Narendra Nath Tiwari, J.
1. The appellants-State of Jharkhand and others have preferred this appeal against the order dated 23.8.06 passed in W.P(S) No. 2814/06. By the said order, the learned Single Judge has quashed the order dated 2.9.97 passed by the Accountant General (A&E;) II, Bihar, Patna as well as the letter dated 3.1.05 issued by the Block Development Officer, Chandan Keyari, Bokaro whereby a sum of Rs. 2,24,166.10 was sought to be recovered, as service dues, from the petitioner-1st respondent after more than a decade of his retirement.
2. While hearing the said appeal, the Division Bench was informed that some matter with the similar issue is pending before the Full Bench, by order dated 12.3.07, this L.P.A was also directed to be placed before the Full Bench along with L.P.A No. 146/06. That is how this appear has been placed before this Bench.
3. The 1st respondent-Padamalochan Kalindi was the writ petitioner. He retired from the Government Service in August 1989, as Jan Sewak, Chandan Keyari Block, Dist. Bokaro.
4. During his service period, as Jansewak in the same Block, he was given annual increments by the department vide Memo No. 37 dated 7.4.70, Memo No. 2270 dated 18.11.72 and Memo No. 315 dated 2.3.89.
5. the writ petitioner-1st respondent retired, on attaining the age of superannuation without any thing adverse against him during his service period.
6. After his retirement, the petitioner was paid some of his retiral benefits. He was also paid provisional pension for sometime.
7. From June 1997 his provisional pension was suddenly stopped in the name of realizing and adjusting the amount of Rs. 2,24,166.10 outstanding against the writ petitioner.
8. A letter was issued by the Accountant General (A&E;), Bihar, Patna being Memo No. 16-324 dated 2.9.97 whereby it was informed that during his service period the petitioner was wrongly given increments, though he had not passed the Departmental Hindi Noting and Drafting Examination which was required for allowing annual increments.
9. The Block Development Officer, Chandankeyari on the basis of the said letter of Accountant General ((AE) and claiming outstanding dues not cleared by the writ petitioner during his service period, issued Memo No. 11 dated 3.1.05 showing total outstanding dues of Rs. 2,24,166.10 against the writ petitioner Rs. 1,20,939.80 claimed to be given to the writ petitioner-1st respondent for various schemes during his service period and Rs. 1,03,226.20 was shown to be wrongly paid to him on account of the annual increments, claimed to be not payable before passing the Departmental Hindi Noting and Drafting Examination. It was further mentioned that Rs. 1,65,293.00, the accumulated amount of the provisional pension from 1.6.97 to 31.3.04 was not sufficient for adjustment and still a sum of Rs. 58,873.10 was recoverable from him. The 1st respondent was directed to pay the said balance amount so that papers for fixation of his final pension and gratuity can be forwarded to the Office of the Accountant General.
10. In the writ petition the 1st respondent challenged the said letter of the Accountant General (A&E;) as well as the letter of the Block Development Officer, Chandankeyari and also prayed for a direction to release his final pension and arrears of pension.
11. According to the 1st respondent, nothing was due against him when he retired in the year 1989. The increments and other service benefits were paid by the respondents themselves without any mis-representation on the part of the petitioner and that the amounts paid to him as advance had been spent on the Schemes for which the amounts were given. He contended that the State and its authorities cannot unilaterally and arbitrarily calculate and determine the liability against the petitioner and that too after a long time of his retirement.
12. It was submitted that no amount can be deducted from pension without initiating any proceeding under Rule 43(b) of the Bihar Pension Rules and as such withholding of the provisional pension and not finalizing and paying the petitioner's pension and gratuity is wholly arbitrary, illegal and unjust. The State-authorities have no right to recover the amount or to withhold the pension in the name of recovery/adjustment of the service dues against him without following the prescribed legal procedure and he is entitled to get all his arrears including the arrears of provisional pension, final pension and gratuity.
13. The appellants-State contested the writ petition and supported the letter of the Accountant General (A&E;) II, Bihar, Patna as well as the order of the Block Development Officer, Chandankeyari, mainly on the ground that the petitioner had not passed the Departmental Hindi Noting and Drafting Examination and he was wrongly given increments and the amounts so wrongly paid was liable to be recovered from the respondent No-1. The amounts given for various Schemes to the petitioner during his service period are also outstanding against him and the same are also recoverable.
14. Learned Single Judge after hearing the parties and considering the provisions of law, found that the amount said to be due against the writ petitioner was sought to be recovered from him after about 16 years of his retirement and after about 35 years of release of the increments without initiating any proceeding under Rule 43(b) of the Bihar Pension Rules, 1950. He held that no amount can be recovered from the pension except in accordance with the procedure prescribed under Rule 43(b) of the Bihar Pension Rules. Such recovery cannot be made in respect of any act, omission, or commission which was of more than four years prior to the initiation of proceeding under Rule 43(b) of the Bihar Pension Rules. Neither the State Government nor the competent authority initiated any proceeding while the petitioner was in service. Any proceeding under Rule 43(b) cannot be initiated after 17 years of retirement of an employee as the same is barred by limitation. The State Authorities cannot recover any amount from pension or gratuity of the writ petitioner in the arbitrary manner.
15. Learned Single Judge set aside the impugned order of the Accountant General (A&E;) II, Bihar, Patna as well as that of the Block Development Officer, Chandankeyari and directed them to refund the amount to the writ petitioner, recovered from him, within one month from the date of receipt/production of a copy of this order, failing which the writ petitioner was held to be entitled to get interest @ 5% per annum from the date of his retirement as also Rs. 20,000, as cost.
16. The State-respondents aggrieved by the order of learned Single Judge has preferred this appeal and have assailed the impugned order on the following grounds:
(i) The petitioner had not passed the Hindi Noting and Drafting Examination, and was wrongly given increments, against the Government circular:
(ii) Recovery was made as per the direction of the Accountant General.
(iii) The petitioner was given advance for execution of different schemes, but after completion of the schemes, he did not account for the same.
(iv) The writ petitioner-respondent No. 1 himself had conceded for recovery of the amount by letter dated 14.6.04 addressed to the Block Development Officer, Chandankeyari and as such he cannot claim that the amounts were not due and recoverable from him.
(v) Learned Single Judge has passed an erroneous order without appreciating the said factual and legal aspects.
17. Mrs. I. Sen Choudhary, learned S.C-III appearing on behalf of the State of Jharkhand, submitted that the amounts of increments were wrongly paid to the respondent No. 1 during his service period. Increments were not payable as he had not passed the Departmental Hindi Noting and Drafting Examination. An amount, which has been wrongly paid, can be recovered at any time from the employee. Learned Counsel relied on a decision of a Division Bench of this Court in the State of Jharkhand and Ors. v. (Smt.) Girish Kumari Prasad and Ors. reported in . Learned Counsel further submitted that even the writ petitioner-respondent No. 1 had agreed to pay the said amount and same amount has already been adjusted. He cannot Subsequently turn around and claim refund of the said amount. The advance given against several schemes were not got adjusted and finalized by the writ petitioner while he was in service and the said amounts are outstanding and recoverable from him. Learned Single Judge has thus erroneously quashed the orders issued by the respondents for recovery of the said amounts and wrongly allowed the wit petition.
18. Mr. D.K. Dubey, learned Counsel appearing on behalf of the 1st respondent (writ petitioner) submitted that the writ petitioner-respondent No. 1 retired form his service in the year 1989 from the post of Janasewak, Chandankeyari Block, Bokaro. Even after about 15-16 years of his retirement, the petitioner's pension has not been finally fixed and paid. He was given only provisional pension. After more than 15 years, the respondents have illegally sought to recover the said huge amount from his pension and gratuity, which is not permissible. Recovery of any amount from the pension or gratuity is prohibited except in accordance with the procedure prescribed under Rule 43(b) of the Bihar/Jharkhand Pension Rules. The said provision even bars a proceeding against any act, omission or commission which was of more than four years prior to the initiation of proceeding. In the instant case, neither the State Government nor the competent authority has initiated any proceeding under the Rule 43(b) within the prescribed time. Even the recovery by any other legal process is now time barred after a lapse of more than 15 years. Learned Counsel further submitted that withholding of pensionary amount without following the prescribed procedure is wholly illegal, arbitrary and without jurisdiction. The amount paid to the petitioner towards increments and the alleged advance were not paid on any misrepresentation of the petitioner and the amounts paid as increments were not legally recoverable.
19. Learned Counsel submitted that the decisions of the Division Bench of this Court in (Smt.) Girish Kumari Prasad and Ors. supra, relied upon by the respondents has not relevance to the fact of this case.
20. Learned Counsel referred to and relied upon the following decisions of the Supreme Court as well as of this Court in support of his contentions and submissions : Sahib Ram v. State of Haryana and Ors. 1995 (Suppl. (1) SCC 18, Baleshwar Singh v. State of Jharkhand and Ors. 2005 (3) JLJR 518, Ram Prasann Singh v. State of Jharkhand and Ors. 2005 (4) JCR 48 (Jhr), State of Jharkhand and Ors. v. Baleshwar Singh and Anr. 2006 (4) JLJR 259, Nandipati Das v. BSEB and Ors. 2006 (4) JLJR 265, Md. Usman v. State of Jharkhand and Ors. , Nand Kishore Pandey v. JSEB and Ors. 2006 (4) JLJR 558 and BSEB and Anr. v. Bijay Bahadur and Anr. : (2000)10SCC99 .
21. Mrs. I, Sen Choudhary, learned Counsel appearing on behalf of the appellants, at this juncture, submitted that there is direct conflict between the decision of the Division Bench of this Court in State of Jharkhand v. (Smt.) Girish Kumari Prasad and the Division Bench judgment of this Court in the State of Jharkhand and Ors. v. Baleshwar Singh and Anr. 2006 (4) JLJR 259. The Division Bench of this Court while dealing with the case of Smt. Girish Kumari Prasad, supra, held that there cannot be any estoppel against seeking recovery in case of an unauthorized payment made to an undeserving person and any error in giving the time bound promotion to an employee would not clothe him with any such right. In the case of Baleshwar Singh, supra, another Division Bench held that the said recovery cannot be made after retirement out of the pensionary benefit except by invoking Rule 43 of the Bihar Pension Rules and as such the said conflict is required to be settled by this Bench.
22. We have carefully heard learned Counsel for the parties and scrutinized and considered the facts, materials on record as well as the various decisions referred to by the parties.
23. As noticed above, by the impugned letter issued by the Accountant General as well as the Block Development Officer, a huge amount of Rs. 2,24,166.10 has been sought to be recovered from the writ petitioner-1st respondent from his pensionary dues, after about 15-16 years of his retirement. Even no notice or opportunity of hearing was given to the writ petitioner-respondent No. 1 before calculating the due, arriving at the said decision and determining the liability against the petitioner.
24. Rule 43 of Bihar/Jharkhand Pension Rules envisages the right of the employer for withholding or withdrawing a pension or any part of it, whether permanently or for a specific period, and also regarding the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government. Rule 43 is reproduced herein below:
43 (a) Future good conduct is an implied condition of every grant of pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive.
(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement:
Provided that-
(a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment;
(i) shall not be instituted save with the sanction of the State Government;
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and
(iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may he made;
(b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with Sub-clause (ii) of clause (a); and
(c) the Bihar Public Service Commission, shall be consulted before final orders are passed.
Explanation- For the purposes of the Rule-
(a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to have been instituted:
(i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal court; and
(ii) In the case of civil proceedings, on the date on which the Complaint is presented, or as the case may be, an application is made to a civil Court.
25. It is clear from the plain reading of Rule 43(b) that no amount can be recovered from the pension except in accordance with the procedure prescribed therein i.e. except in case the pensioner is found in departmental or judicial proceeding to have guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service. In proviso to the said Rule, it has been made clear that such departmental proceeding, if not instituted while the Government servant was on duty (i) shall not be instituted except with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings. It has been further provided that such proceeding can be conducted by the authority in accordance with the procedure applicable to proceedings in which an order of dismissal from service may be made. Similarly, in cases of judicial proceedings, there is a clear bar for instituting the same, if not instituted while the Government servant was on duty for an event which took place not more than four years before the institution of such proceedings and except the sanction of the State Government is obtained.
26. In Baleshwar Singh's case 2005 (3) JLJR 518, supra, while allowing the writ petition filed by the petitioner-Baleshwar Singh the order whereby recovery, sought to be made on the ground of wrong fixation of pay during the service period from the amount of gratuity, was quashed by a Single Judge of this Court. In the said decision the Division Bench decision in Smt. Girish Kumari Prasad, supra, was also considered and held to be not applicable to the facts of that case while reliance was placed on the decision of the Supreme Court in Sahib Ram's case. The said decision was challenged in L.P.A by the State of Jharkhand. The Division Bench upheld the decision of the Single Judge and held that the recovery of excess payment from the pensionary benefits cannot be made without invoking Rule 43 of the said Pension Rules. The instant case is almost covered by the Division Bench decision in Baleshwar Singh vide State of Jharkhand and Ors. v. Baleshwar Singh and Ors. 2006 (4) JLJR 259. In Paragraph 13 of the said decision, this Court further held that the State can recover the amount by filing a suit before a Civil Court or may file certificate case subject to the law of limitation. But it is not open to the State to recover any amount from pension or gratuity in the name of adjustment and that too without giving any opportunity to the retired employee as any recovery or adjustment from the pension or gratuity can be made only in terms of Rule 43(b) or Rule 139 of the Pension Rules. Though the provisions of Rule 139 of the said Rules have no application to the facts of the instant case, Rule 43(B) squarely applies and creates a bar including the bar of limitation in the instant case. In this context, it is useful to quote paragraphs 13, 14, 15, 16, 17 & 18 of the said Division Bench decision which are being reproduced hereunder:
13. The Stats can recover the amount by filing a suit before a Civil Court of competent jurisdiction or in appropriate case, may file certificate case but in both cases, law of limitation being applicable, it is not open to the State to recover any amount at any time from pension or gratuity in the name of adjustment, that too without giving opportunity to the retired employee. Before recovery or adjustment of any amount from the pension or gratuity in the case of mistaken calculation or payment in excess, the retired employee should be given an opportunity of hearing to state as to why the amount be not recovered/adjusted from his pension/gratuity and it will be open to the retired employee to show that such recovery or adjustment is uncalled for or is barred by limitation. However, such procedure will not be applicable in cases where any recovery or adjustment is made from pension or gratuity in terms with Rule 43(b) or Rule 139 of the Bihar Pension Rules, 1950, where a specific procedure has already been prescribed.
14. It will be evident that the competent authority, which is empowered to sanction pension, can reduce pension under Rule 139 for the grounds, as prescribed under the Rule. If a departmental proceeding is not initiated by the competent authority while the government employee was in service, after retirement it is only the State Government, which is empowered to initiate such proceeding under Rule 43(b) of the Bihar Pension Rules, 1950, subject to limitation of four years from the date of occurrence/first cause of action. If the power is vested with the State Government to make recovery under Rule 43(b) and such proceeding is subject to prescribed period of limitation, then how such recovery or adjustment can be made by any other authority, if not authorized by the State.
15. For example, if a person by mis-representation or duping the State Government draws excess amount of salary or other benefit, such action being misconduct, after retirement it can be recovered only under Rule 43(b) of the Bihar Pension Rules, 1950. If charge is not framed while the employee is in service, after retirement it is only the State Government, empowered to do so and not any other officer and there is a limitation of four years, prescribed under the Rule. On the other hand, if an employee, who is honest, is paid excess amount, not because of misrepresentation but because of mistake on the part of the other person, after retirement how such amount can be recovered or adjusted by any authority, not empowered to do so, except by the order of the State and can the period of limitation be ignored in such cases?
16. In these type of cases when excess payment is made to a Government employee by mistake and such mistake is committed by some other person, one can not ignore Rule 43(b) in such cases. It is not that only in the case of misconduct Rule 43(b) can be invoked but it can also be invoked against an employee, if there is a pecuniary loss, caused to the Government due to negligence of the employee. That means the employee due to whose negligence such amount was paid to another employee and such negligence caused pecuniary loss to the State Government, then why the State Government will not recover the amount by invoking the provisions of Rule 43(b) against the person, due to whose negligence pecuniary loss was caused to the State Government.
17. In the present case, it has not been made clear as to why no such action was taken under Rule 43(b) or any other Rule against the persons, due to whose negligence excess amount was paid to the petitioner and that caused pecuniary loss to the government. If such negligent employee is already in service, then it could have been recovered by initiating a departmental proceeding for negligence of duty.
18. It has been noticed in this case that the State Government has not taken any decision to recover or adjust any amount from the pension or gratuity of the writ petitioner-1st respondent. There is nothing on the record to suggest that any opportunity was given to the writ petitioner 1st respondent, asking him to show cause why the excess payment made due to mistake be not recovered form his pension or gratuity. If such opportunity would have been given the retired employee could have shown that such recovery or adjustment was not permissible or was not called for. Further, the period during which such mistake was committed having not been mentioned, the retired employee will not be in a position to point out whether such recovery or adjustment is barred by limitation.
27. In Sahib Ram's case, supra, Hon'ble Supreme Court held that benefit of higher pay scale given to an employee without any misrepresentation on his part, cannot be recovered from him. In Paragraph 5 of the said decision, the Supreme Court held as follows:
5. Admittedly, the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant.
28. In Ram Prasann Singh's case, supra, this Court has held that no recovery can be made from the retrial benefits with out giving the pensioner an opportunity of hearing, inasmuch as, any amount paid to an employee in the form of excess payment cannot be recovered, if there is no misrepresentation on the part of the person for getting higher pay scale.
29. Similar views were taken by another Single Judge (Pramod Kohli, J) in Md. Usman v. State of Jharkhand and Ors. .
30. In Bijay Bahadur's case : (2000)10SCC99 , supra, a decision was taken by the Board against an employee for recovery of the excess sum paid to him by way of increments on the ground that they did not pass the Hindi Noting and Drafting Examination at the relevant time which is a condition precedent for grant of annual increment in terms of the policy decision of the Board. The Supreme Court concurring with the decision in Sahib Ram's case came to the conclusion that since payment has been made without any representation or misrepresentation, the appellant could not possibly be granted an opportunity to deduct or recover the excess amount paid by way of increment at an earlier point of time. It was further held that the act on the part of the Board cannot under any circumstance is said to be in consonance with the equity, good conscience and justice and further held that the action initiated for recovery was not sustainable in any circumstance. However, the order was restricted to the facts of the said case.
31. In Nand Kishore Pandey's case, supra, a Division Bench of this Court (Hon'bles M.Y. Eqbal & D.P. Singh, J) relying on the decision of the Supreme Court in Sahib Ram and Bijay Bahadur, supra, held, in almost similar circumstances that it was totally unfair on the part of the Board to direct recovery of the amount paid as increments to the petitioner years ago.
32. In Smt. Girish Kumari Prasad, supra, the Division Bench of this Court (Hon'ble P.K. Balasubramanyan, CJ & Hon'ble Tapen Sen, J) has held that something that is not due was given either because of negligence, collusion or fraud, the Accountant General can rectify the mistake committed either by omission or by commission by someone in the department. There cannot be any estoppel to seek any recovery of unauthorized payment made to an undeserving person. The fact that someone had made an error in giving a time bound promotion to the writ petitioner when it was no due, could not clothe him with any special right. However, it has not been held that any such amount would be recovered from the pensionary benefit of the retired employee without following the procedure provided under Rule 43(b) of the Pension Rules or without following the procedure established by law for holding guilty of negligence, collusion or fraud or without holding any person responsible and liable for such mistake, negligence or fraud. The decision in the case of Smt. Girish Kumari Prasad, supra, has absolutely no conflict with the decision of the Division Bench in State of Jharkhand and Ors. v. Baleshwar Singh and Anr. (Hon'bles S.J. Mukhopadhaya & Permod Kohli, J) or any other decision of this Court referred to above. In the instant case learned Single Judge has decided the impugned order holding that no amount can be recovered from the pension except by an order passed under Rule 43(b) of the Bihar Pension Rules, 1950 as in the instant case, neither the State Government nor the competent authority has initiated any proceeding under Rule 43(b) of the said Rules while the petitioner was in service and even after 16 years of his retirement and even the proceeding under Rule 43(b) of the said Rules is barred by limitation and the same cannot be initiated now. He further held that no recovery can be made from the pension of the petitioner including the provisional/final pension or from the gratuity. Learned Single Judge has noticed that even recovery by way of suit and certificate proceeding is also time barred after lapse of 16 years from the retirement of the petitioner. The impugned order dated 2.9.97 (Annexure-2) issued by the Accountant General as well as the letter dated 3.1.05 (Annexure-3) issued by the Block Development Officer, Chandankeyari seeking recovery were quashed and the respondents were directed to refund the amount already recovered from the petitioner. The respondents were also directed to finalize the pension of the writ petitioner within the time prescribed and to pay the admitted arrears with interest @ 5 % with cost. The said order of the learned Single Jude has been passed after taking into consideration the relevant provisions and the same is in consonance with the other decisions of the Apex Court as well as of this Court, as noticed above. We find no illegality or infirmity in the impugned order of the learned Single Judge. There is, thus, no merit in this letters patent appeal which is accordingly dismissed with cost of Rs. 10,000/- to be paid by the appellants to the 1st respondent.
33. It has been informed that the petitioner's final pension has been fixed during the pendency of this appeal. The appellants are directed to pay the arrears of pension and gratuity to the petitioner along with interest as directed by the learned Single judge within a period of two months from the date of receipt/production of a copy of this order, if not already paid. The respondents shall also refund the amount of the pension which was withheld and sought to be adjusted against the alleged dues within the said period. If the arrears/amounts aforesaid are not paid to the 1st respondent within the said period, he shall be entitled to get interest @ 10% per annum on the amount of arrears from the date of his retirement till final payment.
D.K. Sinha, J.
34. I agree.