Recovery of alleged excess payment after retirement is permissible only in case of misrepresentation or commission of fraud by the employee, as established by the principle in Sahib Ram V/s. State of Haryana.

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/s. 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/s. 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/s. 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/s. 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/s. Bihar State Electricity Board and Ors., (C.W.J.C. No. 12304 of 2001 disposed of on 20-5-2003 considered t