Patna High Court
Bihar State Electricity Board And Ors. vs Madan Mohan Prasad And Ors. on 20 February, 2001
Equivalent citations: 2001(2)BLJR920
Author: S.K. Katriar
Bench: S.K. Katriar
ORDER
1. This appeal under Clause 10 of the Letters Patent of the Patna High Court has been preferred against the order dated 18-2-2000, passed by a learned Single Judge in CWJC No. 3693 of 1998 (Madan Mohan Prasad v. Bihar State Electricity Board and Ors.), whereby the order bearing memo No. 352, dated 12-3-1998 (Annexure-2 to the writ petition), has been set aside. By this order, the appellant-Board sought to recover a sum of Rs. 40, 183.60p. from respondent No. 1 (the writ petitioner) on account of excess pay drawn by him due to wrong fixation of pay while he was in service.
2. Respondent No. 1 had initially joined the appellant's service as a Bill Clerk, was promoted to the higher post of Assistant Accountant, and finally retired as Accountant with effect from 31-7-1997 after reaching the age of sixty years.
Respondent No. 1 had submitted representation dated 31-1-1984 (Annexure-2) to the appellant stating therein that one Jagdish Prasad, Upper Division Assistant Accountant, was junior to him but drawing higher salary. It was, therefore, requested to grant pay protection to respondent No. 1. The Board examined the matter and afforded pay protection to respondent No. 1, vide order bearing memo No. 126, dated 14-5-1984 (Annexure-4 to the writ petition). The order incorporated the following condition while affording pay protection to respondent No. 1:
3. By letter bearing memo No. 3756, dated 4-11-1995 (Annexure-6 herein), the Board had withdrawn the pay protection afforded to the aforesaid Jagdish Prasad, and by the consequential office order No. 13, dated 3-2-1996 (Annexure-7 herein), the excess pay drawn by him was recovered from him. It is stated in the second supplementary affidavit filed on behalf of the Board that Jagdish Prasad superannuated from the services of the Board in August 1995, and the amount has already been recovered from him.
4. Respondent No. 1 herein, in the meanwhile, superannuated with effect from 31-7-1997. It appears from the internal communication dated 10-9-1997 of the Board (Annexure-4 herein) that in view of the aforesaid steps leading to recovery of the excess payment made to Jagdish Prasad, it was felt that the pay protection afforded to respondent No. 1 should also be reopened on the same lines as Jagdish Prasad. The matter was examined in detail which led to the order dated 17-10-1997 (Annexure-2 to the writ petition and impugned therein), whereby"... a sum of Rs. 40 183.60p. on a/c of excess pay drawn due to wrong fixation of pay is recovered from total sanctioned amount of D.C.R. Gratuity payable to Sri Madan Mohan Prasad Retd. Acctt...". The amount has since been deducted and recovered from D.C.R. Gratuity payable to respondent No. 1
5. Respondent No. 1 challenged the said order dated 12-3-1998 (Annexure-2 to the writ petition) by preferring CWJC No. 3693 of 1998, which has been allowed by a learned Single Judge of this Court, and the same has been quashed on the ground that the petitioner had not received higher pay by misrepresenting the facts before the authority concerned. It has further been held that refixation of the pensionary benefits on the basis of the pay admissible to the employee concerned cannot be faulted.
6. Aggrieved by the first part of the order whereby the order dated 12-3-1998 has been set aside the Board has preferred the present appeal. Learned Counsel for the Board submits that there are two broad exceptions to the general proposition of law that the money benefit given to an employee should not normally be recovered after long lapse of time, particularly after his superannuation. The present case. It is submitted, is covered by one of the exceptions.
7. Learned Counsel for respondent No. 1 has countered the submission.
8. Having considered the rival submissions, we are of the view that this appeal is fit to be allowed. Law is well settled that money benefit paid to an employee in excess of his entitlement should not normally be recovered from him after a long lapse of time, particularly after his superannuation from service. If is, however, subject to two exceptions, namely, if the order granting the money benefit itself stipulates that the same is liable to be recovered if found erroneous at a later stage or is subject to approval by authorities. The second exception is that such a money benefit can be recovered if it is found at later stage, that the same had flowed to the employee on account of fraud, misrepresentation or the like attributable to him. Law is equally well settled that even if the money benefit already paid is not recoverable because of applicability of the dominant principle of law de hors the exceptions, the pensionary benefits payable in future can be refixed on the basis of the admissible pay. We may in this connection refer to paragraph 5 of the judgment dated 6-12-2000, passed by one of us (S.K. Katriar, J.), in CWJC No. 2978 of 1999 (Badamo Devi v. The Mg. Director; Bihar State Road Transport Corporation), the relevant of which is as follows:
5. Then arises the question of recovery from the dues admissible to the petitioner's late husband or to the petitioner herself on account of his overstay in the service of the Corporation for the period from 1-2-1986 to 31-1-1993. Although it is settled by a long line of cases that if an employee receives money benefit in excess of his entitlement then the same should normally not be required to be refunded after he has superannuated or has died. This board proposition is subject to two exceptions- firstly, if the order giving the money benefit clearly stipulates that the same is being given subject to the fulfilment of a particular condition or subject to approval of a higher authority failing which the money benefit can be recovered even after superannuation. Secondly, if the employee has received the money benefit on account of fraud, misrepresentation or the like attributable to him, then the recovery can be made. The present case is squarely covered by the latter proposition. Therefore, I have no hesitation in coming to the conclusion that the Corporation is entirely justified in ordering recovery of the excess payment made to Ram Kishun Ram or to his widow (the present petitioner) for the period of his overstay in the service of the Corporation from 1-2-1986 to 31-1-1993.
9. We pass on the next aspect of the matter, namely, application of the aforesaid law to the facts and circumstances of the present case. It is manifest from the aforesaid narration of facts that the petitioner was afforded pay protection because Jagdish Prasad, juniorto him in service, was getting higher pay. The pay protection afforded to Jagdish Prasad was later on withdrawn and the excess amount paid to him was recovered after he had superannuated from the service of the Board. In that view of the matter, the very basis for affording pay protection to respondent No. 1 disappeared. When the sub-stratum is gone, where is the question of the superstructure. The aforesaid order dated 14-5-1984 (Annexure-4 to the writ petition), whereby pay protection was afforded to respondent No. 1, had clearly stipulated that the pay protection being afforded to respondent No. 1 herein would later on be withdrawn if the headquarters or the superior authorities do not approve of the same, or any error is found in the order, and recovery can be made. It is thus manifest that the present case is covered by one of the two exceptions stated hereinabove justifying recovery of the excess amount paid to respondent No. 1. We, therefore, with respect disagree with this part of the order of the learned Single Judge. On the strength of one of the two exceptions indicated hereinabove, we uphold the order dated 12-3-1998 (Annexure-2 to the writ petition). The Board in the facts and circumstances of the case was justified in making recovery of the excess amount paid to respondent No. 1 on account of the disappearance of the basis on which the pay protection was afforded to him way back in May 1984, coupled with the factual position that the same was clearly stipulated in the order affording pay protection.
10. We with respect agree with the other conclusion of the learned Single Judge that pensionary benefits can be refixed on the basis of the admissible pay to respondent No. 1, a position in fact not disputed by either of the parties before us.
11. In the result, we uphold the order dated 12-3-1998 (Annexure-2 to the writ petition), and pro tanto set aside the order of the learned Single Judge dated 18-2-2000, passed in CWJC No. 3693 of 1998.