R.S.A.No.3101 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3101 of 2009 Date of Decision : 06.10.2009 Narain Chander ...Appellant Versus The State of Haryana and another ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Yogesh Chaudhary, Advocate, for the appellant. Mr. Kulvir Narwal, Addl. AG, Haryana, for the respondents. HEMANT GUPTA, J. (ORAL) A short substantial question of law, which arises for adjudication of the present appeal is "Whether the recovery from the salary of the plaintiff could be effected without giving him any show cause notice or opportunity of hearing". The petitioner is a driver of truck in the office of the General Manager, Haryana Roadways, Karnal. The challenge in the suit is to the recovery proceedings initiated by the respondents to recover a sum of Rs.76,833/- paid as over-time wages for the period October 2001 to June 2003. Plaintiff claims to be entitled to such over-time wages in terms of the provisions of Motor Transport Workers Act, 1961 and in terms of Policy dated 1.2.2002 Ex.D-5. The learned trial Court decreed the suit, inter alia, holding that no opportunity of hearing was afforded to the plaintiff and order of recovery dated 20.1.2005 was discriminatory. It was also found that R.S.A.No.3101 of 2009 2 written undertaking given by the plaintiff to return the amount of over- time wages before the same was paid to him is neither bears the signatures of the concerned authority nor any diary number was marked on it. Consequently, no recovery from the plaintiff can be effected. However, the learned first Appellate Court found the claim of the defendants tenable on the basis of the undertaking furnished by the plaintiff and also that the plaintiff is not covered by the Policy Ex.D-5, as it is not disclosed that how many kilometers, the plaintiff has covered and is thus, entitled to over-time wages. It is not disputed by the learned counsel for the defendants that in fact no opportunity of hearing had been granted to the plaintiff before the order of recovery was passed. However, it is asserted that the recovery is being effected on the basis of undertaking dated 18.9.2003 Ex.D-1 given by the plaintiff that if it is found that payment has been made in excess, the Department is entitled to recover the same. However, before any finding can be returned that payment in excess has been made to the plaintiff, an opportunity of hearing was required to be given to the plaintiff so as to return a finding that overtime wages has been paid to the plaintiff unauthorizedly and illegally. Such an order could be passed only after complying with the principle of natural justice i.e. by serving a show cause notice and by providing an opportunity of hearing. Consequently, the decree granted by the learned first Appellate Court is set aside. However, the defendants shall have liberty to pass a fresh order after complying with the principle of natural justice. It is further clarified that any payment recovered in pursuance of the R.S.A.No.3101 of 2009 3 impugned order of recovery shall be subject to the final decision, which may be taken by the competent authority after complying with the principle of natural justice. The appeal stands disposed of accordingly. 06.10.2009 (HEMANT GUPTA) Vimal JUDGE