’ mwgma m¢sa3 @ H2Him mozwwvw EHQE OOGHNHOm.Omm>aanmnw>-m >H wHF>w~uGm~ grw. a.ZO.W\QwW NOOw wHHaaaOZHW ‘Lgawg wBmr m\o mg; wcdsc mSmS wmwg wUos ¥m_._v83? wamga WwSmmav W\o 2wwa wcgwwQQN amgwiav Wmwaiowaw“ <Ewmm wsa Huomm-Ww#m3oEHv Uwmqwo?wmmmw§ AOQQ <HWmdm \s \ ”H. mam<8 0mOrwwgwwmmaw ”HmwOZUwzaw arwo§m3n $5 wmnaamg“ moHwm‘m Umvmw‘mgwg U.W.m. wwmémS. WwwwCa AOC; OwSmmodE , Log‘m Uwamogw >ooo§S u awawmSQ wSQ vwdmwoHp Uwwwwggg; wwwwmwg, UwSmwoSv Uwmqwo‘mlwwgmmwrq ab; GilmwoUmH woam£ Ommooa moowa wogm‘H UwSmwoF UwmqwoTwzmwwCa AQQQ wSmmwcav Uwmqwg Owmowav awmwmCQ wmmmmvgu Uwm‘ao‘alggmwEa AQQ; >oooSSkhmH§QmSmwmH Orrwgwmmwar WEE Wwwoga AOQ; gwS)wmaHaHOZCZUEW >m§0bm wwaOw, OOZw§aC§OZ Ow ~2UH> w HIGH COURT OF CHHATTISGARH AT BILASPUR ‘ WRIT PETITION (S) NO. 5093 of 2008 Petitioner Jairam Singh Versus Resgondent State of Chhattisgarh & others WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA (SB : Hon’ble Mr. Satish K. Agnihotri, J.) Present :- Shri Ranbir Singh Marhas, AdVocate along with Shri Sanjeev Kumar Agrawal, Advocate for the petitioner. Shri Shashank Thakur, Panel Lawyer for the State. ORDER IORAL) (Passed on 20‘“ day of April, 2010) 1. Challenge in this petition is to the order dated 1-12—2006 (Annexure — PI1) passed by the Authorized Officer (Pension), office of the Joint Director, Treasury, Accounts and Pension, Bilaspur, whereby and whereunder it was directed to recover an amount to the tune of I Rs.1 ,1 1 ,686l— from the retiral dues of the petitioner. Sole contention of the petitioner is that the recovery has been ordered from the gratuity amount of the petitioner without affording an opportunity of hearing. Learned counsel submits that the petitioner has retired from the post of Forest Ranger on 30.09.2003 on attaining the age of superannuation. Thereaftef, recovery order was passed on 01.12.2006 after a period of three years without affording an opportunity of hearing. Thus, the impugned order may be quashed and the respondent authorities may be directed to make the payment with interest. 3. Per contra, Shri Thakur, learned counsel appearing for the State, submits that the petitioner has given an undertaking during the service and after the retirement that if .any excess payment has been made, the same may be adjusted from the retiral dues. Accordingly, an amount to the tune of Rs. 1,11,686/— has been recovered from the gratuity amount of the petitioner. Shri Thakur, learned counsel further submits that notices were issued to the petitioner on 19.12.2005 (Annexure R/7), 20.03.2006 & 01.08.2006 (Annexure R/s) and accordingly he has sufficient opportunity to put forward his case. i have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. lt is evident that the letter dated 19.12.2005 (Annexure R/7) issued by the Divisional Forest Officer (General) Forest Division, Kanker, to the Divisional Forest Officer (General) Forest Division. Bilaspur, which has not been even endorsed to the petitioner, this is a simple communication and the same cannot come within the purview of notice and other letters (Annexure R/8) are also simple information directing the petitioner to deposit the amount. No other document has been produced by the respondent authorities to establish the‘fact that opportunity of hearing was afforded to the petitioner. ‘Show cause notice’ implies opportunity of submitting an explanation to a clear unambiguous notice. Thus, in the facts of the case an information was brought in the knowledge of the petitioners without giving show cause notice to file response to prove genuineness or bona fide of the documents. The Supreme Court in Commissioner of Sales Tax and Others vs. Subhash & 00.1, observed as under: “15. The term “notice" originated from the Latin word "notifia" which means. “a being known“ or a knowing and is wide enough in legal circle to include a plaint filed in a suit. “Notice“ has been defined in various judicial dictionaries and dictionaries as follows : (2003) 3 SCC 454 1 The Judicial Dictiona , Words and Phrases Judicial/y Interpreted,2” Edn., by F. Stroud (p. 1299). 'Notice is a direct and definite statement of a thing, as distinguished from supplying materiais from which the existence of such thing may be inferred.” Webster’s Universal College Dictionary, 1 997 Edn., (p. 543) “information, warning or announcement of something impending; notification; to give notice of one’s intentions; a written or printed statement conveying such information or warning; as for renting or empioyment,‘ that the agreement will terminate on a specified date — ‘She gave her employer two weeks’ notice.’ Oxford Concise Dictionary “an intimation; intelligence; warning” and has the meaning in the expression like “give notice", “have notice" or “formal intimation of something or instruction to do something" and has the expression like “notice to quit”, “till further notice". Chamber’s 20'” Century Dictionary, 1993 (p. 1154) “intimation; announcement; information; warning; a writing, placard etc. conveying an intimation or warning; time allowed for preparation, etc.” Chamber’s Dictionary vide Allied Chambers (India) Ltd., Reprint 1994, 1995 (p. 1154) Intimation; announcement; a formal announcement made by one of the parties to a contract of his or her intention to terminate that contract; information, especially about a future event; warning; a writing; placard, board etc. conveying an intimation or warning; time allowed for preparation; cognizance; observation; heed; mention; a dramatic or artistic review; civility or respectful treatment; a notion etc." Law Lexicon Dictionary — A Legal Dictionary of Legal Terms and Phrases Judicial/y Defined, 4'“ Edn., VOI. H, 1989 (p. 226) “A person is said to have notice of a fact, when he actually knows that fact, or when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.” The Law Lexicon Dictionary, 2'” Edn.,~ 1997 (p. 1 322) (1) intimation; a writing; placard, board, etc. conveying an intimation or warning (Section 154 IPC and Article 61 (2) (a), Constitution of India); (2) Knowledge or cognizance (Section 56, Indian Evidence Act). 16. “Notice”, in its legai sense, may be defined as information concerning a fact actually communicated to a party by an authorized person, or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent to knowledge in its legal consequences. Dictionary further states: Co Lit 309 Tomlin’s Law Dictionary. 17. Notice is making something known, of what a man was or might‘ be ignorant of before. And it produces diverse effects, for, by it, the party who gives the same shall have the same benefit, which othen/vise he should not have had; the patty to whom the notice, is given is made subject to some action or charge, that othenNise he had not been liable to; and his estate in danger of prejudice. 18. “Notice is a direct and definite statement of a thing as distinguished from supplying materials from which the existence of such thing may be inferred." (Per Parke, B. Burgh v. Legge). 19. The dictionary gives some other definitions of notice as: -- The legal instrumentality by which knowledge is conveyed, or by which one is charged with knowledge. -- The term ‘notice’ in its full legal sense embraces a knowledge of circumstances that ought to induce suspicion or belief, as well as direct information of that fact. -— In its popular sense ‘notice’ is equivalent to information intelligence, or knowledge.” 7. The Supreme Couit as well as this Court in a catena of decisions, time and again reiterated that no recovery of excess payment for no fault of the employee can be made without following the principles of natural justice. This Cowt in Ramchandra Kurup v. State‘of C‘G. & Others2 and other connected matters, observed as under: “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 ...... " this petition is allowed, subject to verification of facts. The impugned order dated 1-12—2006 (Annexure — P/1) regarding from the retiral dues of the petitioner is hereby quashed. The petitioner is entitled to full pensionary benefits/gratuity amount without any deduction, in accordance with law. lf the said amount is already deducted, the same shall be payable to the petitioner with simpleinterest@6% perannum. However, on the request of the learned counsel for the State, liberty is reserved to take appropriate steps, if so advised, after affording proper opportunity of hearing to the petitioner, and pass appropriate orders, in accordance with law and on its own merits. There shall be no order asto costs. . Sd/- . ’ ESatish K. Agnihotnf ln view of foregoing, Arun Judge ?3 recovery of Rs. 1,11 ,686l- x 2 w.P. (S) No. 3663 of 2009 (decided on 23-11-2009)