«-.^ ^l <J^-->% "^; <S3'^ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition CS) No. 1 155 of2009 PETITIONER : Sylvanus Xaxa S/o Bamabus Xaxa aged about 68 years (Retired Headmaster) R/o Village/Post-Dokra, Tahsil Bagicha, Block Kaiisabel, Distt. Jashpu:r (CG). VERSUS RE8PONDENTS : 1. The State of Chhattisgarh Through the Secretary Tribal Wetfare Department, DKS Bhawan, Raipur, District Raipur(CG). 2. Divisional Joint Direetor, Treasury, Accounts & Pension OfBce, Bilaspur Division, Bilaspur (CG). 3. Block Education QfBcer, Kansabel, D'istt. Jashpur (CG). (WRTr PETmON UNDER ARTICLE 226 OF THE CONSTFTUTION OF INDIA) (SB: Hon'bIeMr.SatishK.Agnihotri,J.) Present : Shri SomkantVerma, Advocatetorthepetitioner. Shri Arun Sao, Govt. Advoeate for the State. ORALORDER (Passed on 27 day ofPebruary, 2009) With the consent ofthe parties, the matter is taken up for hearing, fmally. 1. By this petition, the petitioner impugns the order dated 28.07.2006 (Annexure P/l), passed by fhe respondent No. 2, whereby it has been directed to recover a sum of Rs. 2,20,712/- as exeess payment made to the petitioner, from fhe pensionary benefits. 2. The brief facts, m nutshell, are that the petitioner while workmg as Head Master, retired on attainmg fhe age of superanhuation on 31.12.2005. The petitioner received the impugned recoveryorder dated 28.Q7.2006 (Annexure P/l), issued by the respondent No. 2, whereby, the District Treasury Olficer was directed to reeover a sum of Rs. 2,20,712/'- witliout affording an oppQrtMmtyofhearingtolhepetitioneT. i Leamed counsel appearing for fhe petitioner submits that the issue asto whether reeovery of excess payment can be made without following principles of natural justice is no longer res integra, the same has been settled by the Supreme Court in the matter of Sahib Rawi Vs. State ofHaryana and olhers^, and furtlier followed by this Court in the matter of Vidyadhar Tiwari Vs. The State ofChhattisgarh & Others . Leamed counsel forthe respondents/State relies on Rule 65 ofthe Chhattisgarh Civil Services (Pension) Rules, 1976 (for short 'the Rules, 1976') forthe purpose ofrecovery and adjusfaient ofGovemment dues. Rule 65 ofthe Rules, 1976 reads as under: "Rule 65 - Recovery and adjustment of Oovermnent dues:- (1) It shall be the duty of every retiring Govemment servant to clear all Govemment dues beforethe date ofhisretirement. (2) Where a retiring Govemment servant does not clear the Govemment duesand such dues are ascertainable:- (a) an equivalent cash deposit may be taken from him; or (b) out ofthe gratuity payable to hun, his nominee or legal heir, an amount equal to that recoverable on account of ascertainable Oovennnent dues shall be deducted. Explanation-1. The expression 'ascertainable -Govermnent dues' includes balance ofhouse building or conveyance advaiice, arrears ofrent and other charges pertaming to occupationof Govemment Accommodation, over-paymeht ofpay and allowances and arrears of income tax deductible at source under the Income Tax Act, 1961" The contention ofthe petitioner that even for exercising power under Rule 65 ofthe Rules, 1976, basic principles ofnaturaljustiee and fair play in action are requirpd to be followed. In the present case, the State/authorities have aot afforded any opportunity of hearing to the petitioner to put forward his case asto why the deduction from the gratuity amount berng excess amount cannot be made. The contention of the leamed counsel for the petitioner merits acceptance. '1995Supp(l)SCC20 2 2006 (1)MPHT 105 (CG) s& WKS Sahu 6. This Court, in fhe case of Vidyadhar Tiwari (supra), has held that the excess payment, if any, made to the petitioner, he was not at fault and the amount received by him might have been used by adjusting himself accordingly treating the same as his salary. At this stage, direeting recavery ofthe alleged excess amount from fhe pensionary beiiefits/g'atuity amount ofthe petitioner will not be just and proper. 7. In view of the foregoiiig, this petition is allowed in the tenns of the order passed in the case of Vidyadhar Tiwari (supra) i.e. the impugned letter dated 28.07.2006 (Annexure P/l) regarding recovery ofamount fromthe gratuity and other dues ofthe petitioner on account ofexcess payment, is hereby quashed. Tlie petitioner is entitled to full pensionary benefits/gratuity amount wifhout any deduction. However, it is open to the respondents to take recourse to Rule 65 ofthe Rules, 1976, ifso advised, in aecordance wifh law, following basic principles ofnaturaljustice. Noorderastocosts. i ~~~———^ Sd/- SatishK.Agnihotn L:i: