C ^ f wr^ BEFORE THE HOIN'BLE HIGH COURT OF CHHAHISGARH AT BILASPUR (C.G.) WRIT PETITION S. N0. ^/ ^f / /2007 PETITIONER ^-••'^' '\ 0~"' .-• ^^•/" "^^. ^.A'l^y t'v'-'.'y ^•N'^ (?^ <;<B>/ >fy RESPONDENTS .,,3-^ ^^^A ^.^; ^^^ c^^ w ^- ¥- Mokhiyar Ram Badaik S/o. Shri Motaka Ram Badaik Aged about 62 years, R/o. vill Sonkiyari Police Stafion - Sanna Tahsil - Bagicha, Disfrict - Jashpur ('C.G.) V E RSU S 1. State of Chhattisgarh Through the Secretary Deptt of Schedule Tribe Welfare D.K.S. Bhawan, Raipur (C.G.) ^" 2. The Accounfant Generat State of Chhattisgarh, Raipur (C.G.) The Joint Director, Treasur/, Accounts & Pension Bilaspur Division, Bilaspur (CG) 4. Assistant Commissioner, Deptt of Tribai Weifare Jashpur Nagar, ' Distt. Jashpur (C.G.) 5. Block Education Officer, Manora, Tahsil and Distt. jashpur (C.G.j iBB ^" gy WRIT PETITIOIN UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDiA FOR ISSUANCE OF WRIT IN THE NATURE OF MANDAMUS, PROHIBITIOIN AND CERTIORARI ¥- & "%•. % 7T7 P ^T^ %5 HIGH COURT W CHHAmSOARH : BILASPUR SINGLE BENCH: HON'af SHRI MANINDRA MOHAN SHRIVASTAVA.J. Writ Petttion (S»No6141^007 PETITIWIER RESPONDENTS: Makhi^r Ram Badaik Versus State of ChhatUsgarh and others WRIT PETmON UNDER KKTV^JE 2SBtt27 OF THE CCMOTm!TI<»lOFlNDth POSTFORORDERON <ur OCTOBER^2018 Sd/- M.M. Sbrivastava Judge ^- HK3H COURT OF CHHATTKQARH: BttASPUR Sinate Bench: Hon'bte Shri lllanindra Mohan Shrivastava. J. PETmONER Wrtt Petitfon ffi»No6U1ffOfl7 MakWyar Ram Badaik Versus RESPONDENTS: azrte of Chhatfisgarh and othere WRIT PETITICW UNMR ARTICLE 226027 OF THE CONSTITUTK)N OF as^ Presenfc Shri J. S. Baraik, counsel for the petitioner. Shri V. V. S. Murthy, Deputy Advocate General for the Stsrte/respondents No.1 & 3to5. Shri R. Pradhan, counsel for respondent No.2. ORDER (Passed on ^_bctobCT, M1(^ This petitfon is directed again^ the order dated 21-02-2006 (Annexure P- 1) passed by the respondent No.5 on the baas of letter dated 21-12-^X)5 <rf the Joint Director, (Treasury & Accounts), BBaspur, making recovery <rf Rs.3,68.911/- from the peTOoner stating that the said amount has been paid in excess to the petiUoner towards his salary during the penod from 01-04-1981 to 31-03-20% while he was inservfce. The petttioner has also raised claim ft>r payment of rrtiral dues <rf the amount of Rs.3,86,043/-. 2. ^sailing ttie correctness and validity of ttie order passed by the respondents in maldng recovery from ttie amount <rf WSrsA dues of the i^jfioror, toamed counsel for the peUConer submitted that the acUon of the respondents is arMtrary firstly fw the reason that the impugned action of recoveiy on the basis of alleged excess payment has been taken without affwding any oppwtunity of hearing to the petittoner, which is violathre of the principtes of natural 'iusSce. The second limb of submisston of teamed counsel (w the petitkxier fe that white the p^itioner was in seivtee, he was paid salary on ttie basis of wirious pay fixafions ^: done from time to time on account of reviston of pay scales. Leamed counsd for the petifioner aigued that in the absence <rf there being any case <rf the respondents Uiat the excess payment was resutt of any firaud or misrepresentation on Bie part of the peBtioner, wftatsoever paymsnts have already been made to ttie petitioner over such a tong period from 01-04-1^1 to 31-03-2005 i.e. almost 25 years, coukl not be recovered from Uie petitioner at ttie Ume of his retirement and the same woukl resutt in serioire and grave hardship, as the peBUoner is a retired Teacher. Leamed counsel for Uie petitfoner then submits that it is not a case where the peBtroner recewed higher salary knowii^) fttlly well that he was not enUUed to it, therefor®,the respondents are stopped from not making such a huge amount of recovefy Uiat too from the retiral dues of the petitioner. Leamed counsel for the pettioner relies upon Uw decisions in the case <rf Safitti Ram v. State ofHayana and oftere, f995 Supp (1) S(XS 20, SyedAbdul Qadlr S, offiws v. Stato ofBttiar & Offiws, (2009) 3 SCC 475 and ths order passed by thfe Court in the wse <rf Vkt^idhar Tiwari Vs. The State of ChhatUsgarh & Ofters, 2006(1) MPHT 105 (CG). 3. On the other hand, submisston of Iramed counsel for respondent No.2 is that as the recoveiy has been made by the responctents No.1 & 3to 5, Uw action is (^iujred to be taken against the concemed respondent. 4. Leamed counsel for respondents No.1 & 3 to 5 submite that the excess payment towards satary was made to the prtiUoner due to wrong catculation <rf hfe pay at various stag of up-gradaUon in the ^ae/ scate. He further submite that when the pay of the p^ftroner was revised under the Madhya Pradesh Pay Revision Rules, 1987, e prtStioner had executed an undertaking on 17-04-1990 (Annexure R-1) Uiat in case, in ftiture, it is (bund that any ewess payment has been made, then the p^itioner would be liable to refund the excess amount. w ^^:sy ^ Thereafter, while revising the pay of the pettkMier under Madhya Pradesh Pay Revisfon Rutos, 1998, the p^tfoner had again ©(ecutedan undwtaldng of the similar nature on ( -06-1998 (Annexure R-2). tt is submttted that on account of undertaking ghren by the petiUoner, he coutd not ratee any such grievancs against the action of recovery of excess payment made to the peBUoner. 5. It is not in dispute that before effecting recoveiy of such a huge aniount <rf Rs.3,68,911/- from the retiral dues <rf the petitfoner aflsr hte reUrement, no opportunity <rf hearing has been afforded to the petitfoner. Consequences of such acUon of recovery are grave and serious in nafcire, as the petUioner, who was refired as a Teacher from the School is to deprived of almost entire amount of his retiral benefits whteh would have been paid inctucBng Rs.3,68,911/-. Neither in the retum nor from any other document or cateulatkm wBh reference to retovant Ray Revision Rules, appropriate pay scale chart, it has been ctemonstrated by the respondents as to how the pettBoner was pakl excess amount. Tue it is that the prtiUoner had ghren an undertakir^i that if excess amount s found to be pakl, the same may be recovered. However, this would nrt mean that the respondents coukl effect recovery (rf the amount whteh were pakl to the peUfioner from year 1981 and paid till 2005 that too after his retirement from his retiral dues. It was for ^- the respondents to have periodicalty scrutinized as to whether proper fixatton has been made. If no acBon fw recovery has been taken wtthin a reasonabte period, it would not be permissible <tor the responderte to initiate any recowry that too wtthout giving any opportunity <rf hearing after tong tinro, as by ftsrt tims whatsoever paid to the petiBoner, has been expended by the petitioner undw a bonafide belief that the same was due and payabte to him. 6. There is no material placed <m record by the respondents to draw any conclusion that the so-caHed excess payment was an outeome of any fraud or 4 misrepfesentation <MI the part of the petitioner. In fact, tt is not at atl the case of fte respwidents that earlier ewees payments were made because <rf any fraud or misrepresentation on the part ofthe petitioner. 7. Thus, the respondents have (fcsUy faited to estaUish Uiat the satary wftich was paid to ttie petitioner over }ast (wo and half decadre from year 1981 to 2005 was in excess of what was due and payabte to the p^Woner, upon fbtation of pa?/ in the appropriate pay scate under Pay Revision Rutes implemwited from time to Ume. The respondents have talted to prove, much l^s averred, Uiat ttie same was an outeome of any (raud or mferepresentation. K is not in dispute that the serious adveree acBon was taken against Uie prtitiwier urithout complying with Vne minimum requiremente of princaples of natural justtee. R^ying upon the decisions in die case of Sahib Ram (supra), Syed Abdul Oacfisr & ottiers (supra) and the order passed by this Court m the case of Wdyadhar ^wari (supra), the impugned acUon of the respondenls No.1 & 3to 5 in making recovery to the tune of Rs.3,68,911/- from the retiral dues of Uie petittoner canm* be sudained in the eys <rflaw. Consequently, the actfon and order of recovery dated 21-02-2006 (Annexure P-1) is dedared ille^l and hereby set askte. The respondents shall be obliged to make payment of all reBral dues <rf the petffioner vt^hout undue detey. As the pefifioner has refired on 31-03-2005, the enUre amount of retiral dues stall cany simpte inter^t @ 10% per annum from fte date it became payabte under various heads till the date of artual payment. 8. In view of foregolng, the petiUon is allowed to the extent hidicated above. There shall be no ordere as to cost Sd/- M.M. Shrivastava Judge TUHWKE