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2014 DIGILAW 97 (PAT)

Shiv Kumar Thakur v. State Of Bihar

2014-01-21

HEMANT KUMAR SRIVASTAVA

body2014
C.A.V. ORDER 1. Petitioner has prayed for issuance of a writ in the nature of mandamus directing the respondents to make his following retiral dues along with appropriate interest-(1) The amount of Group Insurance (2) Two A.C.P’s with effect from 8.9.1999 and 6.12.04 (3) Sanctioned dues amount of 16 months salary for the period from 11.8.08 to 16.9.08 and 11.9.08 to 17.12.2009 (4) Arrears of differences of salary since 01.01.2006 in the light of 6th Pay Revision Committee Report. 2. The petitioner was initially appointed on 06.12.1980 on the post of Agricultural Inspector at Japha Block, Muzaffarpur and he was superannuated from service on 31.07.2011 while he was posted at Gopalpur Block, Bhagalpur district as Block Agricultural Officer but after his retirement, nothing was paid to him though he filed a representation before the concerned officials. It is also the case of the petitioner that departmental proceeding was initiated against him and he was suspended for the period of 16 months but later on, all the charges were found false and baseless against the petitioner in departmental proceeding and, accordingly, he was exonerated from the aforesaid departmental proceeding. It is also the case of the petitioner that benefits of two A.C.P.’s have already been sanctioned by the order dated 28.05.2005 but despite the sanction order, the aforesaid benefits of the petitioner with effect from 09.08.1999 to 06.12.2004 have not been paid to him. 3. Counter affidavit has been filed on behalf of the respondents no. 2 to 5 and it is averred at para 7 of the counter affidavit that amount of Rs. 1,44,222/- of group insurance has already been paid to the petitioner vide Bank A/C No. 11347489392 of S.B.I., Khagaria. 4. It has also been averred at para 8 to the counter affidavit that petitioner had been paid excess benefits of A.C.P. since 16.12.1990 to 28.02.2006 and in course of verification of pay fixation, the aforesaid fact came to light and it also came to light that Rs. 81,428/- has been paid excess to the petitioner. 5. It has further been averred at paragraphs no. 81,428/- has been paid excess to the petitioner. 5. It has further been averred at paragraphs no. 9 and 10 of the counter affidavit that payment for arrears of salaries of the petitioner from the period of 17.09.2008 to 17.12.2009 except 11.08.2008 to 16.09.2008 has already been ordered and so far as from the period of 11.08.2008 to 16.09.2008 is concerned, the aforesaid payment has been stopped as between the aforesaid period, the petitioner was in jail custody and the rest amount has already been paid to the petitioner. Similarly, at para 11 to the counter affidavit, it has been averred that the payment of differential amount for the period of 01.04.2007 to July 2008 in conformity with recommendation of 6th pay commission was calculated and it came to the tune of Rs. 1,26,273/- but the excess payment of Rs. 81,428 as well as amount of Rs. 30,925/- which was paid to the petitioner provisionally, were deducted from the aforesaid amount and rest amount of Rs. 13,870/- has already been paid to the petitioner. 6. Learned counsel appearing for the petitioner submits that the petitioner admits the above stated payment but submission on behalf of the petitioner is that Rs. 81,428/- was wrongly deducted from the salary of the petitioner because according to settled principle of law, the excess payment can only be deducted when the above stated excess payment has been made on account of misrepresentation or fraud but in the instant case, it is not the case of the department that the aforesaid excess payment was made on account of misrepresentation or any fraud committed by the petitioner. 7. Learned counsel for the petitioner relied upon a decision reported in 1995 Supp.(1) SCC, 18 Sahib Ram vs. State of Haryana and Others in which it has been held by the Apex Court that excess payment can only be recovered in case of misrepresentation or fraud. Another decision cited on behalf of the petitioner is Aditya Prasad Singh vs. State of Bihar reported in 2012(4) PLJR in which a Bench of this Court having relied upon Syed Abdul Qadir and Others vs. State of Bihar and Others reported in (2009) 3 SCC 475 quashed the order of excess recovery. 8. Another decision cited on behalf of the petitioner is Aditya Prasad Singh vs. State of Bihar reported in 2012(4) PLJR in which a Bench of this Court having relied upon Syed Abdul Qadir and Others vs. State of Bihar and Others reported in (2009) 3 SCC 475 quashed the order of excess recovery. 8. The above stated case of Syed Abdul Qadir (Supra) in which it has been held by the Apex Court that excess amount paid to the appellants of the aforesaid case was not because of any misrepresentation or fraud on their part and the excess payment was the result of wrong interpretation of the rule applicable to them and accordingly, the Apex Court directed the concerned authorities to refund the amount recovered by them. 9. Another decision cited on behalf of the petitioner is Bihar State Electricity Board and Others vs. Jagdeo Singh & Others reported in 2002(3) PLJR 67 in which Division Bench of this Court held that in the case of partial withholding of pension by way of adjustment of excess amount paid in the form of wrongful increment, 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. 10. On the strength of above stated decisions, learned counsel for the petitioner submitted that respondents had no right to deduct the above stated amount of Rs. 81,428/- from the arrear salary of the petitioner. 11. On the other hand, learned counsel appearing for the respondents no. 2 to 5 submits that deduction of excess payment is not limited only to the misrepresentation or fraud and if it is found by the officials that excess payment has been made to an employee under some misconception and mis-confusion, the aforesaid excess amount can be deducted from the retiral dues of the employee. Learned counsel for the respondents relied upon a decision reported in AIR 2012 SC 2951 (Chandi Prasad Uniyal and Ors. vs. State of Uttarakhand and Ors.) in which the Apex Court held that any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right and in such situations, law implies an obligation on the payee to repay the money, otherwise it would amount to unjust, enrichment. vs. State of Uttarakhand and Ors.) in which the Apex Court held that any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right and in such situations, law implies an obligation on the payee to repay the money, otherwise it would amount to unjust, enrichment. It has also been held that recovery of excess paid public money cannot be limited only to cases of fraud or misrepresentation and concept of fraud or misrepresentation is not applicable to such situation. It has further been held in the above decision that excess payment made to teachers/principals due to wrong pay fixation is liable to be recovered and, moreso when there was clear stipulation in the fixation order that in case of wrong/irregular fixation the institution in which the employee works would be responsible for recovery of over payment made. 12. Learned counsel for the respondents submits that in the present case, admittedly, excess payment was made to the petitioner due to fixation of his wrong pay and, therefore, in the light of above stated decisions, the department has full right to deduct the excess amount from the arrears of salary of the petitioner. 13. Annexure-B to the counter affidavit reveals that Sub Divisional Agricultural Officer, Naugachia reported to Block Development Officer, Gopalpur that District Account Officer, Begusarai informed about the excess payment made to the petitioner at the time of his pay fixation in the year 1992 and accordingly, excess payment of Rs. 81,428/- has been made to the petitioner between 06.12.1990 to 28.02.2006. Admittedly, the aforesaid pay fixation was made in the year 1997 without any misrepresentation or fraud played by the petitioner rather it was fault of the concerned department to fix excess pay of the petitioner and furthermore, petitioner was drawing the aforesaid pay since long till the date of his retirement. No doubt, the Apex Court held in the decision of Chandi Prasad Uniyal and Ors. (Supra) that the recovery of excess payment is not limited to the cases of fraud or misrepresentation only but in the aforesaid judgment, the Apex Court has, nowhere stated that in each and every case the recovery of excess payment should be made rather the Apex Court observed that in few exception of extreme hardships, the recovery of excess payment cannot be made. In the present case. In the present case. admittedly, the payment was made to the petitioner and he was drawing the aforesaid payment since long without any interruption and there is nothing on the record to show that the petitioner had knowledge that the payment received to him was in excess of what was due or wrongly paid to him. Furthermore, it is admitted position that the aforesaid excess payment was deducted after long gap of time that is, too, after his retirement. So, in my view, the department has got no authority to deduct the excess payment of Rs. 81,428/- from the arrear salary of the petitioner. 14. Accordingly, this writ petition is allowed with direction to the respondents to make payment of the aforesaid recovered amount of Rs. 81,428/- to the petitioner within three months from the date of receipt/production of a copy of this order. 15. In the aforesaid manner, this writ petition stands disposed of.