Shree Chandrashekhar, J. - (1.) Aggrieved Of Withholding Of Rs.2,05,090/ From gratuity payable to him, the petitioner seeks to challenge order dated 17.09.2005. By this order, claim for medical reimbursement of Rs.2,10,100/ has also been declined.
(2.) Briefly Stated, The Petitioner Who Was Appointed on 22.02.1965 under the respondentBihar State Electricity Board superannuated from service on 30.06.2003 from the post of Assistant Electrical Engineer, Electrical Central Store, Jamshedpur. After his superannuation from service when his postretiral benefits were not paid to him, the petitioner came to this Court in W.P.(S) No.6532 of 2003 which was disposed of by an order dated 06.01.2004 with a direction to the respondents to pay the postretiral dues which were already sanctioned, and with liberty to the petitioner to raise claim for any other pending dues. The petitioner again came to this Court in W.P.(S) No.6920 of 2005 which was referred for settlement before the Lok Adalat. By an order dated 07.04.2006 the respondents were directed to make payment to the petitioner on 07.05.2006 before the Lok Adalat. In the meantime, the petitioner initiated a proceeding under the Contempt of Courts Act, 1971 which was dropped, as the Writ Court's order was substantially complied with, however, a liberty was reserved with the petitioner to approach the appropriate forum for challenging illegal deduction from his gratuity.
(3.) The Payment Of Gratuity Act, 1972 Is A Special legislation. Except cases covered under subsection 6 to section 4 gratuity payable to the employee cannot be withheld; not even in execution of a decree passed by a civil, revenue or a criminal court. Section 14 provides that the provisions of the Payment of Gratuity Act, 1972 shall have overriding effect. Recovery of Rs.2,05,090/ from the gratuity payable to the petitioner is on the ground of excess payment made to the petitioner on account of wrong fixation of his scale of pay. On a query/communication from respondentJSEB, it is stated that the Bihar State Electricity Board vide letter dated 11.08.2003 furnished details of payfixation of the petitioner granting one annual increment every year from 1st July of the calendar year. Apparently, with reference to letter dated 11.08.2003 the respondents have concluded that the last pay drawn by the petitioner shall be Rs.13,350/ and not Rs.13,650/. Recovery allegedly for excess payment made to the petitioner cannot be affected on the basis of the letter dated 11.08.2003 and, that too, after his superannuation from service on 30.06.2003. In letter dated 11.08.2003 no basis for calculation on salary of the petitioner from 18.08.1997 has been given. On admitted facts, once it is found that the alleged loss suffered by the respondents on account of excess payment made to the petitioner is a disputed issue, no recovery resorting to subsection 6 to section 4 of the Payment of Gratuity Act, 1972 can be ordered. Accordingly, recovery of Rs.2,05,090/ from the gratuity payable to the petitioner is held illegal and accordingly, this amount shall be refunded to the petitioner within six weeks with interest @ 5% from the date it became payable to the petitioner (refer, section 7 of Payment of Gratuity Act). On fixation of pension on the basis of last pay drawn by the petitioner, in view of order of recovery found illegal, pension of the petitioner must be fixed @ Rs.13,650/ which was the last salary drawn by the petitioner.;