u^ IN THE I? o 5 STKTB J'^MISISTRXPIVE a?KlBUBr PRX :IP^ BENCH AT JAB PUR 0.A,sr0^^8^)P 1997 BS@ISS' !!" Moti Ii^li A@:cawal S/o La-t^ ehuragil®tAcfrawal,»^aged46. Dhamtayi district Raipur (MP) r working as •Upper Division glerle, GoveriyneQt:;3aalEe ibu <^h6te^al-3hr^vastava P@st Grs<^at^ Giolteg^^^^^^.^^ ipp.LiG^'r. • D 2. 3* The Stat^ of Mad^ Secr^fcary department o£,H Vallabh/BI'iawany, BHQPN-i.' . 1', - . . .''••:'1 .' '. • • ' -' , .Principal •, : %ri ,Babu3£at&.Cbhoti0! al :Shrivastava'.,: Post Graduate Cpllege^ E?hacrfcai?i dtst^iet^RQiptir^- Jotnt Director,,, Tre.asur-y arid Accbunts* Raipur» RSSPONDENTS :Bi? w 1 \^i- PARTICULARS OF TH3 .&PPLX; ATION i '» t< -A ^ ^ .,J ^. H!GH_OOURT QF CHHATTISGARH : BILASPUR PETtTIONER RESPONDENTS WfrilT PETSTION(S) N0.1755 OF 2005 MotE LaS Agrawal Versus The State of Madhya Pradesh & Others Slngle Q•ench : Hon'ble Shri Satish K. Agnihotri, J* Present:- Shri H.^. Patei, Advocatefor thepetitioner. Shri A.^.: Sridhar, Panel Lawyer for the State. (ORAU (Passed on this 11th day of February, 2011) 1. Heard learned counseE for the parties. 2. Bythis petltion, the petitionerseeks'to ohalienge the legaiity and vslidity of the' order dated 08-09-1997 (Annexure A/16) by whlch it was directed to recover an amount of'Rs.64,127/- from thesalary of the petltioner from the month of September, 1997 paid in October, 1997in24installments. 3. initialiy the ;petitioner ".filed .an appilcation before the . State Administrative Tribunal (for short "the TribunsH on 27-^-1997 being O.A.No.2896 of 1997 challenging the above-statsd order. On dissolution of the Tribunai as well as bifurcation of the State of IViadhya Pradesh on creation of" Chhattisgarh, the case was transferred to this Court and re-numbered as W.P.(S) No. 1755 of 2005. 4. Learned counsel appearing for the petitioner submits that by order dated 01-01-1.975.(Annexure A/1), the petitloner was appolnted as typist-cum-cierk in Dhamtan Coliege. The petitioner was having training of-Hindi and English typing certificate, as Is evldent from Annexure A/2. Thereafter, on 20/21-4-1982 (Annexure A/3), the said college was taken over. by the Government Subs'equently, the servlces of the petitloner was absorbed ¥^ith a conditlon that he shouid pass Hindi fypjng exaiiiination wlthin two years. • According to the petltionervthe sald condition was not entered in the semce book of the petltloner. 5. By order dated 18-09-1991 (Annexure A/7), the department of Higher Education ordered that the services of the petltioner was more than35iyears, therefore, the petitioner is exempted from passing the Hindi typing examinatiorL In view of the order 18/08/1993 (Annexure A/9), the nanip ofthe petltioner was jnduded \,. -x' '^J -.^ ^. 4o jn the.gradatibn llst of LDC and thereafter,, he was promoted tottie postofUDC. During.the verificatEonof pay scale of the •petjtioner, certaln objectjions were raised with regard to pay fixation of;the petitioner. Fpr which, the •petitioner made representations to^the respondent authorities< Without • considering ;the representation subrrsitted byJthe petltJoner and without consideri.ng the exemption granted to the petitioner by -the Govemment 18-08-1i991 (Annexure N^), the impugned recovery orderdated 08-09-1997 (Annexure A/|1S) was passed in an lEEegai and; arbitrary manner. Thus, this petltion. . • S. . Learned counsei for the petitioner submlts that there is no fault on the part of the petltioner. He has not made any misrepresentation and the annua! increments as weli as.promotEons have been granted to hlm In accordance with the orders passed by the competent authority. 7. Theimpugned order of recovery is bad in iaw, iltega! and contraiy to the well settted principles of law. The reason assigned for recovery is not sustalnabie, 'as there was no fauit on the part or the petitioner. The respondents cannot recover the ajrsount a!ready paid to the petitloner, for no fault of the employee, who has not made any misrepresentation or misled to the employer. 8. - On the otherhand, Eearned counsei appearing for the S'tete submlts that the condition of absorption was to pass typsng test wlthin a period of tv/o years. The petitioner could not pass the test within the spedfied time of two years tlli he was allowed to continue. Thereafter, the impugned order of recovery on the ground of excess payment was passed. .9. . Having heard learned'counsei appearing for the parties and havlng -perused the pteadings and documents appended thereto, the question arises for conslderation .before this Court is, asto whether .once benefjt of:annuai increments was granted to the petitioner, for no fault of the petitloner, can be withdrawn subsequentJy by 'executive instructions. The Supreme Coyrt whlEe considering the identical issue observed that a judicial decision cannot be dlrectiy overruied or reversed, even by the iegislatyre. The executlve instructlons, 1n no vvay, can reyerse or override ajudiciaE decision. in the present case, the petitioner was granted benefit pursuant to the orders passed by the respondent authoritEes, ..V \iP/. ! 10. 1.1, 12. 13. The respond^nt authoritEes have not foilowed i the prindpSes of natural' justic^ and the Impugned actfon has been taken withoyt affording an ^pportun-sty of hearing to the petjtjoner. The practice of passlng; ordesf, Involving dvil consequences, • without show cause ndtlce or with^ut affording an opportunity of hearing.is condemned, • TSte questiori opportunsty'ofj -of wsthdrawai of benefits. without affordlngl an ihearing' is no Eonger res integra.The'Supreme Gourt in 'the matter of $ahib Ram Vs.-State of Haryana and others, In. para 5 heid, as under): • .. , ~ . . . . : .' .| "5. However, it §s not on account of ;any j|nlsrepresentatlon made .by ; the. appellant that the benefit of higher pay scale was given to him but by wrong co-nsfruction. made by the Prlndpal for •which the appeliant cannot' be heid to be at fauSt. Under the circumstances, the amount paicl tii! date may not be recovered from the appelEant." The Supreme Court in :the matter of P^TuIsidas and other Vs. Government 6f A.P. and others2, observed that the beneflt accrued earSier by wayi of grant of higher pay or revised pay, cannot be awav as the same is violative of Article 14.& 16 of the Constitution- of India being arbltrar/, unreasonable and expropnatory.. In an Identicai issue, asto whether'recQvery of'.excess payment for no fauit of the empjoyee" can be made without foijowlng the principles of natural justice, the Supreme Court in SyedAbdul QadirBndother^ y^ StateofBiharand-other^, havirig consldered a!l the aspects'of the matter and the dedsions rendered &y the Supreme-Court Jn the past, obser^ed as.under: SS57. This Cous9t, In a catena of . - .decjslons, has granted re!ief against recovery of excess payment of emojuments/ allowances if (a) the excess amount was. n-ot paid on account of any misrepresentation' or fraud on the.part of the eniployee, and. • (b^ Ifsuch excess payment was made by -the employer by appjylrsg..a wrong. prindpie for • calcuiating the '•pay/ailowance' or on 'lhe. basls of a' parSicuJar. Interpretation of ruie/order, whlch is subsequently found to be erroneous. . '••• . l(1995Supp(l)SCC20) 3 (2009) 3 8CC 475 c •i J^. 14. 15. ^8. The re!ief agalnst recovery • is gl-anted by courts not because of any ri^ht in the emptoyees, but In equity, '. : - exercising judlciaS discretion to relieve t^e employees from the hardship that w|i(j be caused if recovery is ordered. But if jn a given case, it |s proved that the empioyee had knowiedge that the p^yment received was in excess of what was due or wrongly paid, or In c^ses where the error is detected OT corrected within a shorttinne ofwrong . payment, the matter belng In the realrrs ofi judidaE discretion, coyrts may, on' th'e facts and clrcumstances ' of any particyiar case, order for recovery of the amount paid in e^ess; See Sahib R&m v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v.i M, Bhaskar, V, Gangaram v, Dir©ctor, Col. BJ.Akkara (Retd.) v. Govt. of india, Purshottam Lal Das v, State of Bihar, Puniab National Bank v.: Vanjeet Singh and Blhar SEB v. • Bijay Bhadur." A common thread ?:unning into the above declsions of the Supreme Couri: is that, for recovery of excess payrnent of emoluments/alSowances, there are three conditions whereln the excess payment may be recovered, namely (i) excess payment was made on account of misrepresentation or fraud cn the part of. the empioyee, (ii) the empioyee had knowtedge that the payment received was in'excess^ and (iii) the error'was corrected vrithin a short span of tlme ofwrong payment. In the case on hand, the afore- stated three conditlons are not avallable to the empioyer to pass the Impugned orders dated 08-09-1997 (Annexure A/16). In vjei¥ of the foregolng, the impugned order 08-09-1997 .(Annexure A-16) is quashed arsd the writ petltlon is allowed to the above extent. Sd/- SatishK.Agnihotri Judge Gowri