Judgment:
R.M. Prasad, J.
1. In this writ petition, the petitioner, who retired from the service of the Respondent-Board on 30th April, 1999, is aggrieved on account of non-release of gratuity amount in the revised scale and further on account of recovery of a sum of Rs. 26,147 of the alleged excess amount drawn by him on account of erroneous fixation of pay on his promotion.
2. A counter-affidavit has been filed on behalf of Respondent-Board and its officials. The amount of gratuity totalling to a sum of Rs. 52,732 has already been paid vide cheque No. 370206 dated 28-4-2003. With regard to the recovery from the total amount of gratuity of Rs. 78,878.80, it is stated that the same has been recovered on account of excess pay paid to the petitioner due to wrong fixation of pay. According to the Board, the petitioner was informed about the discrepancy in the pay fixation vide letter No. 2144 dated 4-10-2001, copy whereof has been annexed as Annexure-C, but till date he has neither challenged the same not questioned the validity of the same. Hence, at this stage only when the consequential action has been sought to be taken, the petitioner cannot be allowed to challenge the same belatedly and that too without challenging the grounds for recovering the same. In support of this, learned Counsel for the Board has placed reliance upon order of the Division Bench passed in LPA No. 86 of 2002, contained in Annexure-D, and the order contained in Annexure-E dismissing Special Leave Petition preferred against the said order before the Supreme Court and also the order passed in LPA No. 316 of 2002, contained in Annexure-F.
3. Learned Counsel for the petitioner has submitted that in view of the principle settled by the Apex Court in the case of Sahib Ram v. State of Haryana and Ors., reported in 1995 Supp (1) SCC 18, that after retirement recovery of alleged excess payment is permissible only in case of misrepresentation or commission of fraud by the employee and not otherwise, recovery is not sustainable, and, in fact, this Court may consider to award cost against the authority concerned for passing the order of recovery after retirement of the petitioner especially because the respondent-Board is aware about the above mentioned principle that recovery is permissible only in case of misrepresentation or commission of fraud by the employee and for which issued standing order contained in memo No. 2746 dated 25-7-2000 wherein the Board has cautioned that such recovery must be made while a person is still in service and after the matter comes before the Court and the order of recovery is canceled the same shall be realised from the Head of the office.
4. Earlier learned Counsel for the Board in the case of Jadubir Prasad v. Bihar State Electricity Board and Ors., C.W.J.C. No. 13429 of 2002 disposed of on 17-2-2003, in reply to the said contention placed reliance on the Division Bench order of this Court in LPA No. 86 of 2002 disposed of on 9-7-2002 (Annexure-D) and this Court was unable to appreciate that as to how the order of Division Bench is of any help to the Board, moreso when the law in this regard is well settled by the aforementioned decision of the Apex Court in the case of Sahib Ram v. State of
Haryana (supra), which from the order of the Division Bench appears that the same was not cited before their Lordships. The Apex Court in the case of Sahib Ram v. State of Haryana (supra) in which the benefit of higher pay scale was given to the appellant, but by wrong construction made by the principal for which the appellant could not be held to be at fault, directed that the amount paid till date may not be recovered from the appellant. This direction was on the premise that it was not on account of any misrepresentation by the appellant that such benefit was given to him.
5. This Court further in the case of Mauji Lal Sinha v. Bihar State Electricity Board and Ors., (C.W.J.C. No. 12304 of 2001 disposed of on 20-5-2003 considered the orders of the Division Bench referred to above and another order of Division Bench which held that recovery on account of erroneous grant of increments was not permissible, and the same was upheld by the Apex Court in Appeal in the case of Bijay Bahadur v. Bihar State Electricity Board and Ors., bearing Civil Appeal No. 6913 of 1999, reported in (2000) 10 S.C.C. 99. The Apex Court while dismissing the appeal recorded its concurrence with the direction made in the case of Sahib Ram and came to the 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.
6. From the standing order dated 25-7-2000 referred to above it is quite obvious that the Board on the basis of the decision of the Apex Court in the case of Bijay Bahadur v. Bihar State Electricity Board and Ors., (supra) issued the said standing order cautioning that such recovery must be made while a person is still in service and after the matter came before the Court and the order of recovery is cancelled, the same shall be realised from the Head of the office. It appears that the Board mala fide suppressed the said standing order from the Division Bench which passed the orders contained in Annexures D & K. Even in the present case, the direction of the Board in the standing order dated 25-7-2000 was suppressed and the Respondent-authority proceeded to act contrary to the said standing order by issuing order dated 12-6-2002, contained in Annexure-1 for making recovery of Rs. 26,147 on account of alleged excess pay drawn from the total amount of D.C.R. Gratuity, which, in my opinion, is wholly arbitrary and mala fide. Once the Board itself realising the position in law issued standing order dated 25-7-2000 directing/cautioning that such recovery must be made while a person is still in service and that after the matter comes before the Court and the order of recovery is cancelled, the same shall be realised from the Head of the office, the action of the authority concerned in making recovery much after the retirement of the petitioner cannot be held to be fair and justified, especially when it is not their case that it was on account of representation, misrepresentation or fraud committed by the petitioner that he was paid the alleged excess amount. The attitude of the Board to drag the employee to Court despite law settled by the Apex Court repeatedly, in my opinion, is wholly arbitrary and mala fide and for this this Court finds it to be a fit case for awarding cost to be paid by the Board and the same may be recovered from the authority concerned.
7. Writ application is, thus, allowed with cost of Rs. 2,000. The Respondent-Board is directed to pay the remaining amount of gratuity as well as the amount of cost within one week, failing which the concerned authority shall be liable to pay further 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. However, it is needless to add, that the claim of the petitioner with respect to first relief for payment of difference amount on account of revision of pay shall be governed by the order of the Division Bench in the case of the Bihar State Electricity Board, Patna and Ors. v. Ramjee Prasad Singh, (LPA No. 343 of 2002).