IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17844 of 2008 Devendra Tiwari, Son of Late Raj Ballabh Tiwari, Resident of Mohalla – D-106, Police Coloney- Anisabad, Patna -2. -------- Petitioner Versus 1. The State Of Bihar. 2. The Director General of Police, Old Secretariat, Bihar, Patna. 3. The Inspector General of Police (I.G.) Special Branch, Old Secretariat, Bihar, Patna. 4. The Superintendent of Police, Special Branch, Old Secretariat, Bihar, Patna. ----------- Respondents ---------------------------------- 2 13.12.2011 Heard Sri Gopal Govind Mishra, learned counsel for the petitioner and Sri Dhurjati Kumar Prasad, learned Government Pleader No. 7, appearing on behalf of Respondent/State. The present writ petition was filed with a prayer to quash ‘Annexure – 1’ i.e. a communication contained in Memo No. 3508 dated 14.08.2008 issued by Superintendent of Police, Special Wing, Government of Bihar, Patna. By the said order the Respondent/Superintendent of Police had directed to deduct an amount of Rs. 32,949/- from the retiral dues, particularly from leave encashment amount of the petitioner. The petitioner had retired on 31.03.2008 as ‘Havildar’ from Special Branch, Bihar, Patna. Even though the petitioner retired he was not paid his full retiral dues, and subsequently, the impugned order was issued and an amount of Rs. 32,949/- has been deducted from the retiral dues of the petitioner. The petitioner in the present writ petition has pleaded that without giving any opportunity or notice the present impugned order 2 was issued and recovery has been done. Learned counsel for the petitioner submits that it is settled principle of law that after retirement of an employee no deduction shall be made unless it is a case of suppression of fact, fraud or misrepresentation. It was submitted that Rs. 32,949/- has been deducted on the plea that the petitioner was paid excess pay in between 01.01.1995 and 01.03.2004. The petitioner had not committed any misrepresentation or fraud or concealed any fact, and as such, the recovery order i.e. ‘Annexure – 1’ is liable to be set aside. Learned counsel for the petitioner has heavily relied on three judges bench judgment of the Apex Court reported in 2009 (2) PLJR SC 74 (Syed Abdul Qadir & Ors. Vs State of Bihar & Ors.). He has specifically referred to paragraph no. 27 of the judgment. For just decision in the matter it would be appropriate to quote paragraph no. 27, which is as follows:- “This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a 3 given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India, (1994)2 SCC 521; Union of India vs. M. Bhaskar, (1996)4 SCC 416; V. Ganga Ram vs. Regional Jt. Director, (1997)6SCC 139, Col. B.J. Akkara (Retd.) vs. Government of India & Ors., (2006)11 SCC 709; Purshottam Lal Das & Ors. vs. State of Bihar, (2006) 11 SCC 492; Punjab National Bank & Ors. vs. Manjeet Singh & Anr., (2006)8 SCC 647; and Bihar State Electricity Board & Anr. vs. Bijay Bahadur & Anr., (2000)10SCC99.” Sri Dhurjati Kumar Prasad, learned counsel for the State on the contrary has argued that the writ petition is hit by principle of estoppel. He has referred to ‘Annexure – D’ to the counter affidavit and submits that the petitioner himself had given consent for deduction of the said amount from his retiral dues. He has further relied on a decision of the Apex Court reported in (2000)9 SCC 187 [Union of India & Ors. Vs Sujatha Vedachalam (Smt.) & Anr.]. It was submitted that the Apex Court has approved that even in case of excess payment same can be recovered from the retiral dues. On the aforesaid ground it has been submitted that the writ petition has got no merit and is required to be dismissed. Besides hearing learned counsel for the parties, I 4 have also perused the materials available on record. So far plea of estoppel taken by learned counsel for the State is concerned, the court is of the opinion that perusal of ‘Annexure – D’ makes it clear that the petitioner had got no option for receiving his all the retiral dues without giving an undertaking for deduction of the said amount. Accordingly, the court is of the opinion that plea of estoppel taken by learned counsel for the State is not applicable in the facts and circumstances of the present case. So far (2000)9 SCC 187 is concerned, the court is of the opinion that learned counsel for the petitioner is right in referring to Syed Abdul Qadir Case (Supra). The decision in Syed Abdul Qadir case was passed recently in 2008 by three judges bench of the Apex Court. The case on which learned counsel for State has relied was decided in the year 2000 by two judges bench of the Apex Court. Accordingly, the court is of the opinion that instead of relying on the decision cited by learned counsel for the State, the court will prefer to rely on a larger bench judgment of the Apex Court, that too, which has been passed in 2008 subsequent to Sujatha Vedachalam Case (Supra). Accordingly, in view of the facts and circumstances as well as the law settled by the Apex Court which has been categorically described in paragraph no. 27 in Syed Abdul Qadir Case, there is no hindrance to allow the writ petition. Accordingly, the writ petition stands allowed and ‘Annexure – 5 1’ to the writ petition is hereby quashed. The Respondents are directed to refund the deducted amount of Rs. 32,949/-. The deducted amount must be refunded to the petitioner within a period of six weeks from the date of receipt/production of a copy of this order, failing which, the petitioner shall be entitled to claim interest at the rate of 09% from the date of deduction till the date of payment. The writ petition stands allowed. Praful ( Rakesh Kumar, J.)