Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 597 (PAT)

Mauji Lal Sinha v. Bihar State Electricity Boards

2003-05-25

RADHA MOHAN PRASAD

body2003
ORDER In this writ petition, the petitioner is aggrieved by recovery of the alleged excess amount drawn by him, vide Annexure-1, on account of erroneous fixation of pay on his promotion. 2. Petitioner retired from the service of the Bihar State Electricity Board hereinafter referred to as 'the Board' on 31.1.998 as Accountant and was sanctioned full pension vide Pension Payment order No. 872 dated 25.5.1999 (Annexure-2). On 25.5.1999 vide order no. 873 (Annexure-1). A sum of Rs. 52,186.44 has been recovered from the amount of gratuity payable to the petitioner on account of excess pay drawn due to wrong fixation of pay, which according to the petitioner is against the law settled by this Court as well as Apex Court in catena of decisions. 3. In the court affidavit filed on behalf of Respondent nos. 1 to 3 the stand taken by the Respondent - Board is that petitioner was given annual increment with effect from 27.5.1981 and on promotion on the post of Accountant vide Board's office order no. 1045 dated 22.2.1990 with effect from 28.8.1981 the benefit of annual increment was again taken by the petitioner with effect from 28.8.1981. Subsequently after getting super selection grade from 1.8.1988 benefit of annual increment was taken in unrevised scale with effect from 28.8.1988 in place of 1.8.1989. It has been further stated in the counter affidavit that in view of the aforesaid discrepancies pointed out by the audit finally it was calculated that a sum of Rs. 52. 186.44 stands recoverable on account of excess pay drawn by the petitioner by availing wrong pay protection and wrong fixation of pay. 4. Learned counsel for the petitioner has submitted that recovery of the amount pursuant to Annexure-1 is not permissible as it is not a case of the Board that the said fixation was done on misrepresentation or fraud committed by the petitioner. Learned counsel for the petitioner in support of the said contention besides relying upon the decision of the Apex Court in the case of Sahib Ram Vs. State of Haryana, reported In 1995 Supp (1) SCC 18, and in the case of V. Gangaram Vs. Regional Joint Director, reported in 1997 Supreme Court 2776, has also relied upon the Division Bench decision of this Court in the case of Bihar State Electricity Board & ors. Vs. Jagdeo Singh & ors. reported in 2002 (3) PLJR 67 . State of Haryana, reported In 1995 Supp (1) SCC 18, and in the case of V. Gangaram Vs. Regional Joint Director, reported in 1997 Supreme Court 2776, has also relied upon the Division Bench decision of this Court in the case of Bihar State Electricity Board & ors. Vs. Jagdeo Singh & ors. reported in 2002 (3) PLJR 67 . 5. Learned counsel for the Board, on the other hand, has submitted that such recovery has been upheld by the Division Bench in the case of Bihar State Electricity Board & anr. Vs. Ram Girl Singh & ors. (L.P.A. No. 86/2002) disposed of on 9.7.2002, the validity of which was challenged on Petition for Special Leave of Appeal (Civil) No.1 7929 of 2002 and the special leave petition was dismissed by the Apex Court. He further submitted that the Division Bench in the Case of Bihar State Electricity Board & anr. V. Umesh Prasad & ors. (L.P.A. No. 316 of 2002) disposed of on 10.3.2002 taking into consideration the decision of the Apex Court in the case of Sahib Ram Vs. State of Haryana (supra) held that the Board was justified in making the recovery of the excess amount paid to the petitioner. 6. It appears that the facts of the case of Bihar State Electricity Board & anr. v. Umesh Prasad & ors. (supra) was completely different than of the present case. In the case before the Division Bench the petitioner complained that his fixation of pay was not at par with his junior and, thereafter pay protection was given to him. Later on it was found that he was not entitled to the same and his salary was re-fixed and reduced and in view of the finality of the said order the excess amount received by him was to be returned. In the present case, petitioner was sanctioned full pension vide Annexure-2 and vide Annexure - 1 recovery has been sought to be made on account of excess pay drawn due to wrong fixation of pay. It is not the case of the Board that earlier to that any order was passed by the Board re-fixing his salary by reducing it, which may have attained its finality. It is not the case of the Board that earlier to that any order was passed by the Board re-fixing his salary by reducing it, which may have attained its finality. Under such circumstances, the Board is not justified in making recovery from the amount of gratuity on account of excess payment due to wrong fixation of pay as it is not the case of the Board that the said fixation was done on misrepresentation of fraud committed by the petitioner. 7. In one of the case, namely, C.W.J.C. No. 10360 of 2000 (Md. Siddique Vs. The Bihar State Electricity Board & ors.) disposed of on 29.4.2003 it was brought to the notice of this Court that in case of Bihar State Electricity Board & ors. v. Ram Gati Singh & ors. (supra) on filing of the review application, the Apex Court has issued notice to the Board and the matter is still pending consideration by the Apex Court. Moreover, the order passed by the Deivision Bench in L.P.A. No. 86 of 2002 is of later date i.e. 9.7.2002 whereas the order of the Division Bench relied upon by the learned counsel for the petitioner is of prior date i.e. 13.5.2002. The later Division Bench has not taken notice of the order passed by the earlier Division Bench in the case of B.S.E.B. V. Jagdeo Singh (supra) in which while upholding the order of the learned single Judge it has been held that "High Court should not come to the rescue of the Board to make deductions and let the official who was a ready party in the irregularities walk off without being questioned". According to settled law on precedence, if later notice of the earlier decision of the Division Bench then the principle decided by the earlier Division Bench is binding. Further, this Court finds that under similar circumstances recovery sought to be made by the Respondent - Board on account of erroneous grant of increments without passing Hindi Noting and Drafting Examination was held not permisible by a Division Bench of this Court and the Apex Court dismissed the appeal against the Division Bench judgment in the case of Bijay Bahadur v. Bihar State Electricity Board & ors. bearing Civil Appeal No. 6913 of 1999 reported in (2000) 10 S.C.C. 99 . bearing Civil Appeal No. 6913 of 1999 reported in (2000) 10 S.C.C. 99 . While dismissing the appeal the Apex Court recorded its concurrence with the observation made in the Sahib Ram's case and came to a conclusion that since payments have been made without any representation or a misrepresentation, appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The Apex Court further directed that the act or acts on the part of the appellant Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice and further that concept of fairness has been given a go-by and, as such, the action initiated for recovery was held to be not sustainable under any circumstances. It appears that the order passed by the Apex Court in the case of Bihar Electricity Board v. Bijay Bahadur (supra) has not been brought to the notice of the later Division Bench. 8. Thus, in my opinion, under the above circumstances, recovery of the alleged excess payment vide Annexure-1 is not sustainable and it is accordingly quashed. 9. The writ application is, thus, allowed. The Respondent - Board is directed to pay the remaining amount of gratuity accordingly within one week, failing which the Financial Controller (Respondent no.2) shall be liable pay a cost of Rs. 1,000/- from his pocket and the petitioner will be at liberty to file two pages affidavit for revival and for taking appropriate action.