IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1242 of 2005 GAYA PRASAD CHAUBEY, son of Late Bhuneshwar Chaubey, resident of village-Belaur, P.O.-Dahiwar, District- Buxar …….Petitioner Versus 1. THE STATE OF BIHAR. 2. The Director General of Police-cum-Inspector General of Police, Government of Bihar, Patna. 3. The Superintendent of Police, District-Buxar. 4. The Accountant General, Bihar, Patna. ……… Respondents. ……… For the Petitioner : Mr. Kunal Tiwary, Advocate. For the Respondents : Mr. Gyan Prakash Ojha. ----------- O R D E R 03/ 27.11.2009 Heard Mr. Kunal Tiwary, learned counsel appearing for the petitioner and Mr. Gyan Prakash Ojha, learned Assisting counsel to G.A. 7 and Mr. J.P. Karn, learned counsel appearing for the Accountant General. The petitioner is aggrieved by the order dated 3.2.2004 as contained in Annexure-3 , whereby the pay- scale of the petitioner has been reduced to a lower scale under the signature of the Superintendent of Police, Buxar. The petitioner also questions the order dated 13.10.2004 (Annexure-6) under the signature of Superintendent of Police, Buxar rejecting the representation of the petitioner and holding that the petitioner had drawn an excess amount of Rs. 1,17,541/- 2 by way of excess payment by reason of an incorrect pay fixation and out of which an amount of Rs. 96,672/- had been adjusted from the leave salary amount payable to the petitioner and the balance amount of Rs. 20,869/- would be adjusted from his pension arrears. With the consent of the parties, the matter has been taken up for disposal at the stage of admission. The facts briefly stated is that the petitioner was appointed as a Constable in 1965 and after being promoted to the post of Sub Inspector he superannuated from that post on 30.6.2003. Vide District order dated 26.12.2003 (Annexure-1), pay-scale of the petitioner was fixed right from the stage of his intial appointment and it was determined that as on 1.7.2002 he would be drawing a salary of Rs. 8,650/- in the revised pay-scale of Rs. 5,500/- to 9,000/-. The said order is dated 26.12.2003. The said order was passed after the retirement of the petitioner on 18.7.2003 and even his provisional pension and family pension was fixed on the basis of the last salary drawn i.e. Rs. 8,650/-. Copy of the provisional pension fixation order is placed at Annexure-2 of the writ petition. Subsequently another office order bearing no. 162/2003 came to be issued on 3.2.2004 (Annexure-3) and whereby a fresh pay-scale fixation was carried out with effect from his initial appointment and after 3 determination at different stages it was concluded that the petitioner would be entitled to a salary of Rs. 7950/- in the pay-scale of Rs. 5500/- to 9000/- as on 1.7.2002. The petitioner filed his representation on 7.9.2004 (Annexure- 4) followed by another representation of 8.10.2004 (Annexure-5) and which remained pending. Ultimately, vide order bearing no. 1317/2004 dated 13.10.2004 (Annexure-6), the Superintendent of Police, Buxar issued orders in the case of the petitioner and holding that the petitioner had drawn an excess amount of Rs. 1,17,541/- by reason of an incorrect pay fixation and which was liable for recovery. The Superintendent of Police, thus directed that an amount of Rs. 96,672/- be recovered from the unutilized leave salary payable to the petitioner and that the balance amount of Rs. 20,869/- would be recovered from his pensionary dues. It is an admitted position that the pension of the petitioner has been re-fixed on his scale determined vide Annexure-3 and he has also been paid his retiral benefits on the basis of the said fixation of Rs. 7950/-. Learned counsel appearing on behalf of the petitioner submits that the entire retiral dues on the basis of the pay fixation as contained in Annexure-3 on the basis of the salary drawn of Rs. 7,950/- as on 1.7.2002 has been paid to him save and except the recovery of Rs. 1, 4 17,541/- made from his unutilized leave salary and pension amount and which has been illegally adjusted by the respondents. Learned counsel appearing on behalf of the State submits that upon examination it was detected that the pay-scale of the petitioner had been incorrectly fixed and which mistake was rectified and upon rectification it came to the notice that an amount of Rs. 1,17,541/- had been drawn by the petitioner in excess and which had to be recovered from the petitioner and the same has been adjusted from his leave encashment and pension amount and that there is no infirmity in the action of the respondents which has been carried out merely to rectify the mistake which has taken place in the case of pay fixation of the petitioner. A counter affidavit has also been filed on behalf of the State respondents and in which they have justified the actions taken by the respondents authorities and the orders passed pursuant thereto. Needful to mention here that even while justifying the impugned actions, the respondents have been rather fair in their stand in making statement that the petitioner had not been found to be involved in the matter of excess payment of his salary and that is the reason that the recovery has been made without charging any interest. 5 The said submission can be found in parapgraph-14 of the counter affidavit. Heard learned counsel appearing on behalf of the parties and considered the materials on record. It is the admitted case of the respondents that the petitioner was not found involved in the matter of pay- scale fixation or had any role in the excess payment of salary. It is also an admitted position that pay-scale upon being re-fixed, his retiral benefits have been paid in terms of the pay-scale as found to be correct by the respondent authorities. The only issue which requires determination is as to whether in the circumstances that the petitioner was not found involved in the matter of his pay-fixation, any recovery could be made from his salary and that also without any notice or hearing to petitioner. Law is well settled on the issue and in view of the admission of the respondent authorities that the petitioner had no role in the matter of pay-fixation or in the excess withdrawal of his salary, the recovery becomes unreasonable and thus unsustainable as having been carried out in gross violation of the principles of natural justice. Having considered the facts and circumstances set forth and the materials on record coupled with the fact that there was no role on the part of the petitioner in the 6 matter of his pay-fixation or in the matter of his payment of salary pursuant thereto and which fact is determined by the concerned competent authorities of the State, the impugned order as contained in Annexure-6 cannot be sustained and the same is set aside. The respondents are directed to refund the amount of Rs. 1, 17,541/- adjusted from his leave encashment amount and pension amount within a period of six months from the date of receipt/production of a copy of this order. The writ petition stands allowed with the directions aforesaid. S.Sb/- (Jyoti Saran, J.)