TITLE-Nirmal Kumar Vs The State of Bihar
DECIDED on-22/12/2023
+CWJC No.15555/2022
CORAM-HON’BLE JUSTICE HARISH KUMAR
FACT
As per the facts of the case petitioner was appointed in the year 1988 as constable and after rendering more than 33 year of service he got promotion in the year 2022 in the post of Havildar,Ara Police Line,Bhojpur.In course of his service has also passed Hindi Noting and Drafting Examination in the year 2010 but the benifit was denied to him and all on a sudden vide Bhojpur District dated 27/09/2021 his salary has been revised w.e.f 01/01/2006 and alleged excess amount of Rs 5,71,203/- has been recovered from the gratuity amount in a most arbitrary manner.Where the learned counsel for petitioner states that action of recovery being illegal and wholly without jurisdiction.Whereas on the other hand learned Councel for state submits that the department came to know that wrong fixation of pay has been made, necessary action has been taken in accordance with law and direction has been issued to recover the excess amount.whilr directing the issues an emphasis has been made that at the time of fixation undertaking was given by the petitioner that any amount found excess to his entitlement,the same shall be recovered.
Law Involved/ Legal Provisions
As the present writ petition filed under Article 226 of the Constitution of India seeking a direction upon the respondent authorities to ensure payment of all his retiral dues as well as benefit of ACP and on the basis thereof to enhance the pension and further sought a direction not to recover Rs 5,71,203 from the gratuity amount of the petitioner.
Issue Raised
Whether the order directing for recovery if excess amount of RS 5,71,203 from the gratuity amount of the petitioner is sustainable.
The Court analysis and observations
As per the Hon’ble court after hearing both the parties observed and state that as per the stand of the state the petitioner has been allowed higher pay with effect from 01/01/2006 and the similar error gas occurred subsequently at the time of revision of pay scale which is said to have been detected in course of varification at the time of fubal fixation if his retrail benifits admissible dues in the year 2001.It is not the case of the respondents that the petitioner was responsible or instrumental to the decision of the alleged enhanced pay fixation and in fact the same was done by the Department itself.As the officer furnished an undertaking while opting for teg revised pay scale is bound by the undertaking would not be applicable in the facts of the present case since respondents have not come out with any such undertaking furnished by the petitioner while opting for the revised pay scale.The fixation of pay was done some time in the year 2009 and 2013 itself and the petitioner had never been placed on notice that any payment found to have been made in excess would be recovered.Now any such kind of notice or undertaking on or after the retirement of the employee would not come to rescue of the employer to superannuation of the employee.The court is in agreement with the aforenoted proposition of law.However the case in hand is quite distinguishable and thus the reliance of the state is wholly misconceived,Gone through the material and taking note of the settled legal proposition,this court finds that the case of the petitioner falls within the situation where the recovery if excess payment from the retired employee after such a long time us held ti be impermissible in law.The present application stands allowed.The impugned order directing for recovery of excess amount of RS 5,71,203 from the gratuity amount of teg petitioner held to be not sustainable and the respondent us directed to restore the amount.Respondents are further directed to ensure payment Of differential amount after revision and also accord the benefit of ACP and MACP in accordance with law.
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