 vide office order No.802 date 1.12.1980. He was granted selection grade Account Assistant with effect from 1.12.1990 under the orders of the General Manger cum Chief Engineer/CAB, Patna office order no. 1189 contained in memo No. 63 dated 30.9.1993. The petitioner was made super selection grade Account Assistant with effect from 1.12.1998 under office order no. 1043 dated 20.12.2001 . The petitioner was promoted to the post of Accountant with from 9.9.2004 under office order no. 2770 bearing memo no. 1946 dated 9.9.2004. The petitioner superannuated while holding the said post with effect form 31.1.2006. The petitioner was sanctioned pension vide pension payment order 18.4.2006 (Annexure-1) at the rate of 7287/- per month. The gratuity was sanctioned after a delay of six months vide memo no. 577 dated 19.7.2006 but with a rider of recovery of Rs. 1,05, 045.50 (Annexure-2) on grounds of excess pay drawn by the petitioner by 3 reason of incorrect pay fixation. The petitioner is aggrieved by this part of the order sanctioning gratuity as contained in Annexure-2. A counter affidavit has been filed on behalf of the respondent Board and its authorities and in which it is stated that when the pension papers and service records of the petitioner, after his retirement on 31.1.2006, were sent for verification and sanction, it came to be noticed that the petitioner's pay fixation with effect from 1.4.1971 was wrongly made and thus rectification of the error was advised. It is then stated that under the instruction of General Manager cum Chief Engineer Magadh Electric Supply Area, the Electrical Executive Engineer, Electric Supply Division, Sasaram vide office order no. 70 bearing memo no. 90 dated 30.1.2006 revised and corrected the pay fixation of the petitioner as per the opinion of the Audit Department. It is stated that following the refixation, a calculation was made and a sum of Rs. 1,20, 410.50 as found to be the excess amount drawn by the petitioner and out of which a sum of Rs. 15,369/- was already recovered and the difference of Rs. 1,05,045.50 has since been recovered under the gratuity payment order as contained in 4 Annexure-2. It is next stated that the remaining admissible retiral dues of the petitioner including balance gratuity, group savings scheme amount together with interest thereon and other admissible benefits has since been paid to the petitioner and which fact is not in dispute. The only issue which stands today is the recovery of the amount of Rs.1,05,045.50 made from the gratuity amount admissible to the petitioner. Learned counsel for the petitioner submits that the counter affidavit is absolutely silent as to the role of the petitioner in the matter of pay fixation and /or in the alleged infirmity in the fixation of the pay scale except that the pay fixation of the petitioner was not correctly made with effect from 1.4.1971. He further submits that the petitioner is also not charged with any fraud or misrepresentaton in the matter. He submits that in fact the correctness or otherwise of the fixation looses its relevance in the circumstances that the petitioner was granted no less than five promotional grades and which have not been interfered with, namely :- i. Selection Grade Junior Accounts Clerk with effect from 5.2.1977 ii. Account Assistant with effect from 5 1.12.1980. iii. Selection Grade Account Assistant with effect from 1.12.1990. iv. Super Selection Grade Account Assistant with effect from 1.12.1998 v. Accountant with effect from 9.9.2004. He thus submits that the petitioner having been granted the aforesaid promotion(s), the exercise undertaken by the authorities on an illegal advice of the audit leading to refixation of his pay scale with effect from 1.4.1971 is per se illegal arbitrary and an abuse of executive powers. He submits that numerous like cases have drawn the attention of this Court and in all such cases the orders of recovery have been set aside. Learned counsel refers to the following decisions in support of his contentions: (i) 2009(2) PLJR 74 (SC) (Syed Abul Qadir versus State of Bihar) (ii) 2009 (2) PLJR 16 (DB) (Mundrika Devi Versus Bihar State Electricity Board) (iii) 2009(2)PLJR 729 (Shabbir Alam versus Bihar State Electricity Board (iv)2010 (1) PLJR 347 (Satya Narayan Lal versus Bihar State Electricity Board) (v) 2007 (3) PLJR 398 (F.B) (Ram Binod Singh Versus Bihar State Electricity Board). 6 He thus submits that the recovery effected under Annexure-2 is unsustainable in law and fit to be set aside. Mr. Dharmeshwar Mishra, learned counsel representing the respondent Board supports the impugned action and submits that the recovery is fully justified. He submits that the error in the pay fixation was noticed prior to the retirement of the petitioner and pursuant whereto a sum of Rs. 15,369/- was already recovered from the petitioner and which has not been objected by him. He submits that the recovery in question is only an implementation of the rectification of the error in the pay fixation of the petitioner. He with reference to a document annexed in the counter affidavit, submits that the petitioner had admitted for recovery in case of any incorrectness found in the pay fixation. He thus submits that the incorrectness having been found in the pay fixation of the petitioner and partial recovery already having been effected prior to retirement coupled with the fact that the petitioner undertook to refund the amount, if found excess, there was no infirmity in the action of the Board in effecting recovery. He with reference to the full Bench judgment of 7 this Court rendered in the case of Ram Binod Singh (Supra) submits that the petitioner having not been found entitled to the scale, the recovery of excess amount was fully justified. Learned counsel in support of his contention referred to the following decisions of this Court. 1. 2001 (2) PLJR 58 (Bihar State Electricity Board Versus Madan Mohan Prasad). 2. 2004 (3) PLJR 3 (Bihar State Electricity Board versus Man Bahadur). 3. 2007 (3) PLJR 398 (FB) (Ram Binod Sivingh versus Bihar State Electricity Board). I have heard learned counsel for the parties and perused the materials on record. Undoubtedly, the respondents authorities of the Board, in the light of the opinion of the Audit Department have proceeded to unsettle an issue which stood settle more than 25 years of the retirement of the petitioner and even after the petitioner had obtained no less than five promotional grades. Apart from the above, it is also not the 8 case of the Board that the scale had been obtained by reason of any fraud or any misrepresentation by the petitioner. On the contrary, except that the exercise was undertaken in the light of the opinion of the Audit Department no other reasons or infirmities have been brought on record of the proceedings. The issue of whether or not the petitioner was entitled to the 12% extra emolument at the time of his promotion to the post of Accounts Assistant with effect from 1.12.1980 was also a matter in issue in the case of Stya Narayan Lal (Supra) and although learned counsel for the petitioner contended that the reason for refixation and recovery are the same and similar to the reasons which were subject matter of the case of Satya Naryan Lal and Mundrika Devi (supra) but the affidavit of the Board and the documents appended thereto, in the least referred to any reason for effecting the recovery except audit objection. The cyclo styled undertaking of the petitioner enclosed in the counter affidavit cannot be used as sledge hammer against the petitioner nor can act as a licence for recovery. From the pleadings available on records of the proceedings I find no hesitation to hold that 9 the case of the petitioner does not fall within the exceptions warranting recovery as explained in paragraph 26 of the Full Bench judgment (supra). The refixation having taken place after a lapse of more than 25 years, in the accompanying circumstances and in the back drop of the promotion(s) earned by the petitioner, cannot be permitted and is set aside and as consequence thereof the recovery effected under Annexure-2 is also set aside. In the result, the writ petition is allowed with consequential reliefs. The petitioner would be entitled to the refund of the amount of Rs. 1,05,045.50 within a period of three months from the date of receipt/production of a copy of this order. Bibhash (Jyoti Saran, J.)