GUPTESHWAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner claims that he was appointed as Tube Well Borer in the Minor Irrigation Department in the State of Bihar. He retired from service on 31.3.1993. He has filed this writ petition challenging the order dated 8.12.1993 (Annexure -1 to the Writ Petition) whereby and whereunder his pension has been calculated on the basis of pay of Rs.1350/ - per month instead of Rs.1540/ - per month which he was actually getting till the date of retirement. By the impugned order directions have also been issued to recover the excess pay and allowances paid to the petitioner. This Writ Petition was filed on 6.9.1996. On 15.5.1997 learned counsel for the State was granted time to file Counter Affidavit and the case was directed to be listed after Summer Vacation. As no Counter Affidavit was filed, on 14.7.1997 three weeks' further time was granted to file Counter Affidavit. Thereafter on 2.9.1997 a Counter Affidavit was filed by the Executive Engineer, Minor Irrigation Division, Madhubani who has been impleaded as Respondent No.3 to the writ petition. Counter Affidavit has also been filed by the Accounts Officer working in the office of the Accountant General, Bihar, Patna.

(2.) BEFORE filing the present Writ Petition another Writ Petition bearing No. 5438 of 1994 was filed by the petitioner earlier which was disposed of by this Court on 3.1.1996 directing Respondent no.3 to give a show cause notice to the petitioner before making any adjustment of the post retirement benefits. In paragraph 17 of the Writ Petition it has been stated by the petitioner that in spite of the direction of this Court no show cause was given by Respondent no.3. This fact has been disputed by Respondent no.3 in his Counter Affidavit by stating that show cause notice had been served on the petitioner in the light of the direction of this Court's order passed in C.W.J.C. No. 5438 of 1994. There is nothing on record to show as to whether any decision has ten taken or not on the basis of the show cause notice. No such order has been filed along with the Counter Affidavit. The Accountant General, Bihar by his letters filed at Annexure -A, Band C to the Counter Affidavit asked the Executive Engineer to let him know about the order passed in the petitioner's case but it appears there (sic) response from the said Engineer. Be that as it may, the petitioner has been getting the alleged enhanced sarary with effect from 1.4.1981. There is no allegation in the Counter Affidavit or in the impugned order to show that any misrepresentation at fraud has been committed by the petitioner on account of which enhanced pay was given to him. In the Counter Affidavit, Respondents have come out with a case that enhanced pay was given to the petitioner with effect from 1.4.1981 due to its wrong fixation made by the department. Even if it is so, this excess payment, if any, already made from 1981 till the date of retirement cannot be recovered unless it has been pleaded and proved by the Respondents that such payment has been made on account of fraud or misrepresentation on the part of the petitioner. But there is no such allegation.

(3.) IN Sahib Ram Vs. State of Haryana [1995 Supp(1) Supreme Court Cases 18] the Apex Court has held that if excess payment is made by the employer to the employee in the form of pay without there being misrepresentation on the part of the employee, the employer is not entitled to recover the same from the employee. This Court in Raghubir Prasad Singh vs. Bihar State Electricity Board and others (1996 B.B.C.J. 15) relying upon the aforesaid decision of the Apex Court as well as the unreported decision of this Court has reiterated the same view holding that if the excess payment has been made without there being any misrepresentation on the part of the employee, it is not open to the employer to recover the same. In view of the facts and circumstances of the case and the law referred to above, it is not necessary for this Court to decide as to whether, any excess payment has been made to the petitioner.