Patna High Court - Orders
The State Of Bihar & Anr vs Deotanand Singh & Anr on 2 August, 2012
Bench: Chief Justice, Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.616 of 2011
In
Civil Writ Jurisdiction Case No. 7581 of 2005
With
Interlocutory Application No. 2834 of 2011
With
Interlocutory Application No. 2835 of 2011
In
Letters Patent Appeal No. 616 of 2011
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1. The State of Bihar
2. The Senior Superintendent of Police, Patna.
.... .... Respondents..Appellants
Versus
1. Deotanand Singh son of Late Brij Raj Singh, retire Sub-Inspector of
Police, Patna, At present resident of village Karan Chapra, P.S.-Dokti,
District-Balia (U.P.)
.... Petitioner--Respondent 1st Set.
2. The Accountant General, Bihar.
.... .... Respondent--- Respondent 2nd Set.
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Appearance:
For the Appellants : Mr. Lalit Kishore, AAG 1
For the Respondent No.1: Mr. Ram Kumar Singh, Advocate.
For the Accountant General: Mr. Sanjay Kumar, Advocate.
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
4 02-08-2012Re. Interlocutory Application No. 2835 of 2011:
This application under section 5 of the Limitation Act is filed by the appellant - the State of Bihar for condonation of delay of 334 days occurred in filing the Letters Patent Appeal.
Learned Advocate Mr. Ram Kumar Singh has appeared for the respondent. He has contested the application.
On the facts and in the circumstances of the case, the delay is condoned on condition that the appellant-State of Bihar pays a cost of Rs. 500/- to the respondent no. 1- the writ petitioner.2 Patna High Court LPA No.616 of 2011 (4) dt.02-08-2012 2/5
The amount will be paid to the writ petitioner within three weeks from today.
Re. Letters Patent Appeal No. 616 of 2011:
This Appeal preferred by the State of Bihar & another under Clause 10 of the Letters Patent arises from the judgment and order dated 16th February 2010 passed by the learned single Judge in CWJC No. 7581 of 2005.
The writ petitioner is a retired Sub Inspector of Police. Since his retirement in 2002, under order dated 18th March 2004 made by the Senior Superintendent of Police, Patna, the petitioner's pay as on 1st August 1989 was revised to Rs. 2100/- against Rs. 2300/- earlier given to him. Consequently his pay was revised from year to year. On such revision of pay fixation a sum of Rs. 1,63,232/- was found recoverable from the writ petitioner as excess payment made over the years. By order dated 4th August 2004 made by the Senior Superintendent of Police, Patna the aforesaid amount of Rs. 1,63,232/- was ordered to be recovered. The pension and other terminal benefits were ordered to be reconsidered in view of the last pay of Rs. 8650.00 payable to the writ petitioner.
Feeling aggrieved, the writ petitioner filed above CWJC No. 7581 of 2005 to challenge the recovery of the sum of Rs. 1,63, 232/-. He also prayed for fixation of pension keeping in view of the last pay of Rs. 9175/- received by him and prayed for commutation of pension.
The petition was contested by the State Government. According to the State Government while extending the benefit of revision of pay, the pay fixation was made erroneously. Thus, the writ petitioner had been paid excess amount than due. The said 3 Patna High Court LPA No.616 of 2011 (4) dt.02-08-2012 3/5 mistake was noticed on verification of accounts. The writ petitioner was liable to repay the excess amount received by him.
It is worthwhile to note that although the writ petitioner challenged the recovery of the excess amount of Rs. 1,63,232/- and also prayed that the pension be fixed on the basis of the last pay of Rs. 9175/- received by him. He did not challenge the above referred order dated 18th March 2004 for the re-fixation of pay since 1st August 1989. Even before the learned single Judge the writ petitioner has specifically restricted his relief to the recovery effected under order dated 4th August 2004. Thus the only challenge is the recovery of the excess amount paid to the writ petitioner.
The learned single Judge was of the opinion that if there were any error or mistake made in pay fixation; the same was not under the influence of the writ petitioner; nor such erroneous pay fixation was made on account of fraud or misrepresentation by the writ petitioner. The recovery of the excess amount was, therefore, not justiciable. Accordingly, the learned single Judge has allowed the writ petition and has set aside the impugned order dated 4th August 2004 made by the Senior Superintendent of Police, Patna.
Feeling aggrieved, the State of Bihar has preferred this Appeal.
Learned Additional Advocate General Mr. Lalit Kishore has appeared for the appellants. He has submitted that the writ petitioner did not challenge the order of pay fixation made on 18th March 2004; thus the writ petitioner admitted the correctness of the said order. If the said order were correct, the necessary consequence would be recovery of the excess amount paid to the 4 Patna High Court LPA No.616 of 2011 (4) dt.02-08-2012 4/5 writ petitioner. Merely because the wrong pay fixation was made by the ministerial action and that it was not on account of fraud or misrepresentation by the writ petitioner, the recovery cannot be set aside. He has submitted that any amount paid erroneously shall be recoverable even under the law of contracts. In support of his submission, he has relied upon the judgment of the Full Bench of this Court in the matter of Ram Binod Singh Vs. The Bihar State Electricity Board & Ors [2007(3) PLJR 398(Full Bench)]. He has particularly relied upon paragraph Nos. 16, 17 and 26 of the judgment. The Full Bench of this Court, having considered various judgments and binding precedents, held, "hence in law, the position appears to be clear that there is no legal bar in ordering for recovery from retired employees where they have received money benefits on account of mistake at the ministerial level in the matter of fixation of pay, grant of increments or time bound promotion when the conditions precedent for such promotions were clearly non est. it is also found that in appropriate facts and situation of a case mistake, clear, plain and simple, leading to wrong grant of increment, time bound promotion or wrong fixation of pay can justify recovery from an employee who has already superannuated".
In our opinion, in view of the aforesaid judgment in the matter of Ram Binod Singh, the learned single Judge has fallen in grave error in deducing the principle laid down in the said judgment.
In view of the aforesaid clear pronouncement; although in the present case erroneous pay fixation was not made on account of fraud or misrepresentation on the part of the writ petitioner, he is liable to repay the excess amount received by him 5 Patna High Court LPA No.616 of 2011 (4) dt.02-08-2012 5/5 on account of erroneous pay fixation.
For the aforesaid reason, the Appeal is allowed. The impugned judgment and order dated 16th February 2010 passed by the learned single Judge in CWJC No. 7581 of 2005 is set aside. CWJC No. 7581 of 2005 is dismissed.
Interlocutory Application No. 2834 of 2011 stands disposed of.
(R.M. Doshit, CJ) (Ahsanuddin Amanullah, J) Sujit/-