Santosh Kumar Sinha vs The State Of Bihar
2023 Latest Caselaw 3818 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.6982 of 2023
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Santosh Kumar Sinha, Son of Late Sushil Kumar Roysen, Resident of Flat No. 303, 3rd Floor, Aroma Signature Apartment, Nirala Nagar, Digha, P.S. - Digha, District- Patna-800011.

... ... Petitioner Versus

1. The State of Bihar Through the Principal Secretary, Department of Industries, Secretariat, Bihar, Patna

2. The Principal Secretary Department of Industries, Secretariat, Bihar, Patna

3. The Deputy Secretary, Department of Industries, Secretariat, Bihar, Patna

4. The General Manager, District Industries Centre, Sheikhpura

5. The Incharge Officer, Finance Department Personal Claim Resolution, Old Secretariat, Bihar, Patna

6. The Accountant General, Birchand Patel Road, Patna

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Surendra Kumar, Advocate For the A.G. : Ms. Ritika Rani, Advocate For the State : Mr. Shankar Kumar, AC to AAG-7 ====================================================== CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT Date : 18-08-2023

Heard Mr. Surendra Kumar, learned counsel

appearing on behalf of the petitioner; Ms. Ritika Rani, learned

counsel appearing on behalf of Accountant General and Mr.

Shankar Kumar, learned AC to AAG-7 for the State.

2. In the present writ petition, the petitioner has

prayed for following reliefs:

"(i) Issuance of writ in the nature of certiorary to quash the order dated 31.03.2023 vide Memo No. 2135 passed by the Deputy Secretary, Department of Industries, Bihar, Patna Patna High Court CWJC No.6982 of 2023 dt.18-08-2023

who has rejected the representation of the petitioner pursuant to the order passed in C.W.J.C. No. 1410 of 2023 dated 23.02.2023 by Hon'ble Mr. Justice R.R. Prasad (Annexure-16).

(ii) Issuance of writ in the nature of Mandamus directing and commanding the respondent not to act upon revised and reduced the pension from Rs. 42,550/- to 41,300/- (difference of Rs. 1250/-) in monthly pension recover from the amount of commutation of pension and gratuity of the petitioner which has been sanctioned on 07.04.2021 (Annexure-6) by the competent authority.

(iii) Issuance of direction to the respondent to keep Annexure-7 and 8 in abeyance.

(iv) Any other relief/reliefs as may deed fit and proper by this Hon'ble Court."

3. Learned counsel appearing on behalf of the

petitioner submitted that the petitioner has retired from the post

of In-Charge General Manager on 31.08.2020. The petitioner is

aggrieved on account of recovery amounting to Rs. 51150/-

from gratuity and Rs. 49164/- from the pension of the petitioner

on the basis of letter dated 30.01.2023 of the Principal Secretary,

Department of Industries Secretariat, Bihar, Patna (Respondent

No.2) as contained in Annexure-16. Learned counsel submitted

that in paragraph No. 17 of the counter affidavit, the

respondents have admitted that the pay fixation of the petitioner

was done by the District Accounts Officer, Purnea and the same Patna High Court CWJC No.6982 of 2023 dt.18-08-2023

was verified by the District Accounts Officer, Patna vide letter

no. 3545, dated 18.10.2014, however, no action was taken on

the basis of letter no. 3545, dated 18.10.2014 by the Finance

Department, Government of Bihar and after retirement of the

petitioner, the Authorities have illegally proceeded to recover

from the pension and gratuity of the petitioner after lapse of

about 8 years. On the above admitted facts, learned counsel

submitted that the action taken on account of time bound

promotion granted to the petitioner merely after 29 years is

without authority of law. The petitioner was not responsible in

any manner for withdrawing more salary on account of any

account of incorrect fixation of pay scale, which has been

admitted by the respondents. The petitioner has not

misappropriated or misrepresented or committed any fraud. He

further submitted that in this regard, the law is well settled by

the Apex Court in the case of Amresh Kumar Singh & Ors. Vs.

The State of Bihar & Ors. reported in (2023) SCC OnLine SC

496.

4. Learned counsel appearing on behalf of State

submitted that the pension of the petitioner was fixed on

incorrect pay scale, which was detected in the way back in the

year 2014. However, the action of recovery of excess amount, Patna High Court CWJC No.6982 of 2023 dt.18-08-2023

which has been paid to the petitioner due to incorrect fixation

has made after lapse of 29 years.

5. Having considered the rival submissions made

on behalf of the parties as well as the fact that petitioner was

granted financial upgradation of time bound promotion ACP and

MACP even incorrectly no recovery can be made from the

pension of the petitioner after lapse of nearly 29 years, as

informed by the learned counsel appearing on behalf of the

petitioner. It is admitted from the pleadings made in the counter

affidavit that in the year 2014, the Department of Industries had

found that the petitioner has been granted higher pay scale from

time to time and ultimately superannuated on 31.08.2020 and it

is also admitted that the salary of the petitioner was fixed on the

enhanced pay, however, no action was taken during the service

period of the petitioner.

6. It has been admitted in paragraph No. 8 of

counter affidavit filed on behalf of respondents No. 2 and 3 that

the last pay drawn by the petitioner is Rs. 85,100/-, accordingly,

the pension of the petitioner has been fixed Rs. 42,550/- any

recovery made from the pensionary benefit after lapse of more

than two decades is not sustainable in the eye of law as well as

law laid down by the Apex Court. The petitioner has not Patna High Court CWJC No.6982 of 2023 dt.18-08-2023

misrepresented or misappropriated any fund on his own.

However, the Authorities have admitted that the same has been

granted on account of incorrect fixation of pay scale. The State

cannot penalize the petitioner by realizing from the pensionary

benefit of the petitioner. The petitioner, if so advised, may file a

detailed representation before the concerned authority, who will

decide to take steps to make payment of retiral dues in

accordance with law and in the meantime return the amount

which has been recovered from the pension of the petitioner.

7. With the above observations and directions, the

writ petition stands disposed of.

                                                 (Purnendu Singh, J)
Manish/- minu
AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          22.08.2023
Transmission Date       N.A