ORDER
M.Y. Eqbal, J.
1. Heard the parties.
2. In this writ application the petitioner has prayed for quashing the letter under Memo No. 1669 dated 11.12.2000 whereby the respondents have decided to recover Rs. 64.175 = 75 from the Gratuity amount of the petitioner. The petitioner was appointed as Meter Reader in the year 1962 and was transferred to Accounts Department in 1965. In 1984 he was promoted to the post of Accountant. After serving about 36 years, petitioner retired on 31.12.1998. During the period of service, petitioner was allowed increments and other pay benefits. It was only after retirement respondents by the impugned letter dated 11.12.2000 decided to recover Rs. 64,175 = 75 from the Gratuity amount of the petitioner on the ground that he was allowed increments although he did not pass Hindi Noting and Drafting Examination.
3. A counter-affidavit has been filed by the respondent-Board stating inter alia that during the service period petitioner was time to time allowed increments although he did not pass Hindi Noting and Drafting Examination. It was only in 1991 petitioner passed Hindi Noting and Drafting Examination and therefore excess amount drawn by the petitioner prior to 1991 is liable to be deducted/ adjusted.
4. From perusal of the affidavits, it appears that respondents have not made out a case that by concealment of fact or by misrepresentation the petitioner was allowed increments rather respondents on its own allowed increments before 1991 although petitioner did not pass Hindi Noting and drafting Examination. This Court in similar facts and circumstances of the case quashed such order of recovery issued by respondent/ Board against other employees.
5. Reference may be made to the order passed in CWJC No. 2620/95R. 1674/97R and 1656/96R. Learned counsel for the Board put reliance on the judgment of the Apex Court passed in Civil Appeal No. 6914/1999, arising out of SLP (C) No. 7119 of 1999 and submitted that respondent-Board is entitled to deduct the excess amount paid to the employee by way of increments out of the Gratuity or other retiral dues. For better appreciation the relevant portion of the Supreme Court Judgment is quoted herein below :
“Admittedly, the writ petitioners have been allowed annual increments even
without passing the Hindi Noting and Drafting Examination which according to Mr. Pramod Swarup, learned Advocate appearing for the appellant-Board has become a condition precedent and part of their service conditions and question of there being any entitlement de hors the same does not cannot arise. Mr. Swarup, contended that Rule 8 is rather categorical on this score as to the date of entitlement and since its deemed effect as a part of the condition of service if the appellant-Board is within its authority and jurisdiction to deduct the amounts paid. In short, the submission of Sri Swarup 011 behalf of the appellant board is that since the writ petitioners are not entitled to receive any increment, question of retention of the amounts paid whether by mistake of fact or otherwise does not and cannot arise. We, however, are not in a position to lend any credence to the same by reason of the fact that while the increments granted have been sought to be recovered but promotions given have not been withdrawn or cancelled, the Board being the Governmental Agency and fairness being the only accepted methodology cannot maintain a dual standard on the basis of self same regulation.”
Their Lordships further observed that:
“The High Court also relied on the un-reported decision of the learned single Judge in the case of Saheed Kumar Banerjee v. Bihar State Electricity Board (CWJC No. 710/94 : disposed of on 17.1.1995). We do record our concurrence with the observations of this Court in Sahib Ram’s case and come to a conclusion that since payments have been made without any representation or a misrepresentation 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 act or acts on the part of the appellant-Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice. Concept of fairness has been given a goby. As such the actions initiated for recovery cannot be sustained under any circumstances. This order however be restricted to the facts of the present writ petitioners. It is clarified that Rule 8 will
operate on its own and the Board will be at liberty to take appropriate steps in accordance with law except however in the case or cases which has/have attained finality.”
6. As noticed above, there was no misrepresentation or concealment of fact by the petitioner in order to get increments before 1991. Petitioner admittedly passed Hindi Noting and Drafting Examination in 1991 and he was allowed increments till the date of retirement upto 31.12.1998. During the period of service, the respondent-Board never raised any objection to the grant of increments for the period prior to 1991. In that view of the matter the action of the respondents-Board to recover the amount paid to the petitioner by way of increments prior to 1991, out of gratuity amount is not justified.
7. This writ application is therefore al
lowed and the impugned order as contained
under Memo No. 1669, dated 11.12.2000 is
quashed. It is held that petitioner is entitled
to all the retiral dues legally payable to him
in accordance with law.
8. Petition allowed.