SINGLE BENEH W }w%/ ® N THE HIGH COURT OF CHHAmSGARH AT BILASPUR wmsl No. 337+?) m9 J? PR ETITIONE / Khedu Ram Bhagat S/oRama Ram Aged about 68 years, Rtd Assitant Teacher R/o Badanbai P.O Pikhali Distt. Jashpur C.G] State of Chhattisgarh Through the Secretary, Department of Tribal Welfare, D.K.S. Bhawan Raipur [C.G.] The Assitant Commissioner, Department o£Triba1 Development Jashpur Distt . Jashpur C.G] The Block Education Of&cer, Jashpur DisttfJashpur [ C.G.] The Divisional Joint Director Trasury Accounts and Pension, Bilaspur [ C.G;] WRIT PETITION A/U 226/227 OF THE CONSTITUTION OF INDIA 1 1 Hon. Mr; Justice Pritinker Diwaker) Writ Petition (5) No. 3378 of 2009 PETITIONER Kheduram Bhagat VERSUS RESPONDENTS State of Chhattisgah and others Shri N.K. Malviya counsel for the petitioner. Smt. Smitha Ghai PL for the respondents/State. O R D E R (07.12.2010) ChaHenge in the present petition is to the order/ietter dated 26.2.2007 (Annexure P-1), issued by the Joint Director, Treasury, Accounts & Pension, Biiaspur directing recovery of Rs. 2,04,450 in equal monthiy installment of Rs. 1300 on account of access payment made to the petitioner due to wrong fixation of pay.‘ 2. Counsel for the petitioner submits that before passing the orde impugned or taking a decision for recovery of the access amount from the petitioner no opportunity of hearing whatsoever has been provide to him to explain his case and the order impugned has been passe behind his back. He submits that the petitioner is a retired assistant teacher and gets very’meager pension and if this recovery is made from the petitioner, an irreparable loss would be caused to him. He submit that the order impugned is in complete violation of the principles of natural justice and fair play. According to the counsel for the petitioner, even assuming that wrong fixation has been done in case of the petitioner, the sam‘e has not been done at his behest nor has he made any misrepresentation or fraud in doing so. 3. On the other hand counsel for the respondents submits that though no show causenotice has been issued to the petitioner before passing the order impugned, respondents are fully justified in making recovery of the access amount paid to the petitioner due to the wrong pay fixation. She ’submits that when the petitioner is not entitled for . certain amount he should not haVe accepted the same and even if it was s ( r d d s l pa‘id i0 him by mistake he‘ should'have paid it back in‘ ail fairness inivieW’ of the Rule 65 of Chhattis‘garh Civil Service (Pension) Rules 1976. . Undisputediy, before passing the lorder impugned regarding recovery of the access payment made to the petitioner, no opportunity of hearing has been given to the petitiOner nor has any show cause notice been issued to him. The fact whether recovery of the excess payment for no fault of theemployee can be made without complying with the principle of natural justice is no longer res integra and the same has been settled by the Supreme Court in various cases including the case in the matter of Sahib Ram vs. State of Haryana and others reported in 1995 Supp (1) SCC 18 and in the matter of Syed Abdul Qadir and others V. State of Bihar and'others reported in (2009) 3 SCC 475 and relying on that judgment various ordershave been passed by this Court directing refund of the excess amount if any recovered from the employees. He submits that any recovery from the retiral dues can be made in case there was any misrepresentation or fraud committed by the petitioner and that he had the knowledge that the payment received by him is in excess. The aforesaid view has further been re-affirmed by the Apex Court in the matter of Yogeshwar Prasad and others v. National Inst. Edu. Planning and Admn. and others in Civil Appeal Nos. 288-289 of 2005 vide order dated 21.10.2010. Practice of passing the orders involving civil consequences without giving show cause notice to the petitioner can no longer be approved. 5. Accordingly, the petition is allowed. Order impugned is hereby set aside. Amount if any recovered so far is directed to be refunded to the petitioner with interest at the rate of 6 per cent per annum. No order as to costs. Needless to say that the respondents can always take the recourse to Rule 65 of the Chh‘attisgarh Civil Services (Pension) Rules, 1976 if so advised in accordance with law after following basic principles of natural justice. y . Sd/— ” Pritinker Diwaker Judge 4