IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14500 of 2009 MUNISH CHANDRA JAISWAL S/O LATE RAGHUBIR NARAYAN JAISHWAL VILL- RAGHOPUR, P.S PARBATTA, P.O RAGHOPUR, DISTT- BHAGALPUR Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT GOVERNMENT OF BIHAR, PATNA 3. THE DIRECTOR , SECONDARY EDUCATION GOVERNMENT OF BIHAR, PATNA 4. THE DISTRICT EDUCATION OFFICER, MUNGER, BIHAR 5. THE ACCOUNTANT GENERAL BIHAR, PATNA ----------- 7 26.04.2010 Heard learned counsels for the petitioner, State and the Accountant General. The petitioner is aggrieved by the order vide letter no. 01112 dated 18th July, 2009 as contained in Annexure- 1 whereby a sum of Rs. 2,31,593/- has been recovered out of total sanctioned amount of gratuity to the tune of Rs. 3,02,886/- and the petitioner was paid the balance amount of Rs. 97,269/-. The petitioner retired as an Assistant Teacher from Ram Krishna High School, Haweli, Kharagpur, District- Munger on 30th September, 2006. It is submitted that the aforesaid amount was recovered allegedly on the ground that the petitioner was allowed time bound promotion w.e.f. 01.04.1981 to which he was not entitled. Learned counsel for the petitioner submits that even if the time bound promotion which was given to the petitioner w.e.f. 01.04.1981 is not permissible in law, but none the less the recovery on account of excess payment - 2 - made for the aforesaid promotion is not justified to be recovered from the gratuity payable to the petitioner in absence of any fraud or misrepresentation on the part of the petitioner for the grant of the said time bound promotion, and therefore, no recovery/adjustment could be made from the retiral dues. The petitioner in this regard has relied on the decision of the Apex Court in the case of Syed Abdul Qadir Vs. The State of Bihar, as reported in (2009)3 S.C.C., 475. Learned counsel for the State on the other hand submits that since the time bound promotion w.e.f. 1981 was not admissible to the petitioner and as such the excess payments made to him by way of enhanced salary was adjusted from the gratuity payable to the petitioner. It is further submitted that the recovery was made as per the consent of the petitioner which would be evident from the letters given by the petitioner as contained in Annexure-A to the counter affidavit. In reply to the above the learned counsel for the petitioner submits that admittedly there is no misrepresentation or fraud played by the petitioner in the grant of the time bound promotion w.e.f. 01.04.1981 and petitioner continued to receive salary without any communication till the date of his superannuation and the petitioner was allowed to retire on 30th September, 2006. - 3 - As regards the consent letter, it is submitted that the same can not be acted upon for the simple reason that the gratuity payable was not being settled even after long years of his retirement the payment of the gratuity was settled only in the year 2009 as per Annexure-A to the counter affidavit when the petitioner was made to put his signature over prepared letter with the details of the calculation. It is submitted that on account of the aforesaid recovery the petitioner is suffering a great financial hardship after his superannuation. Considering the submissions of the parties and their respective pleadings, it appears that the averments made by the petitioner to the effect that the petitioner did not play any fraud or misrepresentation on the authorities for the sanction of the promotion which entitle the petitioner to receive the higher emoluments by way of salary. The said averments made in the writ application are not controverted. The only plea taken on behalf of the State in support of the recovery is that the petitioner himself consented for the same. The submission of the petitioner that in absence of fraud or misrepresentation for grant of promotion it would not be justified on the part of the authorities to recover/adjust the alleged excess amount from the retiral dues of the petitioner as has been done in this case has substance. The Apex Court in the decision - 4 - relied on by the petitioner has also not approved the action of the authorities in recovering/adjusting the excess payment made for which the employee can not be held responsible if no fraud or misrepresentation was attributed against the employee. In the above circumstances, the impugned order vide memo no. 01112 dated 18th July, 2009 as contained in Annexure-1 whereby a sum of Rs. 2,31,593/- has been recovered from the gratuity payable to the petitioner can not be sustained in law in the facts and circumstances of the case. It is accordingly quashed. Respondent nos. 3 & 4 are, hereby, directed to ensure refund of the aforesaid deducted amount preferably within a period of three months on receipt/production of the certified copy of the present order. The writ application stands allowed to the extent indicated above. Manish/- ( Shailesh Kumar Sinha,J.)