Ram Nath Roy v. The State of Bihar

2/13

learned counsel for the State and the learned counsel appearing on behalf of the Accountant General, Bihar, Patna.

2. The present writ petition has been filed for the following reliefs:-

"(i) For issuance of a writ in the nature of Mandamus commanding the respondent authorities to quash the letter issued by District Programme Officer, Sitamarhi to petitioner's in which order was passed to adjust excess amount from the pension and gratuity of petitioner's that have been paid during the service period in salary.

(ii) For issuance of a writ in the nature of Mandamus commanding the respondents authorities to provide gratuity and fixed the pension without reducing the excess amount that has been alleged regarding receiving this amount during the service period petitioners.

(iii) For issuance of any other relief/reliefs sought for in the writ petition".

BRIEF FACTS

3. The brief facts giving rise to the present writ petition are that the petitioners retired on different dates as teachers/headmasters from different schools in the State of Bihar. After their retirement an order was issued for recovery of certain amounts from all the writ petitioners. Vide letter no. 3674 dated 08.11.2022, issued under the signature of the District

3/13

Programme Officer (Establishment), Sitamarhi addressed to the Treasury Officer, Sitamarhi, it was communicated that due to wrong fixation of the pay of the petitioner no.1, Rs. 4,79,927/- has been found to be recoverable and the same be deducted from his pension/gratuity and then the remaining payments can be made to the petitioner no. 1. Similarly, vide letter no. 496 dated 21.02.2022 Rs. 6,64,685/- was found to be recoverable from the petitioner no. 2, Rs. 10,29,829/- was found to be recoverable from the petitioner no. 3, which was communicated to the authorities concerned vide letter no. 4769 dated 09.06.2022, Rs. 2,36,071/- was found to be recoverable from the petitioner no. 4, which was communicated to the authorities concerned vide letter no. 3930 dated 29.11.2022, Rs. 5,36,936/- was found to be recoverable from the petitioner no. 5, which was communicated to the authorities concerned vide letter no. 1949 dated 21.06.2022, Rs. 5,58,374/- was found to be recoverable from the petitioner no. 6, which was communicated to the authorities vide letter no. 3842 dated 23.11.2022, Rs. 1,78,375/- was found recoverable from the petitioner no. 7, which was communicated to the authorities concerned vide letter no. 1052 dated 06.04.2022, Rs. 3,49,263/- was found to be recoverable from the petitioner no. 8, which was communicated

4/13

to the authorities concerned vide letter no. 3873 dated 25.11.2022 and Rs. 1,21,875/- was found to be recoverable from the petitioner no. 9, which was communicated to the authorities concerned vide letter no. 244 dated 07.07.2022. It is further case of the petitioners that without issuance of any show-cause or any information to the petitioners, the amounts mentioned above have been directed to be recovered from the petitioners, which is contrary to the provisions of principles of natural justice and that too, after retirement of the petitioners. The petitioners gave representation on 10.03.2023 before the District Programme Officer, Sitamarhi for refund of the excess amount, that has been recovered from pension/gratuity, however, no action was taken on the same.

SUBMISSION ON BEHALF OF THE

PETITIONERS

4. The learned counsel for the petitioners submits that action of the respondent authorities is in teeth of the judgments passed by this Hon'ble Court as well as the Hon'ble Supreme Court of India, inasmuch as that prior to issuance of the impugned letters, by which directions have been issued to the District Treasury Officer/concerned authorities to recover/adjust the excess amount paid to the petitioners, on account of wrong

5/13

fixation of pay, no notice whatsoever was issued to the petitioners. The impugned order contained in Annexure-P/1 to Annexure-P/9 to the present writ petition, have been issued in violation of the principles of natural justice. He further submits that after retirement, the relationship of master and servant came to an end and therefore, the respondent authorities were not authorized to re-fix the pay of the petitioners and to direct for recovery of the said amount. He further submits that so far the petitioner no. 4 is concerned, out of Rs. 8,97,829/-, Rs. 6,61,758/- was recovered earlier and later on Rs. 2,36,07/- was recovered/adjusted from the payable amount to the petitioner.

5. The learned counsel for the petitioners refers to and relies on a judgment of the Hon'ble Supreme Court of India reported in 2009 (3) SCC 475 (Syed Abdul Qadir vs. the State of Bihar and Ors.), wherein in paragraph no. 59, it has been held as follows:-

"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the

6/13

result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. The learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."

Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir case, that recovery of excess payments, made from the employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences

outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid

7/13

circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year from the date of his retirement on superannuation."

6. The learned counsel for the petitioners further refers to and relies upon a judgment of the Hon'ble Supreme Court of India reported in 2015 (4) SCC 334 (State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors.), wherein in paragraph no. 18, it has been held as follows:-

"18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and

8/13

Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

7. The learned counsel for the petitioner by referring to the above-mentioned judgments submits that in view of the settled proposition of law the respondent authorities should not have proceeded with the recovery and any recovery which has been done from the pension/gratuity of the petitioners, is illegal.

SUBMISSION ON BEHALF OF THE STATE

8. Per contra, the learned counsel appearing on behalf of the State submits that after retirement of the petitioners, it

9/13

came to the knowledge of the authorities concerned that on account of wrong fixation of the pay scale of the petitioners, they have been given higher pay scale and the same was rectified by the authorities. On account of rectification, the pay scales of the petitioners have been reduced and the authorities concerned directed for recovery of the excess amount, which has been paid to the petitioners on account of incorrect/wrong fixation of pay. He further submits that vide letter no. 48 dated 13.01.2023, issued under the signature of the Director Primary Education, Government of Bihar, Patna, a direction was issued to all the District Education Officers/District Programme Officers (Establishment) to follow the judgment dated 23.09.2022 passed in C.W.J.C. No. 2783 of 2021 (Chandrakant & Ors. vs. the State of Bihar & Ors.) which relates to pay fixation of the teachers of the school. He submits that since the pay fixation of the petitioners were incorrectly done and when the same came to the knowledge of the respondent authorities, the correct pay fixation has been done and the amounts, which was found to be paid in excess to the petitioners, have been directed to be recovered.

ANALYSIS/CONSIDERATION

9. Having considered the rival submissions and after

10/13

going through the records, it appears that the petitioners superannuated from service on different dates in between 2021- 2022. After their retirement, their pay fixation was again done, since the respondent authorities found that the petitioners were paid higher scale, although they were not entitled for the said scale. On account of the re-fixation of the pay scale of the petitioner on the lower side, certain amounts were found to be paid in excess to the petitioners and therefore, by the impugned letters contained in Annexure-P/1 to P/9 to the writ petition, a direction was issued to the concerned District Treasury Officer/concerned authority to recover the said excess amount from the respective petitioners. From the documents and pleadings on record, it appears that prior to issuance of the said letter of recovery, no notice whatsoever was issued to the petitioners to submit their reply and the authorities on their own, unilaterally proceeded to direct for recovery of the amounts mentioned in the impugned orders, from each of the petitioners. It is settled proposition of law that before any adverse order is passed against an employee, the principles of natural justice has to be followed, inasmuch as that a notice was required to be given to each of the petitioners, that why the recovery be not effected from them. Further it is not the case of the respondents

11/13

that the pay fixation of the petitioners was done on higher side on account of any misrepresentation or fraud on their part and the petitioners had no knowledge that the amount that was being paid to them was more than what, they were entitled to.

10. The Hon'ble Supreme Court of India in a judgment reported in AIR 2023 SC 2187 (Sasikala Devi P. v. State of Kerala) in paragraph no. 12, has held as follows:-

"12. At the time of the hearing, it was submitted that all the appellants who were given the benefits have retired from service and recoveries were sought to be made from them though they were not at fault in grant of those benefits at the time of promotion. Considering the aforesaid fact and keeping in view the judgment of this Court in State of Punjab and Others v. Rafiq Masih (White Washer) and Ors.[(2015) 4 SCC 334: AIR 2015 SC 696], we direct that no recovery of the amount already paid to them be effected. However, their pension can be refixed considering the emoluments to which the appellants were entitled at the time of their retirement in accordance with the rules."

11. Even this Court vide oral judgment dated 18.03.2026 passed in C.W.J.C. No. 8506 of 2022 (Shashi Lata Kumari vs. The State of Bihar & Ors.) by placing reliance on

12/13

the judgment of the Hon'ble Supreme Court of India in the case of Sasikala Devi P. (supra) proceeded to set aside the order of recovery from the petitioners of that case.

12. Accordingly, on the basis of the consideration made above, the impugned orders contained in Annexure-P/1 to P/9, issued under the signature of the District Programme Officer (Establishment), Sitamarhi, so far it relates to the petitioners herein are concerned, are set aside.

13. If any recovery has been made on the basis of the above-mentioned letters i.e. Annexure- P/1 to Annexure-P/9 to the present writ petition, the petitioners would be entitled for refund of the said amount within a maximum period of three months from the date of receipt/production of a copy of the order before the District Programme Officer (Establishment), Sitamarhi.

14. It is further directed that the pension of the petitioners be re-fixed, considering the emoluments/pay, to which the petitioners were entitled at the time of their retirement, after giving due opportunity to the petitioners to present their cases and after considering the reply to be filed on behalf of the petitioners, in accordance with law.

15. With the above-mentioned observations and

13/13

directions, the present writ petition stands allowed.

16. Pending application, if any, shall also stand disposed of.

(Ritesh Kumar, J)

vinita/-