Retired petitioner challenged an order directing recovery of excess pension based on a reduced pay scale. The High Court set aside the recovery order for lack of notice and directed payment of recovered dues.
Set aside the impugned recovery order and directed respondents to pay the recovered amount to the petitioner within three months.
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15675 of 2006
====================================================== Sheo Nandan Mistry , son of Shri Ram Khelawan Mistry, resident of village Chandrakura, P.O. Dahabigha, P.S. Karai, Parsurai, District nalanda .... .... Petitioner/s Versus 1. The State of Bihar 2. the Director, Social Welfare Bihar, patna 3. the Deputy Director, Social Welfare, Women Cell, Patna Secretariat, patna 4. the Deputy Director, Welfare, patna Division, patna 5. the Superintendent Remand Home, Gaighat, patna - 7 6. the Accountant General, Bihar, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Dudh Nath Singh For the Respondent/s : Mr.J.P. Karn AC to GP No. 17
====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER
9 30-03-2015 Heard Sri Dudhnath Singh, learned counsel for the petitioner, learned AC to GP No. 17 and Sri J.P. Karn, learned senior counsel, who has appeared on behalf of respondent no.6/ Accountant General, Bihar.
This is a peculiar case in which the petitioner, who retired long back on 31.1.1998 as craft instructor, Class - III post, has been compelled to approach this court by filing the present writ petition under Article 226 of the Constitution of India, with a prayer to quash an order contained in Memo No.1696 dated 4.10.2006 whereby, Director, Social Welfare, Government of Bihar has directed for recovery of the excess payment made to the
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petitioner in view of second time bound promotion granted to the petitioner with effect from 23.7.1991 in the scale of Rs. 1500 - 2780/-. This amount was reduced by the impugned order with effect from 23.7.1991 to the scale of Rs. 1400- 2600/-.
Learned counsel for the petitioner submits that after retirement of petitioner since retiral dues were not paid, the petitioner earlier approached this court by filing a writ petition vide CWJC No.4209 of 2000 which was disposed of on 20.5.2004 in view of supplementary counter affidavit in which it was stated that but for a small amount all retiral dues have been paid to the petitioner. Only amount unpaid relates to differential salary receiveable by the petitioner by virtue of the second time bond promotion allowed to him. Though the order of the writ court was passed on 20.5.2004, suddenly the respondent no.2/ Director , Social Welfare, has come out with a peculiar order vide Annexure - 1 to the writ petition and directed for recovery of the said amount.
Sri J.P. Karn, learned senior counsel for the Accountant General submits that in compliance with the order of the writ court, authorization in respect of pension and gratuity has already been done by the Accountant General.
In this case a counter affidavit has also been filed on
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behalf of respondent no.1 to 5 /State, wherein the respondents have justified the action of recovery.
Learned counsel for the petitioner submits that after retirement of the petitioner, the petitioner was not at all given any notice in respect of reducing his pay scale as per two time bound promotion, which was earlier granted to the petitioner with effect from 23.7.1991 and without giving any opportunity, after the order passed by the writ court vide Annexure - 3 to the writ petition, an illegal order has been passed by the authority concerned vide Annexure - 1 to the writ petition.
Besides hearing learned counsel for the parties, I have also perused the materials available on record. On perusal of the materials on record including the counter affidavit, the court is of the opinion that it is not at all evident as to whether before passing such order i.e. recovery order, any opportunity was given to the petitioner. Moreover, since the petitioner retired holding a Class -III post, unless there was a case of misrepresentation by the petitioner or fraud committed by the petitioner, there was no authority on the part of the respondent to pass recovery order and as such, the order impugned i.e. Annexure - 1 is hereby set aside with a direction to the respondents to take all steps for payment of recovered amount to
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the petitioner within a period of three months from the date of receipt/ production of a copy of this order.
The writ petition stands allowed.
(Rakesh Kumar, J)
Praful/U
2 issues framed by the court
Whether the writ petition filed by a retired employee seeking quashing of an order directing recovery of excess pension is maintainable under Article 226.
Whether the recovery order passed by the State after reducing the petitioner's pay scale without issuing prior notice was valid and lawful.
1 provisions across 1 enactments
Sheo Nandan Mistry
State of Bihar
Director, Social Welfare Bihar
Deputy Director, Social Welfare, Women Cell
Deputy Director, Welfare
Accountant General, Bihar
Rakesh Kumar
As recorded by the court registry
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