Md. Siddique vs The Bihar State Electricity Board and Others

Radha Mohan Pd, J.—In this writ petition the Petitioner is aggrieved by recovery of the alleged excess amount drawn by him, vide Annexure-A/2, on account of erroneous fixation of pay on his promotion and has sought for direction to fix his pension on last pay drawn, in view of Board''s Standing Order No. 125 dated 7.5.1983.

Learned Counsel for the Board, on the other hand, submitted that the Petitioner cannot avail the benefit of his promotion granted in the year 1977 under Standing Order No. 125. In fact at the relevant time the case of the Petitioner will be governed by Standing Order No. 515 dated 7.5.1976 (Annexure-2) which provided that "where promotional avenues are available, double benefit in fixation of pay shall not be allowed". It further provided that "deduction from the salary of those workmen who have already been benefited twice in the matter of pay fixation, i.e. once in the selection grade and in promotion shall be waived immediately, in 12 equal instalments or at the rate of Rs. 60/- per month which ever will effect the recovery earlier."

This Court finds substance in the submission of the learned Counsel for the Board. At the time of grant of benefit in the year 1977 Board''s Standing Order No. 125 was not even in existence. Learned Counsel for the Petitioner has failed to show that the said standing order has been given effect to from the retrospective date. On the contrary Mr. Datta, learned Counsel appearing for the Board, has referred to clarification bearing No. 524/EB dated 2.8.1985, contained in Annexure A/2, whereby it was clarified that the Board''s Standing Order No. 125 dated 7.5.1983 has effect from the date of its issue, i.e. 7.5.1983 and there is nothing ambiguous in it. Further, request was made to see that fixation of pay made in pursuance of Boards Standing Order No. 125 dated 7.5.1983,if any, is contrary to the clarification and the same should be reviewed/revised suitably under intimation to the Board.

Accordingly, this Court holds that there is nothing wrong in fixation of pension pursuant to Annexure-A/2.

Learned Counsel for the Petitioner has, however, contended that in any view of the matter recovery of the amount pursuant to Annexure-A/2 is not permissible as it is not a case of the Board that the said fixation was done on misrepresentation or fraud committed by the Petitioner. Learned Counsel for the Petitioner in support of the said contention besides relying upon the decision of the Apex Court in the case of Sahib Ram v. State of Haryana reported in 1995 Suppl. (1) SCC 18, and in the case of V. Gangaram Vs. Regional Joint Director and others, has also relied upon the Division Bench decision of this Court in the case of The Collector of Central Excise, Meerut Vs. Kapri International (P) Ltd.,

Learned Counsel for the Board, on the other hand, has submitted that recovery has been upheld by the Division Bench in the case of Bihar State Electricity Board and Anr. v. Ram Gati Singh and Ors. (L.P.A. No. 86/2002) disposed of on 9.7.2002, the validity of which was challenged on Petition for Special Leave in Appeal (Civil) No. 17929/2002 and the SLP was dismissed by the Apex Court.

Learned Counsel for the Petitioner however, has submitted that on filing of the review application the Apex Court has issued notice to the Board and the matter still pending consideration by the Apex Court. The order passed by the Division Bench in L.P.A. No. 86/2002 is of later date, i.e., 9.7.2002 whereas the order of the Division Bench relied upon by the learned Counsel for the Petitioner is of prior date, i.e. 13.5.2002. The later Division Bench has not taken notice of order passed by the earlier Division Bench in the case of S.S.E.B. v. Jagdeo Singh in which while upholding the order of the learned Single judge it has been held that "High Court should not come to the rescue of the Board to make deductions and let the official who was a ready party in the irregularities walk without being questioned". According to settled law on precedence, if later decision of the Division Bench has not taken notice at the earlier decision of the Division Bench when principle decided by the earlier Division Bench is binding. Further, this Court finds that under similar circumstances recovery sought to be made by the Respondent Board on account of erroneous grant of increments without passing Hindi Noting and Drafting Examination was held not permissible by a division Bench of this Court and the Apex Court dismissed the appeal against the Division Bench judgment in the case of Bijay Bahadur v. Bihar State Electricity Board and Ors., bearing Civil Appeal No. 6913/99. While discussing the appeal the Apex Court recorded the concurrence with the observation made in the Sahib Ram''s case and came to a conclusion that since payments have been made without any representation or a miss-presentation, Appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The Apex Court further directed that the act or its on the part of the Appellant Board cannot under any circumstances be said to be in consonance with enquiry, good conveyance and justice and further that con(sic) of fairness has been given a go-by and as such, the actions initiated for recovery was held to be not sustainable under any circumstances.

It appears that the later Division Bench has not taken notice of the decision of the Apex Court in the case of Sahib Ram (supra) and the order passed by the Apex Court in the case of Bihar State Electricity Board v. Bijay Bahadur has also not been brought to its notice:

Thus, in my opinion, under the above circumstances, recovery of the alleged excess payment vide Annexure A/2 is not sustainable.

Learned Counsel for the Petitioners has submitted that there is no answer to the claim of the Petitioners for payment of G.P.F. in the counter affidavit filed on behalf of the Board. Learned Counsel for the Board has fairly submitted that the amount of G.P.F., if not paid, shall be paid with up-to-date statutory interest without any delay.

The writ application is, thus, allowed in part. The Respondent Board is directed to pay remaining amount of gratuity accordingly and the amount of G.P.F. with up-to-date statutory interest, if not already paid, within one week, failing which the Financial Controller shall be liable to pay a cost of Rs. 1,000/- from his pocket and the Petitioner will be at liberty to file two pages affidavit for revival and for taking appropriate action.