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2006 DIGILAW 647 (PAT)

Ramadhar Sharma v. State of Bihar

2006-07-27

body2006
ORDER Heard the parties. 2. This matter relates to issuance of writ in the nature of Mandamus, commanding/directing the respondent authorities to pay the retired dies, i.e., pension, Gratuity, amount of General Provident fund and also amount of Rs. 15488/- which has been deducted from the amount of unutilised leave salary with interest at the rate of 18% per annum alongwith cost of litigation and further for issuance of writ in the nature of certiorary quashing the office order no. 118 dated 31.7.2004 issued by the Executive Engineer, Public Health Engineering Division, Jehanabad, whereby the Executive Engineer, P.H.E.D. deducted the amount of Rs. 15488/- from the amount of unutilised leave salary arising out from wrong fixation of pay and ordered to pay Rs. 65,480/-instead of Rs. 80,968/- with respect to the amount of unutilised salary with further direction upon the respondent to supply a detailed chart/calculation chart of the amount of G.P.F. in which monthly deduction, interest alongwith statutory interest till the date of payment has been mentioned. 3. It has been stated that A.G. Bihar Patna issued P.P.O. No. 405499 dated 20.9.2004 for payment of amount of gratuity pension and commutted pension to the petitioner but as yet the respondents have not paid the amount as aforesaid. 4. The A.G. Bihar has also informed the Executive Engineer, P.H.E.D. Jehanabad vide letter dated 14.5.2004 that when pay of the petitioner was fixed on 1.1.1996 on account of pay revision, the fixation of pay sums apparently wrong, hence service book of the petitioner be sent after correcting the fixation pay for issuance of authority letter for payment of pension gratuity. 5. The Executive Engineer, P.H.E.D. Jehanabad has paid the provisional Gratuity, amount of Group Insurance and amount of unutilised leave salary to the petitioner, but he has deducted Rs. 15488/- from the amount of unutilised leave salary and paid only Rs. 65,480/- instead of Rs. 80968/- to the petitioner. 6. It has been submitted that Rs. 15,488/- was deducted without assigning any rhyme and reason, and also without any order of A.G. Bihar as well as without following the procedure of law which is apparently illegal. It has also been submitted that the petitioner filed an application for final withdrawal of G.P.F. alongwith pension paper, and although amount of G.P.F. was promised to pay, but the same has not been paid. It has also been submitted that the petitioner filed an application for final withdrawal of G.P.F. alongwith pension paper, and although amount of G.P.F. was promised to pay, but the same has not been paid. The Treasury officer, Jehanabad has not paid pension, Gratuity and commutted pension of the petitioner for which the A.G. Bihar had already issued authority slip. The A.G. Bihar vide letter dated-14.5.2004 had informed the Executive Engineer to verify the correctness of fixation of pay of the petitioner arising out of revision of pay from 1.1.1996, but the Executive Engineer, P.H.E.D. Jehanabad illegally deducted the amount of Rs. 15488 from the amount of unutilised leave salary of the petitioner. It has also been submitted that it is against settled principle of law that on the basis of letter dated 14.5.2004 issued by the A.G. Bihar, the Executive Engineer, P.H.E.D. has made a case of excess payment of salary and recovered Rs. 15488/- from the unutilised leave salary of the petitioner, although petitioner had made several efforts, but nothing was done. 7. A counter affidavit has been filed on behalf of respondent no.1 stating therein, that the writ petitioner retired on 31.7.2004. Since there was an error in fixation of pay, the Accountant General returned his pension papers in original with the service book and his pay was re-fixed in the scale of Rs. 4000-6000/-. After due consideration the District Accounts Officer revised pension papers along with service book was sent to the Accountant General for issuance of authority regarding pension/gratuity. The excess payment as indicated by the A.G., Bihar, Patna on account of wrong pay fixation amounting to Rs. 15,488/- was deducted from the bill of unutilised earned leave and the same had been recorded in his service book. after receipt of P.P.O. by the A.G. Bihar, the Treasury Officer was informed by respondent No.5 for the payment of the aforesaid allowance with intimation of provisional payments made on these accounts. 8. It has been contended that excess payment has deducted from his leave encashment and as such the payment of deducted amount does not arise. As regards the payment on account of G.P.F. accumulations, after clearing all objections, District Provident Officer Jehanabad issued an authority, slip for Rs. 3,70,416/- end on receipt of the said authority bill, the same was sent to the District Treasury Officer, Jehanabad who received the authority letter on 29.3.2005. As regards the payment on account of G.P.F. accumulations, after clearing all objections, District Provident Officer Jehanabad issued an authority, slip for Rs. 3,70,416/- end on receipt of the said authority bill, the same was sent to the District Treasury Officer, Jehanabad who received the authority letter on 29.3.2005. The said Treasury Officer, Jehanabad was informed to pay on account of authority issued by the Account General, Bihar. The petitioner received excess payment on account of wrong pay fixation and it was in accordance with established rules to adjust the over payment as pointed out by the Accountant General, Bihar, Patna. 9. It has been submitted that the petitioner had personally requested the Division-Officer not to deduct the over payment from his salary, rather he had conceded for adjustment of the over payment from his leave encashment bill. It is also submitted that the very entitlement has been paid to him except G.P.F. accumulation. The bill for which is pending for payment with District Treasury Officer, Jehanabad. The deduction of Rs. 15,488/- is on account of excess payment of pay and allowances due to wrong pay fixation and as such, the question of repayment of the same does not arise and as such he- had never represented regarding it. 10. On behalf of the petitioner various decisions of the Apex Court and this Court have been cited to buttress his claim giving emphasis on the principle of law that since the payments have been made without any representation or misrepresentation of this petitioner, the deduction or recovery of salary was not in consonance with equity, good conscience, justice and fairness and hence cannot be sustained. In support of his contention the writ petitioner placed reliance on the decision of the Apex Court in the case of Bihar State Electricity Board and Another Vs. Bijay Bahadur and Another, reported in (2000)10 Supreme Court Cases 99. In this case, in which deductions have been made from the respondents by the Bihar State Electricity Board, the Apex Court" found that since payments have been made without any representation or misrepresentation, the 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. In the aforesaid case the respondent joined the service of the Board in the year 1966 and was paid normal salary with increment. In the aforesaid case the respondent joined the service of the Board in the year 1966 and was paid normal salary with increment. By virtue of a resolution regarding the requirement of passing the Hindi Notings and Drafting examination, when the Board began to implement the resolution retrospectively and to deduct the increments already granted from salaries of the employee on or since 1994, the Apex Court held that in view of the fact that the payments have been made without representation or misrepresentation by the respondents, the act or acts of the Board cannot in any circumstances be said to be in consonance with equity good conscience and justice. 11. A division bench of this Court in a case reported in 2003(3) PLJR 51 relied on the decision of the Apex Court in the case of Bihar State Electricity Board and Anr. Vs. Bijay Bahadur and Another (Supra) held in the similar case, in respect of deduction sought to be made over paid amount from the pensionary benefit, held that as there was no representation or fraud or the part of the employee, the said amount cannot be withdrawn or deducted subsequently from his pensionary benefit. 12. On behalf of the writ petitioner reliance has also been placed on the decision of a single Judge of this Court as reported in 2004(4) PLJR 173 in a similar case in which the recovery was sought to be made on account of excess payment drawn due to wrong fixation of pay from the gratuity amount payable after retirement. It was said that it was not a case where fixation was done on representation, misrepresentation or fraud committed by the petitioner and as such recovery is not permissible. A Single Judge of this Court relied on the decision of the Apex Court in the case of Sahib Ram Vs. State, of Haryana and others; reported in 1995 Supp(1) Supreme Court Cases 18 and in the case of Bihar State Electricity Board and Another Vs. Bijay Bahadur and Another (Supra). In the aforesaid case Single Judge of this Court distinguished the case of the writ petitioner in that case to the case of the Bihar State Electricity Board & Anr. Vs. Mann and Anr. Bijay Bahadur and Another (Supra). In the aforesaid case Single Judge of this Court distinguished the case of the writ petitioner in that case to the case of the Bihar State Electricity Board & Anr. Vs. Mann and Anr. as reported in 2004(3) PLJR 173 , which arises from two separate orders passed in separate writ petition filed by a employees of the Board, the Division Bench has not held that the recovery can be made even without notice and without applying with the rule of natural justice. In that case since the Board has not given opportunity of hearing to the writ petitioner/respondent before coming to the conclusion that the aforesaid amount is recoverable. It was held that the Board should determine as to whether the aforesaid amount is recoverable or not after giving an opportunity of hearing to the writ petitioner/respondent and thereafter take steps for recovery. 13. On behalf of the respondent reliance has been placed 'on the decision of Division Bench of this Court as reported in 2004(3) PLJR 3 (Bihar State Electricity Board and Others Vs. Man Bahadur & Others) in which the Division Bench of this Court held as follows:- "The Apex Court taking into consideration the facts and circumstances of the case has in some cases allowed the recovery of the amount due, to wrong fixation of pay, increments and in some cases disallowed the same on the ground of there being no fraud or misrepresentation. It has not been laid down as an abstract proposition of law if their being no fraud or misrepresentation, no recovery can be made in case of excess payment made to the employees on account of wrbing fixation of pay, increments or similar other grounds." The Division Bench of this Court distinguished Sahib Ram Vs. State of Haryana & Ors. reported in 1995 Supp(1) Supreme Court Cases 18 and the case of V. Bangaram Vs. State of Haryana & Ors. reported in 1995 Supp(1) Supreme Court Cases 18 and the case of V. Bangaram Vs. Regional Joint Director & Ors; reported in AIR 1997 Supreme Court 2776, observing that "in Sahib Ram’s case (Supra) as stated above, as the higher authority wrongly constructed the provision and granted the scale, the Apex Court did not permit the recovery and in that case in the case of the appellant it was further found that the aforesaid case which was under consideration by the Division Bench is covered by the law laid down by the Apex Court in the case of V. Gangaram (Supra). As stated above, the case of Union of India and others Vs. Sujatha Vedachalam (Smt.) and another, reported in (2000)9 Supreme Court Cases 187 and the case of State of Punjab and others Vs. Devindar Singh and others, reported in (1998)9 SCC 595 came to the similar conclusion for the simple reasons that the pay was wrongly paid due to miscalculation by the office and when the said mistake was detected pay was re-fixed and it was even communicated to the writ petitioners-respondents as mentioned in the counter affidavit and they did not challenge the same and only when steps were taken to recover the amount, they made grievance before this Court. 14. In this case also due to miscalculation by the office there was wrong fixation of pay and since there was an error in the pay fixation, the Accountant General returned the pension paper of the writ petitioner in original and the scale was re-fixed in the pay scale of 4000-6000 and, accordingly, revised pension paper along with the service book was sent to the Accountant General for issuance of authority slip regarding pension/gratuity. So far as refixation of pay-scale is concerned, in view of the fact that a mistake was detected, pay was refixed and it was communicated to the writ petitioner. Action of the respondents in fixing pension and gratuity in accordance of re-fixation of pay cannot be said to be in breach of equity, good conscience and fair justice. However, it has been. admitted by the respondents that the petitioner personally requested the Division Officer not to deduct the over payment from his salary, but the fact remains that violating the principle of natural justice recovery of amount was made from unutilised leave salary from the writ petitioner. However, it has been. admitted by the respondents that the petitioner personally requested the Division Officer not to deduct the over payment from his salary, but the fact remains that violating the principle of natural justice recovery of amount was made from unutilised leave salary from the writ petitioner. As referred to above, the Single Judge of this Court in the case of Surajnath Mishra as reported in 2004(4) PLJR 173 while relying upon the decision of the Division Bench of this Court in the case of Bihar State Electricity Board and Anothers Vs. Maujil Lal Singh in L.P.A. No. 935 of 2003, (disposed of on 23.4.2004) held that since the Board has not given any opportunity of hearing the writ petitioner, the Board should first decide as to whether the aforesaid amount is recoverable or not after giving opportunity of hearing to the petitioner and thereafter to take steps for recovery. In this case without giving opportunity to the writ petitioner the Department came to the conclusion for deduction of recovery of Rs. 15,488/-. 15. The writ petition is, accordingly, allowed to the extent that the order of recovery of Rs. 15,488/- is quashed and the matter of said deduction of the amount is remitted back to respondent no. 5 for complying the principle of natural justice after giving an opportunity of hearing to the writ petitioner and decide the matter in accordance with law within a period of 30 days from the date of this order. 16. The respondents are directed to make payment of all the dues, pension, gratuity, the amount of the commuted pension which are admitted dues in accordance with his refixed salary, if the amount has not been paid as yet. The General Provident Fund accumulation, as admitted in paragraph-15 of the counter-affidavit, if not already paid shall also be paid to the writ petitioner by the respondents particularly respondent No.7 without any further delay within a period of 30 days. 17. All the aforesaid payments shall be made to the petitioner, if not already paid, with interest @ 5% p.a. over unpaid dues from last one year within a period of 30 days from the date of this order positively failing which the respondents shall be further liable to pay interest @ 10% p.a. 18. In the result, the writ application is allowed in the manner as stated above. 19. In the result, the writ application is allowed in the manner as stated above. 19. There shall be no order as to costs in the circumstances of the case.