Chaya Devi vs The State Of Bihar
2023 Latest Caselaw 4472 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.10312 of 2023
     ======================================================

Chaya Devi Wife of Late Bibhuti Mandal Resident of Village- Baskichak, Police Station- Dumka Muffasil, District- Dumka, Jharkhand, PIN- 814119.

... ... Petitioner/s Versus

1. The State of Bihar through Chief Secretary, Government of Bihar, Patna.

2. The Chief Secretary, Government of Bihar, Patna.

3. The Secretary, Minority Welfare Department, Government of Bihar, Patna.

4. The Managing Director, Bihar State Minority Finance Corporation Limited (Bihar Rajya Alpsankhyak Vitt Nigam Limited), 34, Harding Road, Ali Imam Path, Patna- 800001.

5. The In-Charge (Establishment), Bihar State Minority Finance Corporation Limited (Bihar Rajya Alpsankhyak Vitt Nigam Limited), 34, Harding Road, Ali Imam Path, Patna- 800001.

6. The Employees Provident Fund Organisation, Bhavishyanidhi Bhawan, R Block, Road No. 6, Serpentine Road, Near M.L.A. Flats, Patna, Bihar- 800001. ... ... Respondent/s

====================================================== Appearance :

For the Petitioner/s : Mr.Gopal Govind Mishra, Advocate For the Respondent/s : Mr.Anirban Kundu (SC 24) ====================================================== CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT Date : 11-09-2023 Heard learned counsel for the parties.

2. The husband of the petitioner, namely, Bibhuti

Mandal, was appointed on the post of Driver in Bihar State

Minority Financial Corporation Limited (hereinafter to be referred

as the 'BSMFCL') on 20.12.1989, who died in harness on

03.09.2020.

3. Petitioner is aggrieved for recovery of Rs.1,86,415/-

and has sought for quashing of memo bearing no.144 dated

25.01.2021 (Annexure - '2'), through which the husband of the Patna High Court CWJC No.10312 of 2023 dt.11-09-2023

petitioner had been communicated that due to incorrect fixation of

pay, Rs.1,86,415/- has been recovered. Annexure '2' is the

communication dated 25.01.2021 with respect to recovery of

Rs.1,86,415/- whereas the husband of the petitioner had died in

harness on 03.09.2020.

4. Learned counsel for the State has relied on Annexure

'R4/1' of the counter affidavit bearing memo no.1936 dated

18.12.2019, whereby the order of recovery of excess amount from

the salary of the husband of the petitioner in instalment at the rate

of Rs.20,000/- per months was passed.

5. Learned counsel for the 'BSMFCL' has drawn

attention towards Annexure 'R4/2' of the counter affidavit and

submitted that the husband of the petitioner during his life time

had admitted the fact that the excess amount has been paid to him

and the deduction amount should be reduced to Rs.15,000/- per

month from his salary in place of Rs.20,000/- per month. In this

regard, the husband of the petitioner had made communication,

vide application dated 19.12.2019 kept as Annexure 'R4/2' to the

counter affidavit.

6. Learned counsel for the State further submits that on

account of incorrect fixation of pay scale, recovery has been

justified by the Hon'ble Apex Court in the case of State of Punjab

& Ors. Vs. Rafiq Masih reported in AIR 2015 SC 696, Syed Patna High Court CWJC No.10312 of 2023 dt.11-09-2023

Abdul Qadir Vs. State of Bihar reported in (2009) 3 SCC 475,

Col. B.J. Akkara Vs. Government of India reported in (2006)

11 SCC 709 and Chandi Prasad Uniyal & Ors. Vs. State of

Uttarakhand & Ors. reported in (2012) 8 SCC 417.

7. Learned counsel appearing on behalf of the petitioner

submits that the petitioner is widow and her husband had died in

harness as Class IV grade employee, who was not aware of the

legal pronouncement and law laid down by the Hon'ble Apex

Court. Learned counsel has clarified that so far as State of Punjab

& Ors. Vs. Rafiq Masih (supra) and Col. B.J. Akkara Vs.

Government of India (supra) are concerned, the Hon'ble Apex

Court has already held that the pension is not a bounty rather a

constitutional right as contained in Article 300(A) of the

Constitution of India. He further submits that so far as Syed Abdul

Qadir Vs. State of Bihar (supra) is concerned, it relates to a

government servant posted on a gazetted post and in the same, the

Hon'ble Apex Court has clarified that knowingly the gazetted

employee had not made clarification with respect to excess

payment on account of fixation of salary made by him, being

drawing and disbursing officer himself, the realization on account

of excess payment was held to be justified by the Hon'ble Apex

Court. So far as the present case is concerned, the deceased

employee was a Class IV employee and the recovery can not made Patna High Court CWJC No.10312 of 2023 dt.11-09-2023

in the light of State of Punjab & Ors. Vs. Rafiq Masih (supra)

and in any case, excess payment was made on account of incorrect

fixation of salary by giving financial upgradation, the same could

not amount to be promotion but on account of stagnation by giving

the benefit of financal upgradatoin of the salary. Learned counsel

has further relied on a recent judgment of the Hon'ble Apex Court

passed in the case of Amresh Kumar Singh & Ors. Vs. The

State of Bihar & Ors. reported in 2003 SCC Online SC 496.

8. Recently the Hon'ble Apex Court in the case of

Amresh Kumar Singh & Ors. Vs. State of Bihar & Ors. (supra)

has clarified that the financial upgradation will not amount to be

promotion. As such, on account of stagnation of an employee

(husband of the petitioner) on Class IV post as Driver, no recovery

can be made from the petitioner, who is a widow.

9. Considering the rival submissions made on behalf of

the parties as well as the statements made in the counter affidavit,

it is admitted that the husband of the petitioner had died in harness

while he was posted on the post of Driver as Class IV employee.

Petitioner is widow and she is an illiterate lady and any recovery

on account of excess payment made to the husband of the

petitioner during his service period (till his death) can not affect

the family pension. Accordingly, Annexure '2' bearing Memo Patna High Court CWJC No.10312 of 2023 dt.11-09-2023

no.144 dated 25.01.2021 and the consequential communications

are quashed.

10. The Regional Director, Employee's Provident Fund,

Patna is directed to make payment of employees provident fund

amount to the petitioner and for this purpose, he may make

communication with the Managing Director of the 'BSMFCL' for

facilitating payment of EPF amount to the widow of the deceased

employee (petitioner). If the Regional Director, E.P.F., Patna finds

that the certain paraphernalia like filling up of the forms by the

petitioner is required, the same can be done at the level of the

'BSMFCL' and the Regional Director, E.P.F., Patna within a period

of three weeks from the date of passing of this order. Both

authorities are required to recruit a competent person to get the

formalities done on behalf of the petitioner, who is widow and an

illiterate lady.

11. With the above observation/direction, the present

writ petition is disposed of.

(Purnendu Singh, J) chn/-

AFR/NAFR
CAV DATE
Uploading Date            14.09.2023
Transmission Date