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2004 DIGILAW 461 (PAT)

Bihar State Electricity Board v. Md. Siddique

2004-04-23

NAGENDRA RAI, S.N.HUSSAIN

body2004
Judgment 1. This appeal is barred by limitation. 2. After hearing learned counsel for the parties and taking into consideration the averments made in the limitation petition, we are satisfied that sufficient ground has been made out to condone the delay in filing this appeal. Accordingly, the delay in filing this appeal is condoned. 3. This appeal is directed against the order dated 29.4.2003, Reported in 2003(3) PLJR 681 , passed by the learned single Judge whereby while upholding the order of the Board regarding fixation of pension on the basis of revised pay, the learned single Judge has set aside the order of the Board with regard to recovery of the excess amount which has been paid to the writ petitioner-Respondent due to wrong fixation of pay at the promotional stage. 4. Admittedly, the writ petitioner respondent was an employee of the Board and he superannuated on 30th April, 2000. During promotional stage his pay was wrongly fixed relying upon Standing Order No. 125 dated 7.5.1983. Later on, the Board, found that Standing Order No. 125 was not in existence at the relevant time and the case of the writ petitioner-respondent would be governed by Standing Order No. 515 dated 7.5.1976 which provides interalia that where promotional avenues are available, double benefit in fixation of pay shall not be allowed. Thereafter, the Board took steps to modify the mistake and accordingly pay of the writ petitioner-respondent was fixed according to the relevant Standing Order and that was communicated to the writ petitioner-respondent while he was in service on 28.12.1999 (vide Annexure-6 to the writ petition). 5. Admittedly, that order has not been challenged by the writ petitioner-respondent. His grievance is only with regard to fixation of pension on the basis of revised pay as per Annexure-6 and recovery of excess amount paid to him due to wrong fixation. As stated above, the learned single Judge held that so far fixation of pension, as contained in Annexure-A/2 to the counter affidavit is concerned, there is no infirmity in the order. However, he quashed the order for recovery of the amount because there was no fraud or misrepresentation on the part of the writ petitioner-respondent. Learned single Judge has come to the aforesaid conclusion relying upon the judgment passed by the Apex Court in the case of Sahib Ram vs. State of Haryana, reported in 1995 Suppl. (1) S.C.C. 18. 6. However, he quashed the order for recovery of the amount because there was no fraud or misrepresentation on the part of the writ petitioner-respondent. Learned single Judge has come to the aforesaid conclusion relying upon the judgment passed by the Apex Court in the case of Sahib Ram vs. State of Haryana, reported in 1995 Suppl. (1) S.C.C. 18. 6. The question as to whether any amount received by the employee as excess payment on account of wrong fixation of pay or non-passing of examination or no other grounds can be recovered or not has been considered by the Apex Court in a catena of cases and divergent views have been taken. The Apex Court in Sahib Rams case (supra) has held that the recovery of excess amount paid to the employee cannot be recovered unless there is a fraud or misrepresentation on the part of the employee. The Apex Court in other three cases i.e. in the case of V. Gangaram vs. Regional Joint Director &0rs., reported in AIR 1997 S.C. 2776 , State of Punjab & Ors. vs. Devinder Singh & Ors., reported in (1998)9 S.C.C. 595 and Union of lndia & Ors. vs. Sujatha Vedachalam (Smt.) & Anr., reported in (2000)9 S.C.C. 187 have held that the recovery can be made if the amount has been wrongly paid due to wrong fixation of pay etc. In all the cases judgment has been rendered by a Bench consisting of two Hon ble Judges of the Supreme Court. 7. This Court having considered the decisions in the aforesaid cases, has held in the case of the appellant Board in L.P.A. Nos. 935 and 955 of 2003 disposed of on 16.4.2004, [reported in 2004(3) PLJR 3 ] that the Apex Court taking into consideration the facts and circumstances of the cases have passed aforesaid order taking different view and it has not been laid down, as law that if there is no fraud or misrep-resentation on the part of the employee no recovery will be made from the employee, if excess payment has been made on account of wrong fixation of pay or other similar grounds. 8. In the present case, admittedly pay was revised and reduced according to the relevant provisions while the writ petitioner-respondent was in service and the order was communicated to him vide Annexure-6 to the writ application but he has not, challenged the said order. 8. In the present case, admittedly pay was revised and reduced according to the relevant provisions while the writ petitioner-respondent was in service and the order was communicated to him vide Annexure-6 to the writ application but he has not, challenged the said order. In the view of that matter, once the order fixing pay has not been challenged, recovery cannot be held to be impermissible even if there was no fraud or misrepresentation on the part of the writ petitioner-respondent. In our view, justice, equity and good conscience does not permit an ex- employee to retain the amount which he is not entitled as a good public servant. It is his duty to return the money which he is not entitled to retain. Accordingly, the impugned order passed by the learned single Judge quashing the order for recovery of the excess amount paid to the writ petitioner-respondent is set aside. 9. In the result, this appeal is allowed.