.y ^' ^? ¥ IN THE HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition (S) No. 75 of 2009 Petitioner Chintamani Sahu, S/o Late Keshav Chandra Sahu, Retired P.T.I. Teacher, aged about 66 years, R/o Village & Post Bade Navapara, Block Baramkela, District -- Raigarh (C.G.) Versus Respondents 1. State of Chhattisgarh, Through the Secretary, School Education Department, D.K.S. Bhawan, Raipur (C.G.). The Joint Director Treasury Accountant and Pension, Bilaspur, District Bilaspur (C.G.) The District Education Officer, District Raigarh (C.G.) The Principal, Government Higher Secondary School, Bade Navapara, Block Baramkela, District Raigarh (C.G.) 2. 3. 4. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA (SB: Hon'ble Shri Satish K. Agnihotri J.) Shri Sanjay Patel, Advocate for the petitioner. Ms Smitha Ghai, Panel Lawyer for the respondents. ORDER (Passed on this 27th Day of March, 2009) With the consent of learned counsel appearing for the parties, the matter is heard finally. Learned counsel appearing for the petitioner submits that the petitioner, while working as P.T.I. Teacher, retired from service on attaining the age of superannuation on 30.4.2004. After his retirement by order dated 24.4.2006 (Annexure P/2) a sum of Rs. 13,198/- has been directed to be recovered from the retiral dues of the petitioner on account of excess payment made to the petltioner. Learned counsel appearing for the petitioner submits that the petitioner was not given any opportunity to explain about the payment made to the petitioner. Thus, this order is vitiated for ^( want of compliance of the principles of natural justice and fair play in action. Learned counsel further submits that there is no fault on the part of the petitioner and the amount is paid to him in accordance with the pay scales, revised and fbced by the respondents from time to time. No reason has been assigned asto on which count the excess payment, if any, was made. The respondents cannot recover the amount, already paid to the petitioner after his retirement, that too without following the principles ofnaturaljustice. On 9.1.2009 learned counsel appearing for the respondents/State prayed for and was granted sbc weeks time to file reply. Despite opportunity granted to learned counsel appearing for the respondents/State, no reply is filed. However, learned counsel submits that it is apparent that no show cause notice was giveri to the petitioner. The petitioner was not called upon to submit his explanation for payment of alleged excess payment and recovery thereafter. The respondent-authorities have not followed the principles of natural justice and the impugned action has been taken without affording an opportunity of hearing to the petitioner. The practice of passing order involving civil consequences, without show cause notice or without affording an opportunity of hearing is condemned. Thus, this action of deducting Rs. 13,198/- from retrial dues is bad on account of the fact that the petitioner was not afforded any opportunity of hearing before the impugned action was taken. ^- \.; 8. The Hon?ble Supreme Court in the case of Shyam Babu Verma and others Vs. Union of India and others1, has held that the employees who have received higher scale due to no fault of theirs, it shall only be just and proper not to recover any excess amount already paid to them. In that case, the petitioners were given higher pay-scale w.e.f. 1.1.1973, although only after a period of 10 years they became entitled to the higher pay-scale, but as they received higher scale since 1973 and the scale was reduced in the year 1984 w.e.f. 1.1.1973. The Hon'ble Supreme Court in the matter of Sahib Ram Vs. State of Haryana and others2 , in para 5 held, as under: <(5. However, it is not on account of any misrepresentation made by the appellant that the benefit of higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances, the amount paid till date may not be recovered from the appellant.?? The HonlDle Supreme Court in the matter of P. Tulsidas and others Vs, Government of A.P. and others3 , observed that the beneflt accrued earlier by way of grant of higher pay or revised pay, cannot be taken away as the same is violative of Article 14 and 16 of the Constitution of India being arbitrary, unreasonable and expropriatory. This Court in the matter of Vidhyadhar Tiwari Vs. State of Chhattisgarh & others4, held that for 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 '{(1994)28cc 521} 2{1995Supp(l)SCC20} 3{A.I.R.2003SC43} 4{ 2006 (1) M.P.H.T. 105 (C.G.)} ^^^. ^ Thakur accordingly treating the same as his salary. At this stage, directing recovery of the alleged excess amount from the pensionary benefits of the petitioner will not be just and proper. 10. In view of the forgoing, the petition is allowed. The impugned order dated 24.4.2006 (Annexure P/2) in regard to the recovery of Rs. 13,198/-, on account of excess payment made to the petitioner, is hereby quashed. The petitioner is entitled to full pensionary benefits/gratuity amount without any deduction. If the amount has already been recovered, the petitioner is entitled to the said amount with interest at the rate of 6% per annum. However, it is open to the respondents/State to take recourse to Rule 65 ofthe Chhattisgarh Civil Services (pension) Rules, 1976, if So advised, in accordance with law, following the basic / principles ofnaturaljustice. No order asto costs. Sd/- Satish K. Agnihotri Judge ^