c/fwézf (i9 @nm %@m;@ IN THE HI H COURT OF CHHATTISGARH AT .- BILASPUR WRIT PETITIQN 15) No. ¥ Ki 2c OF 2Q09 PETITIONER : P. VIJAY NATHAN NAIR, AGED - 66 YEARS S/O LATE SHRI C. KRISHANAN NAIR RETIRED SUBEDAR/ HEAD CLERK, FROM O/O POLICE TRAINING SCHOOL, RAJNANDGOAN, R/O “BABY SADANAM" P. O. ~ CHITHALI, COYALMANNAM, DISTRICT - PALAKKAD, KERALA (INDIA) LOCAL ADREss - ROOM NO.>— 144, JUNIOR MIG, VIJETA COMPLEX, NEW RAJENDRA NAGAR, RAIPUR, DISTRICT — RAIPUR (C. .) VERSQS ESPONDENT : 1. ACCOUNTANT GENERAL OF C. G., THROUGH — SENIOR ACCOUNTS OFFICER, PAGARIYA COMPLEX, PANDARI, RAIPUR. 2. STATE OF CHHATTISGARH, THROUGH — THE SECRETARY, DEPARTMENT OF HOME 8L POLICE, MANTRALAY, D K. S. BHAWAN, RAIPUR THE POLICE SUPERINTENDENT, , POLICE TRAINING SCHOOL, RAJNANDGOAN, DISTRICT — RAJNANDGOAN (C. G.) Writ Petition under Article — E26 of thg Constitutign ~of India. G R HIGH COURT OF CHHATTISGARH AT BILASPUR Hon’ble Mr. Justice Pritinker Diwaker @ Writ Petition (S) No. 740912009 P. Vijay Nathan Nair PETITIONER Versus Accountant General of C.G. and others RESPONDENTS Shri R.K. Kesharwani, counsel for the petitioner. Shri Kashif Shakil counsel for respondent No.1. Shri A. V. Sridhar, PL for the respondents/State. WRTI PETITION UNDER ARTICLE 226 OF THE CONSTITUION OF INDIA ORDER (20.07.201 1) The petitioner, who is a retired Subedar/Head Clerk of the Police Department has assailed the show cause notice dated 23.10.2009 (Annexure P-1) issued by respondent No.1 for recovery of Rs. 45,808 from him ,under Rule 14 (7) of the Chhattisgarh General Provident Fund Rules, 1955 (for short the; “Rules of 1955”). 2. Grievance of the petitioner is that after his retirement from Police Training School, Rajnandgaon on 30.9.1999, he was paid all his retiral dues including GPF. However, on 16.12.2004 a letter (Annexure P-3) was issued to him by respondent No.1 with respect to recovery of minus balance of Rs. 78,142. To this, the petitioner submitted his reply on 11.7.2005 vide Annexure P—4. Thereafter, the show cause notice (Annexure P-1) which is the subject matter of this petition has been issued to the petitioner. 3. Acdording to the counsel for the petitioner, no such show cause notice could be issued to the petitioner after a iapse of about 10 years. Prayer for payment of balance amount of Rs. 16,000 with interest at the rate of 12 per cent per annum has also been made by the petitioner. However, during the course of argument, counsel for the petitioner submits that he is not pressing this reiief. 4. Denying the contention of the petitioner, it has been argued by the counsel for respondent No.1 that initially the petitioner’s GPF final payment was calculated for the baiance of Rs. (-) 78,142 and as certain entries for the period June 1984, August 1984 and October 1994 were missing and after constant scrutiny/review and correspondence when final calculation was done, the balance of (-) 45,808 till the date of retirement i.e. 30.9.1999 was found and accordingly the petitioner was informed on 23.10.2009 by the show cause notice under challenge in this petition along with monthly/yearly computerized statement showing the details of opening balance, deposit, interest, withdrawals and closing balance for verification/confirmation. Respondent No.1 has also explained the delay in issuance of initial show cause notices dated 16.12.1994 and 23.10.2009 by filing additional reply. Main ground 4 taken by respondent No.1 is that after re-organisation of the State, new office of Chhattisga'rh Accountant General was constituted and in many cases record was not complete which took sometime for the department to get the same from the erstwhile State of Madhya Pradesh. According to him, in the case of the petitioner also, it took some time for respondent No.1 to constitute the record and only then the action was taken against the petitioner. 5. Counsel for respondents 2 and 3 have supported the stand of respondent No.1 and submitted that as the petition has been V, filed only against the show cause notice, it is not maintainable for the reason that the petitioner has every right to explain before ‘ _3__ respondeht No.1 about the details of withdrawals and if he has not withdrawn any excess amount, then too he can say so before respondent No.1. State counsel argued that present is not a case where any recovery order has been passed against the petitioner without affording any opportunity to him, rather only the show cause notice has been issued asking him to submit his reply and in the event of reply being satisfactory, there may be a chance of not recovering any amount from him. 6. First'of all this Court would like to refer to the relevant Rule i.e. Rule 14 (7) of the Rules of 1955, which reads as under: “In case a subscriber is found to have drawn from the Fund an amount in excess of the amount standing to his credit on the date of the drawal, he overdrawn amount, irrespective of whether the overdrawal occurred in the course of an advance or a withdrawal or the final payment from the Fund, shall be repaid by him with interest thereon, in one lump sum, or in default, be ordered to be recovered by deduction in one lump sum from the emoluments of the subscriber. If the total amount to be recovered is more than half of the subscriber’s emoluments, recoveries shall be in monthly installments of moieties of his emoluments till the entire amount together with interest, is recovered. For this sub rule the rate of interest to be charge on ‘ overdrawn amount would be 2 1/2 % over and above the normal rate of Provident Fund balances under sub rule (1). The interest realized on the overdrawn amount shall be credit to Government account under a distinct sub-head "Interest” on overdrawal from Provident Fund." @ The aforesaid Rule thus specifically provides for repayment of the overdrawn amount along with interest at the rate of 2 1/2% over and above the normal rate of Provident Fu'nd balances. Moreover, it is settled legal position that there is no principle that any excess payment made to employees cannot be recovered back by the employer. May be in certain cases judicial discretion has been used refusing recovery of excess wrong payments of emoluments/allowances from employees on the ground of hardship but where the employee had the knowledge that payment received by him was in excess of what was due or where the error is detected or corrected within a short time of wrong payment, no ‘ interim relief with respect to recovery should be granted and the courts may on the facts and circumstances of any patticular case refuse to grant such relief against recovery. 7. In this case, it is not n dispute that the petitioner has received excess payment to what was due to him and that being so keeping in mind the relevant Rules, such excess payment needs to be repaid with interest. As regards delay of about 1O years in issuing the initial notice, respondent No.1 has tried to explain the same stating that after re-o‘rganisation of the State, new office of Chhattisgarh Accountant General was constituted and in many cases record was not complete which took sometime for the department to get the same from the erstwhile State of Madhya Pradesh. Likewise, in the case of the petitioner also, it took some time for respondent No.1 to constitute record and only then the action was taken against the petitioner. Thus the stand taken by the petitioner regarding delay' occurred in issuing the initial show cause notice being insignificant is hereby turned down. - More importantly, no specific order has‘been issued seeking recovery of the excess amount from the petitioner'but only the show cause notice with respect thereto has been issued, to which i @ the petitioner can submit his reply to respondent No.1 making the picture clear regarding the deposits and withdrawals etc. 8. Record thus makes it clear that after retirement from Police Training School, Rajnandgaon, on 30.9.1999 the petitioner has received all his retiral dues including the GPF and subsequently a letter dated 16.12.2004 was issued to him by respondent No.1 with respect to recovery of balance of Rs. (-) 78,142 which was duly replied to by the petitioner on 11.7.2005, and then the show cause notice which is under challenge herein was also issued with respect thereto. For the present, this Court does not see any reason to interfere with the show-cause notice (Annexure P-1) issued to the petitioner regarding recovery of the excess payment made to him. As merely the show-cause notice has been issued to the petitioner, he still has the opportunity to submit his reply to respondent No.1 making the picture clear regarding the details of deposits and withdrawals made by him. 9. ln view of above the petition being without substance is liable to be dismissed. lt is dismissed as such. / Sdl- Prit'mker Diwaker: ‘ Judge