A ^ IN THE HIGH COURT OF JUDJCATURE AT BILASPUR CHHATTISGARH /2009 ^'n9'e B<8tfh W.P. (S) N0. ^- PETITIONER .^ ^w-f-"".. ^ y ^;^<^' ..<:$yr ^- ^' RESPONDENTS PETITION ^K. P. Sharma S/o Late Shri D.D. Sharma Aged about 64 / Years, Occupation Retired Principal R/o Purani Basti, Pendra, Tahsil Pendra District Bilaspur C.G. VERSUS 1. State of Chhattisgarh, Through the Secretary Education Department, DKS Bhawan Raipur (C.G.) The Director Public Instruction, Raipur C.G. The District Education Officer, Bilaspur, District Bilaspur C.G. The Joint Director, Treasury Accounts and Pension, Bilaspur C.G. UNDER ARTICLE 226 OF THE 2. ..^~ 3. 4. CONSTITUTION OF INDIA FOR ISSUE OF__AN APPROPRIATE WRIT IN THE NATURE OF MANDAMUS/CERTIORARI ETC. OR DIRECTION/ORDER IN THE LIKE NATURE ETC. ^F< ^o HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S)NO. 707 OF 2009 PETITIONER K.P.Sharma RESPONDENTS Versus State of Chhattisgarh & Others (Writ Petition underArtide 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Rajesh Pandey with Shri Rakesh Pandey, Advocate for the petitioner. Shri A.V. Sridhar, Panel Lawyer for the State. 1. ORDER(ORAL) (Passed on this 21st day ofApril, 2010) Challenge in this petition is to the order dated 24-9-2008 (Annexure - P/1) whereby the petitioner has been directed to deposit a sum of Rs.70,538/- on account of wrong fixation of his pay for the period from 29-1-1978 to 31-8-2007. The facts, in brief, as projected by the petitioner, are that the petitioner was appointed on the post of Lecturer in Chemistry by order dated 20-1-1970 (Annexure - P/2). The petitioner crossed the efficiency bar on 28-1-1978. However, sanction order was passed on 7-11-1979 (Annexure - P/3) w.e.f. 29-1-1979. Accordingly, the pay of the petitioner was fixed as Rs.525/- per month. The petitioner was entitled to two increments on crossing the efficiency bar i.e. first from 29-1-1978 and second from after a year i.e. 29-1-1979. Accordingly, increments were given on 29-1-1978. After a lapse of period of 25 years, notice was issued to the petitioner on 9-3-2004 (Annexure - R/1) to appear before the office of Director, Public Instructions, along with the service book for clarification with regard to grant of increments on account of V. ^^-^sy crossing of efficiency bar. Thereafter, a show cause notice dated 13/14-3-2008 (Annexure - P/4) was issued stating that asto why amount of excess payment made during the period from 29-1-1978 to 13-7-2003 may not be recovered from the petitioner. Reply to the said notice was filed by the petitioner vide Annexure - P/5. Without considering the replyof the petitioner and provisions of Fundamental Rule 25 (for short "FR"), the impugned order of recovery of the amount was passed. Thus, this petition. Shri Pandey, learned counsel appearing for the petitioner, submits that FR 25 deals with sanction to crossing efficiency bar. The petitioner has not made any misrepresentation or has not played any fraud with the authorities. If there was any misconstruction on the part of the employer, in making excess payment, if any, recovery cannot be made. Shri Pandey further submits that it is not a case where after grant of first increment immediately some steps were taken. The petitioner was permitted to avail the benefits for a long period of 25 years. The show cause notice was also issued almost after lapse of 29 years. Thus, in no case recovery of the amount, which has already been made to the petitioner and the petitioner has enjoyed the same, may be made. In support of his contention, learned counsel placed reliance on the decision of the Supreme Court rendered in Syeb Abdul Qadir and Others v. StateofBihar and Others1. On the other hand, Shri Sridhar, learned Panel Lawyer appearing for the State, submits that the petitioner was not entitled to grant of increments immediately after crossing the efficiency bar, as the sanction was made on 7-11-1979 (Annexure - P/3), which became 1 (2009) 3 SCC 475 y 8. effective from 29-1-1979. Grant of increment w.e.f. 29-1-1978 was illegal and the same has to be recovered from the petitioner. Shri Sridhar further submits that the petitioner knowing fully well that he was not entitled to increments w.e.f. January, 1978, availed the benefits throughout. 1 have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. It is an admitted position that no action has been taken against the officer, who being the head of the department i.e. Director, Public Instructions granted sanction and against other officers who have granted excess payment to the petitioner. The respondents have also not offered any explanation with regard to delay of 25 years in issuing notice to appear before the authority and passing the order subsequently. It is evident that the sanction was granted by the Head of the Department i.e. Director, Public Instructions, by crossing efficiency bar w.e.f. 29-1-1979. As a matter of fact there is no dispute with regard to the crossing of efficiency bar as projected by the petitioner. The petitioner availed the benefits from January, 1978 till 9-3-2004, no show cause notice was issued calling upon the petitioner to explain how excess payment was made, but the petitioner was summoned to appear in the office of the Director with his service book. Thus, it cannot be held that show cause notice was issued on 9-3-2004. In fact, show cause notice was issued subsequently after a period of about 29 years i.e. on 13/14-3-2008 (Annexure - P/4). ^ 9. The Supreme Court in Syeb Abdul Qadir (supra) after having considered earlier decisions with regard to recovery of excess payment observed 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 sych 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 from 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 of wrong payment, the matter being in the realm ofjudicial 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. of India, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur." 10. The presentcase does not come under an exceptional clause that the excess payment was made on account of misrepresentation or fraud played by the petitioner. In the case on hand, even after consideration of reply to the show cause notice, it has not been established that any payment has been made on account of misrepresentation or fraud on the part of the employee. It is not in dispute that the payment was made on account of miscalculation or .:rl"l"'i'^ .-<-.' '^ w^^w\ ^^ 11. l/bp misconstruction of the provisions. The petitioner has accepted the money as legally due to him and has used the amount for a period of 29 years. Thus, at this stage, even if notice has been issued, the basic ingredients for recovery of excess payment have not been established. Further, the authorities have not taken steps immediately to correct the error of wrong payment, if any. Applying the well settled principles of law to the facts of the case and for the reasons mentioned hereinabove, the impugned order 24-9-2008 (Annexure - P/1) is hereby quashed. If the amount has already been recovered, the petitioner is entitled to the said amount. Gowri Sd/- Satish K. Agnihotri Judge