^-- HIGH COURT OF CHHATFSSGARH AT BILASPUR WRIT PETITION No. 4390 of2004 PETITIONER : Bhagwat Prasad Gupta, S/o Late RaniLa! Gupta, aged about 65 yea^, R/o' Gharghora, Tateil- : .Gfaarghora, District: Raigai'h (Cliliattisgarh) V'ERSUS RESPONDENTS : 1. State of Chhattisgarh, Through Seci'etai'y, Tribal Welfare Deptt., DKS Bhawan, Mantralaya, Go^. of Clihattisgaiii, Raipur (ClihattiggaA) 2. The Collector, (Tribal Wetfare) , Raigaih (Clihattisgarh) 3. The Joirrt Director, (Trea^iiries, Accousite Pesisioii), Bilaspur (Chhattisgarh) WRIT PETmON UNDER ARTICLE 226 AND 227 OF THE CONSTmJTION OF INDIA SB; Hon'ble Shri Satish K. Agnfiiotri, J. Present: Shri M.K.Smha, Advocate for tlie petitioner, Sliri Alok Bakshi, Govermnent Advocate for tlie State / respondeirts. QBALORI5ER (Passed on 12U1 day of March, 2008) 1, By fhis petitioii, the petitioner impagns the letter datod 23.04.2004 issued by the respondent No. 3 (Asmexure P/16) whereby fhc Block Education Officor, (Tribal Welfare) Gharghora has been directed to send fhe pay slip and service book of the petitioner, stating that the petitioner was only 8 pass and his ser/ices were absorbed as Assistant Teacher, therefore the petitioner is entitled to lower pay scale whercas he was granted higher pays scale and fherefbre the exoess payment be recovered from the gratiiity amount and other retiral dues. 2. The brief facts, in nutshell, ai-e that the petitioner was appomted as Manager, Cooperative Society. His sen7ices were transferred to the Tribal Welfare Department on tiie post of Lower Division Teacher pursuant to the decision taken by the then State Govemment. After attaining the age of superamiuation, the petitioner retired from services oa 31.05.2002. He received the impugned letter dated 23.04.2004 (Asmexure P/16) issued by the respondent No. 3. Th^reafter, the petitioner made various represeiitations .to ttie State airthorfties statiiig ttiat neitb.er excess amount has beeii paid to sior aiiy notice. regarding the same has been issued by the competent authority dyring fhe service period ofthe petitioner. After hia retiremeQt fhe'-impugned order letter dated 23.04.2004 has been issued, wfeicli is not jiistaiid proper. The represesitations made by the petitioner to flxe respoiident authorities has not been considered. Being aggrieved, tiie petitioner has filed fhis petition prayiiig ttiat tte impugned letter dated 23.04.2004 (.AnHeKurc P/16) proposmg dediictioii ofexcess amount from fhe pemionary benefits ofthe petitiotier without affbrding an opportunily ofhcarmg to put fbrwani case oftte pd:itlo2ier, to the petitioner is illegal, arbitrary and mireasoiiable. Leamed coumel appearmg for the petitioner aubmits that ftere is no fault 011 the part of ttte petitioner and the amount is paid to hmi isi accordance with the pay scales^ revised and fixed by the respoiidents from time to time. Tlie respondents caimot recover the amount, already paid to tiie petitioner afler his rctirem.eiit, fhat too williovt following tie principles of natural justice. Leamed counsel fbrther submite that the petitioner does not warst to press ofher reliefe on merit, except tiiat the amount which has already be^n paid to the petitioner camiot be recovered from ihe retiral dues/yatuity amouirt on accoimt of excess payment made to the petitioner durmg fhat period without affording ^a opportumty ofliearmg. On the other hanci leamed counsel appearmg for the respondents/State submits that since the pay of the petitioner was fixed contrary to the 8. provisions and on scmtiny, it was found that excess amoant has been paid, the same can be recovered firom the retiral besiefits/OTatuity amount of the petitioner, even cn retirement wifhoat affordiiig an opportunity ofhearmg. The Supreme Court, m the case ofSahib Ram ¥s.StateofHaryana and others, in para 5 has held as under: "5. However, it is siot on account of any misrepresentation made by the appellajat that tfae benefit ofhisher pay scale was givea to him byt by wrong con^truction made by tlie Prmeipal fbr wtiich the appellant cannot be h©ldto be at fault. Under the oircimistances the amount paid till date itiay iiot b@ recovered from the appellaot." Leamed counsel for the respondents/State relies on Rvle 65 of the Cl-ihattisgarh Civil Services (Pension) Rules, 1976 (for short 'tlie Rules, 1976') for the purpose ofrecovery and adjustment ofGovemmesit diies. Rule 65 ofthe Rules, 1976 reads as ynder: "Rule 65 - Recovery and adjustment of Govemmeiit dues:- (1) It shall be the duty of every retiring Govemment ser^ant to olear all Govemment dues before the date ofhis retirement. (2) Where a retiring Govemment servant does not clear tto Govenimesit dues aiid ^uch dyes, -are ascertainable:- (a) an equivalent cash deposit niay be taken fi-om him; or (b) out ofthe gratuity payable to him, his nommee or legal heir, an atnouiit equal to that recovei-able on account of ascCTtamable Govemmesit dtoes Bhall be deducted. Explanation-1. The expre^ion 'ascertamable Govenmieiit dues' iiicludes balaace of Iiousa buildmg or conveyaiice advaiicep arrears of rent aiid otfaer charges pertaimng to occupation of Goveitimetrt Accommodation, over-payment ofpay and allowances aiid arrears of mcome tax deductible at source under the Income Tax Act, 1961" The contention ofthe petitioner that even for exercising power tinder Rule 65 ofthe Rules, 1976, basic principles pf natural justice and fair i^^ wpp ^i^ s>uu ^u ^^^m^,^'^ '^:.—..."•?" .-f'' "%»...2;^.vx^ 10. play ixi adion are required to be followed. In te present case, the State/aufhorities have not afibrded any opportiiaity cflieariliig to the petitioner to put forward his case asto why the deduction 'ftom tiie gratuity amount being excess amount cannot be made. The contention of the leamed comisel fbr the petitioner merits acceptance. This CourL m the case of Vidyadhar Tiwari Vs. The State of Chhattisgarh &. Others2, has held that the sxcess payment, ifany, made to the petitioirer, he was not at fault aiid fhe amount receh^d by him mi^rt ha^re been used by adjusting himself a^cordingly treating fhe same as his salary. At this sAa^, directing recovery ofth^ alleged exce^ amount trom the pensionary beneflts/gratiiity amoynt of the petitioner will not bejust and proper. In view ofthe foregomg aod as admitted by leamed couiisel appearing fbr both fhe parties; this petition m allowed m the terms ofthc? order passed m the case of Vidyadhar Tiwari (supra) i.e. the imipu^ied letter dated 24.04.2004 (Annexure P/16) proposing to grant lower pay scale to the petitioner and recovery ofamoijnt from the gratuity and other dues ofthe petitioner on account of excess payment is hereby qyashed, The petitioner is entitled to full pensionary benefits/gratuity amount without any deduction, However, the r^spondents may take recoux^e to Riile 65 of the Rules, 1976, if so advised, in accordance with law and basic principles ofnatoral justice. No order asto costs. Sd/- Satish K. Agnihotri Judge Amit ' 2006 (1) MFHT 105 (CG)