- (1.) THE present writ petition has been preferred for the issuance of an appropriate writ, order, direction in the nature of mandamus directing and commanding upon the concerned respondent to refund back the excess money amounting to Rs.64,470/ -which has deducted by the Treasury Office, Ranchi instead of amount of Rs.3070/ -. Further the respondent be directed to pay the Assured Career Promotion (A.C.P.) and fix the pension on the revised pay scale and enhance the scale along with interest @ 18% on the entire dues who retired as a Constable with effect from 31.1.2000.
(2.) THE facts in brief are set out as under: The petitioner was a constable in Police Department and retired with effect from 31.1.2000 and his pension was fixed at Rs.5464/ -. However, with effect from 1.2.2000 he got provisional pension for an amount of Rs.3743/ -. An order was passed by the Accounts officer as per report of Accountant General to deduct the excess amount of Rs. 3070/ -. Thereafter, Treasury Officer, Ranchi deducted Rs.3070/ -for 21 months in total Rs. 64470/ -from the pension of the petitioner. Petitioner being constrained preferred a representation to the S.P., Dhanbad and he vide his letter no. 556 dated 17.4.2007 informed the Treasury Officer that the said deduction was improper and illegal. The S.P., Dhanbad again vide his letter no. 1289 dated 7.8.2007 wrote to the Treasury Officer to assign the reason and to give the detail about deduction. Thereafter, S.P., Dhanbad vide its order No.2921, dated 17.11.2006 corrected the pension of the petitioner and held that he was entitled to the salary of Rs.4800/ -. In the counter affidavit respondent no. 2 at para -4 have admitted the fact that the petitioner has been given the benefit of the A.C.P. vide order no. 2921 dated 17.11.2006 and the same has been sent for approval. It has further been stated in the counter affidavit that vide order no. 982 dated 12.9.2007 respondent no.3 has informed the respondent no.2 that the excess amount paid to the petitioner was to the extent of Rs.78603/ -and the same has been adjusted.
(3.) I have heard the argument and also gone through the pleadings. In view of the categorical statement that the order has been passed on 17.11.2006 as admitted in para 4 of the counter affidavit of respondent no.2 and the same has been sent to D.I.G., Budget for approval by the Home Commissioner for the benefits of A.C.P. which will be given to the petitioner and his pension will be based on the revised pay scale. As regards adjustment of Rs.78603/ -that also after retirement and without even giving any notice or show cause to the petitioner is on the face of it illegal and unsustainable. Even otherwise there is no statement that the excess payment was made by the respondent no.6 on any misrepresentation and/or due to any fault of the petitioner and thus, he cannot be punished for the same after retirement. The law in this regard has been time and again settled by Hon'ble Supreme Court as well as Full Bench of this Court reported in 2007 (4) JLJR 459 ( Laxman Prasad Gupta V/s. The State of Jharkhand and Ors.) and this issue is no more res -integra and at para 20 it is quoted as under: "20. In view of the above discussion, we come to the following conclusion. To sum up: "In the light of the absence of any material to show that the excess amount was received by the petitioner on misrepresentation, collusion, fraud or negligence, the said excess amount cannot be recovered out of the retiral dues, after retirement, without following the procedure contemplated under Rule 43(b) of the Bihar Pension Rules . In this case the said procedure, which is mandatory, has not been followed. Therefore, the action of the respondents for recovery of the amount from the retiral dues is not valid in law." ;