Ww mw rmr: I 632/ IN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR w.P.(S) No, Q W [2009 (s3) PETITIONER 2 Smt. Jema Bai, Wd/o Late Hari Ram Sahu, aged about 60 years, R/o Kostapara, Raigarh, Distt. — Raigarh (C.G.) VERSUS RESPONDENTS /_1. Joint Director Pension 8L Accounts, Bilaspur Division, Bilas‘pu'r, Distt.- Bilaspur (C.G.) Chief Medical Officer, Raigarh, Distt. -Raigarh (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE ONSTITUTION OF INDIA. PW / @0 J. HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 6131 of 2009 PETITIONER : Smt. Jema Bai. VERSUS RESPONDENTS :Joint Director, Pension & Accounts, Bilaspur Division & another. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon’ble Shri Satish K. Agnihotri, J. Present: Shri Manoj Jaiswal, Advocate for the petitioner. Shri P.K.Bhaduri, Panel Lawyer for the State/respondents. ORDER ORAL ' (Passed on 09‘ day of April, 2010) Challenge in this petition is to the order dated 29.01.2007 (Annexure P/2) . and the order dated 01.09.2009, whereby a sum of Rs. 59,247/- has been l, directed to be recovered from the petitioner from his retiral dues of the husband of the petitioner, holding it to be excess payment made to him. The facts, in nutshell, as projected by the petitioner are that the husband of the petitioner, While working as Accountant in the office of respondent No. V 2, retired on attaining the age of superannuation on 19.06.2006. Thereafter, on 20.06.2006, the husband of the petitioner expired. The petitioner received a communication dated 2901,2007 (Annexure P/l) whereby it was directed to recover a sum of Rs. 59,247/— holding it to be excess payment made to the husband of the petitioner during the course of this _ service. In the meantime, the petitioner received a communication from the respondent No. 2, dated 01.09.2009 (Annexure P/l) wherein it was stated that the application of the petitioner, for refund of the excess amount deducted by the authorities, was rejected. It was further mentioned in the said communication that the petitioner herself had given consent for deducting the said excess amount. Learned counsel ihrther submits that the issue asto whether recovery of excess payment for no fault of the employee can be made without following the principles of natural justice is no longer res integra. The same has been settled by Hon’ble Supreme Court in various decisions (See Syed Abdul Qadir and others v. State afBihar and othersl). This Court, relying on the above decisions has passed several orders, directing refund of the amount, if any, recovered nom the employees, where the employees were not given any opportunity to explain about the excess payment, if any, made to them. Shri Jaiswal further contends that any recovery from retiral dues can be made only in case if there was any misrepresentation or naud on the part of the employee and the employee had knowledge that the payment was received in excess. The error, if any, could have been corrected within a short span of time from wrong payment. 'Shri Roy, learned Panel Lawyer appearing for the State/respondents submits that excess payment was not made on account of any misrepresentation or fraud committed by the husband of the petitioner. Admittedly, this was a case of misconstruction of the provisions by wrong fixation of salary. He further submits that the similar order may be passed, subj ect to verification of facts. This Court, as well as Hon’ble Supreme Court, in a catena of decisions, time and again reiterated that no recovery of excess payment for no fault of the employee can be mad’elwithout following the principles of natural justice. This Court in Ramchandm Kurup v. State of CG. & othersz and 1 (2009) 3 SCC 475 \\ )No. 3663 of2009 \ g xL other connected matters, decided on 23rd N0vember, 2009, observed as under: 4 “19. A common thread running into the above decisions of the Supreme Court is that, for recovery of excess payment of emoluments/allowances, there are three conditions wherein the excess payment may be recovered, namely (i) excess payment was made. on account of misrepresentation or fraud on the part of the employee, (ii) the employee had knowledge that the payment received was in excess, and (iii) the error was corrected within a short span of time of wrong payment.........." In View of the forgoing, the impugned order dated 01'.09.2009 (Annexure P/l) and 29.01.2007 (Annexure P/2) whereby a sum of Rs. 59,247/- has been recovered hom the retiral dues of the husband of the petitioner, on account of excess payment, are hereby quashed. If the said amount has already been recovered, the same shall be refunded back to the petitioner. However, liberty is reserved to the State/respondents that if the excess payment has been made on account of misrepresentatiOn {or fraud on the part of the employee, or the employee had the knowledge that the payment received by his was in excess, fresh orders may be issued on verification of the facts, after affording opportunity of hearing to the petitioner. The writ petition is accordingly disposed of. No order asto costs. Sdl— Satish K. Agnihotri ’ Judge ‘