o ^ , vv •l IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR W. P. (Sl No. OF 2009. PETITIONER / Tirtho Sai, S/o. late Shri Jairam Sai, aged about 65 years, retired Peon, R/o. Village and Post Lawakera, (Beldipa), Block and Tahsil Pharsabahar, District Jashpur (C. G.). VE RS U S '<sft°l" RESPONDENTS ^-\^ . "SS^tft^ ;;v ';"';•y^^^. : 1. State of Chhattisgarh, Through : The Secretary, Tribal Welfare Department, D.K.S. Bhawan, Raipur (C. G.) Joint Director, Treasury Account 85 Pension, Bilaspur, District Bilaspur (C. G.) Treasury Account 85 Pension, BUaspur, District Bilaspur (C. G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA ^•Ma-u±_i3LSlJLLEullerirL .// €,^^° v J ' HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 7076 of2009 PETITIONER RESPONDENTS Tirtho Sai. VERSUS State ofChhattisgarh & Others. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble^hri Satish K. Asnihotri, J. Present: Shri Somkant Verma, Advocate for the petitioner. Shri A.V.Shridhar, Panel Lawyer for the State/respondents. ORAL ORDER (Passed on 05th day of Febmary, 2010) With the consent of leamed counsel appearing for the parties, the matter is heard finally. 1. Notices were issued to the respondents on 03.12.2009 and on the request of leamed State counsel, three weeks time was granted to file written. However, no reply has been filed. 2. By the present petition, the petitioner challenges the order dated 03.11.2006 (Annexure P/2) whereby a sum of Rs. 44,957/- has been deducted from the retiral dues of the petitioner, holding it to be excess payment made to the petitioner, during the course ofhis service. 3. Shri Verma, leamed counsel appearing for the petitioner submits that the petitioner, workmg as Peon, retired from service on attaining the age of superannuation on 31.05.2006. During the course of settlement of retiral dues, a sum ofRs. 44,957/- was deducted holding it to be excess payment made to the petitioner during the course ofhis service. ^sQiiii^pissa^st^: .SaStiuu-ud .•sSH^.a^SSSi. fiJ?ffiWril Tn["'ii. rf'rffei ..^' "^ %. l-..fiS8s& 1 i :'sy"vj j .^-. <t<y '•-asasigs!^ Shri Verma further submits that the 'issue asto whether recovery of excess payment for no fault of fhe 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 SyedAbdul Qadir and others v. State ofBihar and others). This Court, relying on the above decisions has passed several orders, directing refund of the amount, if any, recovered from the employees, where the employees were not given any opportunity to explain about the excess payment, if any, made to them. Shri Verma further contends that any recovery from retiral dues can be made only in case if there was any misrepresentation or fraud on the part of the employee and the employee had knowledge that the payment was received in excess. The error, ifany, could have been corrected within a short span oftime from wrong payment. Leamed counsel appearing for the respondents does not dispute the above submission made by leamed counsel appearing for the petitioner. However, he submits that the similar order may be passed, subject to verification offacts. This Court, as well as Hon'ble Supreme Court, in a catena of decisions, time and again reiterated that no recovery ofexcess payment for no fault ofthe employee can be made without following the principles ofnatural justice. This Court in Ramchandra Kurup v. State of C.G. & others^ and other comiected matters, decided on 23 November, 2009, observed as under: ' (2009) 3 SCC 475 W.P.(S) No. 3663 of2009 ..^fc / "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 ofmisrepresentation or fraud on the part ofthe employee, (ii) the employee had knowledge that the payment received was in excess, and (iii) the error was corrected within a short span of tune of wrong payment.........." 7. In view of the forgoing, the impugned order dated 03.11.2006 (Annexure P/2) directing reeovery Rs. 44,957/- on account of excess payment made to the petitioner, is hereby quashed. If the amount has already been recovered, the petitioner is entitled to the said amount with interest at the rate of6% per annuiTi, subject to verification offacts. 8. However, liberty is reserved to the State/respondents that ifthe excess payment has been made on account ofmisrepresentation or fraud on the part of the employee, or the employee had the knowledge that the payment received by him was in excess, fresh orders may be issued on verifiGation of the facts, after affording opportunity of hearing to the petitioner. 9. The writ petition is accordingly disposed of. 10. Noorder asto costs. _ :... Amit Sd/- Satish K. Agnihotri Judge