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2017 Supreme(Pat) 1041
IN THE HIGH COURT OF PATNA
ASHWANI KR. SINGH, J.
SMT. BINA SINHA - Appellant
Vs.
BIHAR STATE POWER HOLDING COMPANY LTD. - Respondent
Civil Writ Jurisdiction Case No. 15497 of 2015
Decided On : 12-07-2017
For the Petitioner:Mr. Ramnandan Kr. Sinha and Mr. Nitesh Kumar Nirala, Advocates.
For the Respondents:Mr. Vinay Kirti Singh, Sr. Advocate.
Recovery of excess amount paid to Class III and Class IV employees due to employer's mistake is not permissible in law, especially in cases of retired employees or those due to retire within one year of the order of recovery.
Headnote:
Recovery - Employment Dispute - Bihar Pension Rules, Standing Order No. 385 - The court discussed the recovery of excess pay from gratuity and the applicability of the Bihar Pension Rules and Standing Order No. 385. The key legal provision discussed was the Supreme Court's ruling in State of Punjab & Ors. v. Rafiq Masih (While Washer) [AIR 2015 SC 696], which established that recovery of excess amount paid to Class III and Class IV employees due to employer's mistake is not permissible in law, especially in cases of retired employees or those due to retire within one year of the order of recovery. The court set aside the impugned orders and directed the respondents to pay the recovered amount to the petitioner.
Fact of the Case:
The petitioner's husband, an employee of Bihar State Transmission Company Limited, had excess pay recovered from his gratuity due to a wrong fixation of pay. The petitioner sought quashing of the recovery order and subsequent disposal of her representation.
Finding of the Court:
The court found that the recovery of excess amount from the deceased employee's gratuity was unjustified and unsustainable in law, citing the Supreme Court's ruling in State of Punjab & Ors. v. Rafiq Masih. The court set aside the impugned orders and directed the respondents to pay the recovered amount to the petitioner.
Issues: The issues involved the validity of the recovery of excess pay from the deceased employee's gratuity and the applicability of the Bihar Pension Rules and Standing Order No. 385.
Ratio Decidendi: The court applied the legal principle established in State of Punjab & Ors. v. Rafiq Masih, ruling that recovery of excess amount paid to Class III and Class IV employees due to employer's mistake is not permissible in law, especially in cases of retired employees or those due to retire within one year of the order of recovery.
Final Decision: The court set aside the impugned orders and directed the respondents to pay the recovered amount to the petitioner, with interest if not paid within the stipulated period.
Ashwani Kr. Singh, J.
Heard Mr. R.K. Sinha, learned Advocate for the petitioner and Mr. Vinay Kirti Singh, learned Senior Advocate for the respondents.
2. In the present writ petition, originally filed by the husband of the petitioner Girish Kumar Sinha, who died during the pendency of the writ petition on 01.09.2016 and the petitioner being his wife was substituted vide order dated 05.07.2017, prayer was for quashing of the order of recovery dated 24.05.2012 by which a sum of Rs. 1,90,482/- had been recovered from the gratuity of the petitioner on account of excess pay drawn by him during his service period. It was also prayed for quashing of the order dated 14.11.2013 passed by the DGM (HR & Adm), Bihar State Power Transmission Company Limited whereby the representation filed by the petitioner in compliance of the order or this Court dated 24.06.2013 passed in CWJC No. 22586 of 2012 had been disposed of without interfering with the aforesaid order of recovery dated 24.05.2012.
3. The facts of the case are not in dispute.
4. The original petitioner was appointed as Bill Clerk in the Bihar State Electricity Board on 06.08.1968. Later on, he was promoted to the post of Accounts Assistant with effect from 15.01.1977. On promotion to the post of Accounts Assistant with effect from 15.01.1977, three advance increments allowed on account of passing the departmental examination of Bill Clerk was not finally withdrawn as per Board's Standing Order No. 385 dated 22.03.1973 in course of fixation of pay. As per the afore stated Standing Order three increments granted in lieu of promotion after passing departmental examination has to be withdrawn on promotion to the post of Accounts Assistant. Thus, the pay of the petitioner was wrongly fixed at Rs. 588 as on 15.01.1997. After re fixation of pay, as per rule the pay ought to have been Rs. 570 and not Rs. 588. On account of such error in fixation of pay over a period of time Rs. 1,90,482/- was paid in excess to what the original petitioner was entitled to during his service period. He, however, superannuated from service as Accountant on 28.02.2010 from Transmission Circle Dehri-on-sone. Thereafter, vide order dated 24.05.2012, respondent no. 3 directed for recovery of Rs. 1,90,482/- from his gratuity on account of excess pay drawn by him due to wrong fixation of pay. The aforesaid order dated 24.05.2012 was challenged in CWJC No. 22586 of 2012. The said writ petition was disposed of vide order dated 24.06.2013 granting liberty to the petitioner to file representation before respondents in order to show that additional increments ought not to have been withdrawn in accordance with law and the respondent no. 3 was directed to dispose of the same by a speaking order. Thereafter, he filed his representation before the Company Secretary, Bihar State Power Transmission Limited on 9.07.2013 stating therein that the recovery of amount on account of wrong fixation of pay was not permissible in view of the ratio laid down by this Court as well as the Supreme Court as there was no misrepresentation or fraud on the part of the petitioner. Thereafter, vide order dated 14.11.2013, the DGM (HR & Adm), Bihar State Power Transmission Company Limited disposed of the representation of the petitioner holding that the aforesaid recovery of Rs. 1,90,482/- from the gratuity of the petitioner was under the norms and rules prevailing in the Code.
5. Assailing the aforesaid order dated 14.11.2013 passed by the DGM ( HR & Adm) and the order dated 24.05.2012 passed by respondent no. 3, Mr. Ramnandan Kumar Sinha, learned counsel for the petitioner has submitted that recovery of the aforesaid amount is bad in law as well as on fact. He has submitted that no proceeding for recovery of amount was ever initiated against the deceased husband of petitioner under Rule 43(b) of the Bihar Pension Rules and even without issuance of any notice, a suo motu decision has been taken by the respondents to recover the amount fr
