INE‘I-E VHIGH-COURTr-‘QF JUDICA‘I'URE AT JABALPW ’ 94.1%) W¥Pn NO ' ' of 1999 . ‘ (Un&er Articles 226 s; 22 stitution of India) ‘,; n gETITIomER' : Kanhaiya Singh Netam. agea about 49 years, son of-Shri Binu Ram Netanu by occupation - service. Project Ranger,‘ Bhanupratappur, District Kanker. VERSUS RESPONDEms a .1. Madhya Pradesh Rajya Van Vikas Nigam Ltd..* Malviya Nagar. Bhopal, through its Managing Directoro. 2. The Executive DirectOr.‘ Madhya Pradesh Rajya Van Vikas-Nigam Ltd.‘, Malviya Nagar, Bhopal. 3. The Manager. (Administration). Madhya Pradesh Rajya Van Vikas Nigam Ltda.’ Malviya Nagazy Bhopal; 4. The Divisional Manager, Antagarh‘ Project, Rn Bhaxmpratappur, District Kanker‘ PETITION-UWER VARTICLESL 225 &- 227, ICGNSTITUEION OF INDIA é HIGH COURT OF CHHA’ITISGARH : BILASPUR WRIT PETITION UNDER ARTICLE 226 8n 227 OF THE CONSTITUTION OF INDIA (SB: Hon’ble Shn’ Satish K. Agm'hotm' J.) Shri Patag Kotecha, Advocate for the petitioner. I None for the respondents, despite service of notice. ORDERmml) (Passed on this 9th day of March, 2010) Heard. 1. Challenge in this petition is to the order ‘dated 30.7.1998 (Annexure P/8), whereby the order granting two advance in‘cmments was cancelled and the recovery was directed and the order dated 15.1.1999 (Annexuxe P/ 10), dismissing the appeal, passed by the Appellate Authority, Brief facts, in nutshell, are that the petitioner was initially appointed as Field Assistant in the year 1978. The nomenclature of the post of Field Assistant was later on changed as Assistant Project Ranger. The petitioner successfully completed the training in the Foresters Training Center, Jagdalpur and got hrst position. A certincate to that ed‘ect was issued to him on 31.3.1989 (Annexure P/ 1). On the basis of his hrst rank in the training, the petitioner was sent for further training to Forest Rangers College, Balaghat. The petitioner successfully completed the higher training (Annexme P/ 2). Thereafter, the petitioner was promoted on the post of Forest'Ranger vide order dated 1.12.1992 and his salary was hxed by order dated 30. 12. 1992 (Annexure P/3). In the \ // / Writ Petiu'on No. 1742 of 1999 \/ Petitioner Kanhaiya Singh Netam Versus Respondents Madhya Pmdesh Rajya Van Vikas Nigam Ltd. 85 othexs mtion oxder datsd 30.12.1992 the petih'oner was granted two advance incmments for successfully completing the higher training of two yeaxs &om the Forest Rangers College, Balaghat. This order of granting two increments was in accordance with the circular dated 10.12.1972 (Annexure P/4). 3. ’I‘wo similarly situated persons namely Shri Anoop Datt Shukla and Shn' S. A. Khan were also granted two advance increments by order dated 10.2.1994 (Annexure P/5) and 27.7.1993 (Annexure P/ 6). One of the senior colleagues of the petitioner namely Shn' S. S.‘ Shandilya, raised an objection on the pay nxation of the petitioner, thus the matter was referred to the Manager (Administration), Bhopal by letter dated 9.3.1998 (Annexum P/ 7). By the impugmd order dated 30.7. 1998 (Annexure P/8) the grant of two' advance increment was rejected with a further direction to recover the amount paid towards the same horn the petitioner. Being aggrieved . the petitioner died an appeal on 8.9.1998 (Annexure P/9) to the Chairman, which was dismissed by the second impugned order dated 15. 1. 1999 (Annexure P/ 10). Learned counsel appearing for the petitioner submits that the impugned order has been passed without adordiug an opportunity of hearing to the petitioner. It is a case of gross violation of the principles of natural justice. The impugied order is puniu've in nature and visits with civil consequence as not only the increments have been reduced but the amount of increments granted to the petitioner has been directed to be recovered, without anbrding an opportunity of hearing to the petitioner. There is no fault on the part of the petitioner. He has not made any misrepresentation and the increments were granted to him in “3/ accordance with the circular of the State Governmcnt dated 18th Septcmber, 1973 (Annexure P/4). The respondents have hled their return on 28.6. 1999, stating that the services of the employees working in Forest Development _ Corporation are regulated by the Madhya Pradesh Van Vikas Nigam Employees Service Regulation 1984. Regulat'on 67 gives power only to the Board ‘to gmnt advance increment to any of the employee of the Comoration. The Divisional Manager, Bhanupratappur Project, who had issued the order dated 30.12.1992, granting two advance increments to the petitioner, was having no authority to sanction such increments. There is no averments in the return with regard to grant of any opportunity of hearing or issue of show cause notice before the impugned order dated 30.7.1998 was passed. According to the return the increments were granted by misinterpreting the provisions as the same was not applicable to the employees of the respondent] Corporation, therefore grant of increment was without jurisdiction and the same was Withdrawn. On the question of principles ofnatural justice, there is no response in the return. I have heard learned counsel appearing for the petitioner and perused the pleadings and documents appended thereto. The circular dated 18¢ September, 1973 (Annexme P/4), issued by the State Government reads as follows " ad?! 311W ail m mmzswz‘wwnmm257-s5ewe(3)nanny? —72W1o—12—72#%am$a1w#m¥mm mummemm'mmtwmdwmem Wmummwwmwvawwd iagmetmdatwmmumanetadahmmm ,_;,/ éa gq W 3a? 230-10—350—12—2—400 g ii - 20—430 $ W I¥Eosoo—ooa%éawmammé Inmahaéaaqi? $m€tmm I”. 9. The impugned Oldcr dated 30.7.1998, Withdrawing bene t of two ¥ advance increments, granted earlier, is bad in law, illcgal and the recovety thereof is contrary to vaxious judicial pronouncements of the Supreme Court as well as of this Court. There was no fault on the part of the petitioner. The respondents cannot recover the amount, already paid to the petitioner, for no fault of the employee, who has not made any misrepresentaijon or misled to ‘ the employer, Without ah'ording an opportunity of hearing. V 10. The respondent-authorities have not followed‘ the principles of natural justice and the impugned action has been taken without ad‘ording an opportunity of hearing to the petitioner. The practice of passing order, involving civil consequences, without show cause notice or without adording an opportunity, is condemned.(See Sahib Ram Vs. State of Haryana and othersl) 11. The Hon’ble Supreme Court in the matter of P. Tulsidas and others Vs. Government of A.P. and others“, observed that the benent accrued earlier by way of grant of higher pay or revised pay, cannot be taken away as the same is violative of Article 14 and 16 of the Constitution of India being arbitrary, unreasonable and expropriatory. 12. In a similar issue, asto whether recovery of excess payment for no fault of the employee can be made without following the principles of natural just’ce, Hon’ble Supreme Court in Syed Abdul Qadir 1 { 1995 Supp (1) soc 20} \n \ 2 {A.1.R. 2003 sc 43} \ —(/ and others vs. State of Bihar and others3, having considered all the aspects of the matter and the decisions rendered by the Supreme Court in the past, obselved as under: “57. This Court, in a catena of decisions, has granted relief against recovery‘of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a Wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees horn the hardship that will be caused if recovery is ordered. But, if in a given / case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases Where the error is detected or corrected within a short time ofwrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, ‘Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar, V. Gangaram v. Director, Col. B.J.Akkara (Retd.) v. Govt. oflndia, Purshottam Lal Das v. State of Biliar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur." 13. In View of the foregoing, the impugned orders dated 30.7.1998 (Annexure P/8) and 15.1.1999 (Annexure P/ 10) are quashed. The petition is allowed with all consequenn'al benents. If the recovery is already made the same shall be refunded to the petitioner with interest at the rate of 6% per annnm. No order asto costs. 14. Having regard to the facts situation, liberty is reserved to the respondents to take action, if so advised, in accordance with law, after ah‘ording an opportunity of hearing to the petitioner. ‘ ”mfg? Sdl- Satish K. Agnihotri Judge 3 (2009) 3 soc 475