IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16555 of 2004 PREMA GUPTA, wife of Shri Mahendra Gupta, resident of Gola Road, Sahtoli, P.S. Danapur, District – Patna……….. Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary, Department of Labour & Employment, Government of Bihar, New Secretariat, Patna. 3. The Director, Employment and Training, Bihar, New Secretariat, Patna. 4. The Principal, Women I.T.I., Digha Ghat, Patna. …………….. Respondents ----------- For the petitioner: Mr. Sanjay Kumar Ghosarvey. For the State : Mr. Girijesh kumar, JC to AAG-3. ----- 03. 29.01.2009 Petitioner is a retired employee from the Women I.T.I. Digha Ghat, Patna which comes under the Department of Labour & Employment, Government of Bihar. She had entered service way back in the year 1961 and superannuated on 30.6.1998. When her retiral dues were not settled she filed a writ application for a direction upon the respondents to do the needful. By a general direction the writ application was disposed of in light of the order given in Rukmini Devi’s case. The retiral dues came to be settled but leave encashment of the petitioner was held back. A contempt was filed against the respondents but the Court did not feel that a case for contempt was made out. In the meantime, an order No. 246 dated 19.8.2003 contained in annexure-1 came to be passed. This order is under challenge in the present writ application. By virtue of annexure-1 the respondents have made out a case for recovery of Rs.82,902.05. The heads under which these recoveries are to be made are based on audit objection. The first - 2 - head is that the petitioner whose husband was also State Government employee posted at the same station had drawn house rent allowance despite regulation No. 5678 dated 13.6.1980, para 60, prohibiting it. The house rent was drawn both by her husband and the present petitioner for the period April, 1980 till August, 1995. Respondents therefore worked out a figure of Rs.50,616.40 to be recoverable. The other head is a LTC advance which was not accounted for amounting to Rs.800 and when the same amount was neither accounted for nor refunded, a claim of Rs.800/- plus Rs.100/- as interest has been worked out against the petitioner. The third head is recovery of excess pay/salary paid to the petitioner for the period September 1982 till March 1997. The petitioner was granted first time bound promotion which was a conditional promotion subject to approval by the Finance Department and superior authorities. This first time bound promotion which was granted w.e.f. 1.9.1982 by the Director, Employment and Training vide Memo No. 2064 dated 6.8.1992 was withdrawn by the Secretary, Labour and Employment vide letter No. 1752 dated 27.6.1996. In other words, the benefit of first time-bound promotion stood withdrawn. Petitioner does not deny that this order of withdrawal of time-bound promotion was not challenged before any forum. In other words, the order of the Secretary issued on 27.6.1996 withdrawing the promotion order was accepted by the petitioner and she superannuated on 30.6.1998. The question now to be decided is whether the order contained in annexure-1 effecting recovery of the above amounts is permissible or not under the law? - 3 - Learned counsel appearing for the petitioner submits that there is neither any fraud or misrepresentation on the part of the petitioner and if that is so, then no recovery can be made after her superannuation. In this regard he would like to place reliance on a Division Bench decision rendered in the case of Union of India and others v. Central Administrative Tribunal and others, 2007 (4) PLJR 468, as well as a decision rendered in the case of Sheo Ratan Prasad v. Bihar State Electricity Board, 2008 (2) PLJR 467. Submission on behalf of the respondent State is that the benefit of drawal of H.R.A. by the petitioner knowing fully well that her husband was also drawing house rent allowance as a civil servant and was posted at the same station was impermissible. This was a deliberate advantage taken by the petitioner which is in direct conflict with the rules laid down in this regard. It need not be pleaded that fraud was played by the petitioner in taking advantage of an allowance that did not accrue to her. Rules in this regard are very clear and if the petitioner had drawn HRA in breach of the said rule, then misrepresentation of fraud may be presumed. An allowance to which an employee is not entitled to can surely be recovered because it does amount to unjust enrichment on the part of the employee on the face of it. The Court therefore holds that the respondents have done no wrong in claiming refund of the house rent allowance from April, 1980 till August, 1995 i.e. when her husband retired. The second item relates to LTC advance of Rs.800/- which - 4 - has not been accounted for. Respondents have categorically stated that series of letters have been written to the petitioner to reconcile this account but the same was not done and since the audit raised an objection the same is sought to be recovered along with Rs.100/- as interest looking at the period it has remained outstanding. No fault can be found even with this claim. Coming to the final deduction which is the recovery from the salary by virtue of the petitioner being given first time-bound promotion it has been categorically stated by the respondents that the time-bound promotion was a provisional promotion subject to approval. The benefit was conferred on the petitioner on 6.8.1992 but the same was withdrawn on 27.6.1996. Since the petitioner did not challenge the order of the Secretary withdrawing the time-bound promotion and slept over the matter, it only certifies that the petitioner had no grievance against the said order and she had accepted the correctness of the decision in question. If that is so, then again this Court holds that respondents are not wrong in their action of claiming this amount as well. If the petitioner would have been in employment the Court might have considered fixing recovery in instalments specially under the head of salary but as the petitioner has already superannuated then leave salary of the petitioner is the only way left to reconcile the account. Even as per order contained in annexure-1 the total outstanding against the petitioner is Rs.82,902.05 but her earned leave salary has added up to Rs.78416.00 only. In other words, - 5 - there is still a few thousand of rupees which the petitioner has to pay the State under this head. The Court does not find any merit in the writ application and annexure-1 does not require interference. Let the petitioner settle account with the respondents of the balance outstanding amount which emerges from annexure-1. The writ application is dismissed. rkp (Ajay Kumar Tripathi, J)