IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15997 of 2009 Kalishankar Pd.Singh, Son of Late Haribilash Singh, resident of Village- Rahimapur, P.S. Bidupur, District-Vaishali ------------------ Petitioner Versus 1. THE BIHAR STATE ELECTRICITY BOARD, through its Chairman, Vidyut Bhawan, Bailey Road,Patna. 2. The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road,Patna 3. Financial Controller, Bihar State Electricity Board, Vidyut Bhawan ,Bailey Road,Patna 4. Director (Terminal Benefit), Bihar State Electricity Board, Vidyut Bhawan, Bailey road,Patna -------------- Respondents. ----------- 03 21-12-2010 Heard Sri Ashok Kumar, learned counsel for the petitioner and Sri Nikesh Kumar, learned counsel appearing on behalf of the Respondents/ Bihar State Electricity Board. The petitioner, who retired as Accountant from the Office of Electric Supply Devision, Chapra East with effect from 31.5.2008 , has prayed for quashing of order No.39, contained in Memo No.374 dated 4.6.2008, issued by the Executive Engineer, Electricity, Chapra. Annexure-1 to the petition, whereby the petitioner’s pay scale has been re-fixed after his retirement and order for recovery of Rs.1, 48,413.70 and Rs.1935.20 was passed on the plea that excess payment was made to the petitioner. The amount was directed to be recovered from the gratuity amount and the same has already been recovered. Learned counsel for the petitioner submits that it is not a case, in which it can be alleged that by way of suppression of fact or committing fraud the petitioner had got enhanced pay scale and, as such, after retirement of the petitioner, 2 the respondent authorities were not authorized to recover the same. Learned counsel for the petitioner in support of his stand has submitted that time without number, it has been reiterated that in absence of allegation of suppression of fact after retirement the authority cannot recover anything from the post retiral dues. Learned counsel for the petitioner has specifically relied upon a judgment of the Hon’ble Supreme Court reported in 2009 (2) PLJR 74 (SC) (Syed Abdul Qadir & Ors.Vs. State of Bihar & Ors). He has specifically referred to paragraph nos. 25, 27 and 28 of the said Judgment , which are as follows: 25. We now come to the question as to whether the amount that has been paid in excess to the appellants- teachers should be recovered or not. It is the submission of the learned counsel appearing on behalf of the appellants- teachers that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount that has been paid to the appellants cannot and should not be recovered; it having been paid without any misrepresentation or fraud on their part. 27. 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 3 employees from the hardship that will be caused if recovery is ordered. But, if in a 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. 28. Undoubtedly, the excess amount that has been paid to the appellants-teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. Learned counsel appearing on behalf of the Respondent Bihar State Electricity Board has opposed the prayer of the petitioner. In this case, a counter affidavit has been filed on behalf of the Bihar State Electricity Board. However, in its counter affidavit, 4 the Respondent has not at all stated as to whether the petitioner had got his pay fixed on higher scale by way of suppression of fact or making any fraud. Only the stand, which has been taken in its counter affidavit, is that the petitioner had not passed the Hindi Notings and Drafting Examination. In view of the facts and circumstances , as indicated above, particularly, the fact that the petitioner had not suppressed any fact, the Court is of the opinion , particularly in view of law settled by the Apex Court that the order for recovery, as contained in Annexures 1 and 2 of the writ petition, was erroneous . Accordingly, the same are quashed with a direction to the Respondents to take steps for refunding the recovered amount. All formalities are to be completed within a period of six weeks from the date of receipt/production of a copy of this order. With the above observation and direction, the petition stands allowed. NKS/- ( Rakesh Kumar, J.)