^ia<itiS'°-3B@[ HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS WRIT PETITION (S) No. 5364 of 2006 Bodhan Singh Thakur son of late Shri Banmali Singh Thakur, aged about 64 years, retired Head Master (Education Department) R/o Phooljhariapara Sarangarh Tahsil Sarangarh District Raigarh (C.G.) VERSUS : 1. The State of Chhattisgarh, Through - The Secretary, School Education Department, D.K.S. Bhavan, Mantralaya, Raipur (C.G.) 2. The Joint Director, Treasuries, Accounts and Pension, Bilaspur Division, Distt Bilaspur (C.G.) 3. The District Treasury Officer, Distt. Raigarh (C.G.) 4. The Block Development Education Officer, Tahsil Sarangarh, Distt. Raigarh (C.G.) WRIT PETITION UNDERARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Aenihotri, J. Present: Shri Sameer Behar, Advocate for the petitioner. Shri Alok Bakshi, Govemment Advocate for the State/respondents. ORAL ORDER (Passed on 28U1 day of March, 2008) With the consent of the parties, the matter is taken up for hearing finally. The brief facts, in nutshell, are that the petitioner was initially appointed on 01.07.1959 as Assistant Teacher. He retired firom service on 30.04.2004 from the post of Head Master. The petitioner received the order dated 24.04.2006/24.05.2006 (Annexure P/2) from the respondent No. 2 for recovery of Rs. 1,51,161/- from the retiral dues of the petitioner. The petitioner has earlier impugned the order dated 24.04.2006 /24.05.2006 (Annexure P/2) in W.P. No. 3503/2006 (Bodhan Singh Thakur Vs. The State of Chhattisgarh & Others). This Court, after hearing the petitioner, without expressihg any opinion on merits of the case, vide order dated 17.07.2006 (Aimexure P/3) granted permission to ^y the petitioner to make a detailed representation alongwith a copy of the petition to the Joint Director, Treasury, Accounts and Pension, Bilaspur Division, Bilaspur (Respondent No. 2.). In tum, the respondent No. 2 was directed to consider and decide the representation within a period of 30 days. Accordingly, the petitioner made a representation to the respondent No. 2 on 22.7.2006 (Annexure P/4). The respondent No. 2 passed the order in a cryptic manner without explaining or giving opportunity ofhearing to the petitioner. The petitioner has impugned in this petition the order dated 31.7.2006 (Annexure P/l) as well as the orders dated 24.04.2006/24.05.2006 (Annexure P/2) issued by the respondent No. 2 for recovery of a sum of Rs. 1,51,161/- from the retiral dues. Thus this petition. Shri Sameer Behar, leamed counsel appearing for the petitioner submits that even if excess amount has been paid to the petitioner from the year 1973 till his retirement, he is not at fault. The amount was paid to him is in accordance with the pay scales, revised and fixed by the respondents from time to time. The respondents cannot recover the amoimt, already paid to the petitioner after his retirement, that too without following the principles ofnaturaljustice. Leamed counsel further submits that the petitioner does not want to press other reliefs on merit, except that the amount which has already been paid to the petitioner cannot be recovered from the retiral dues/gratuity amount on account of excess payment made to the petitioner during that period without affording an opportunity of hearing. Shri Alok Bakshi, leamed Govemment Advocate for the State/respondents submits that Rule 65 of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short 'the Rules, 1976') provides for recovery and adjustment ofGovemment dues. It was next contended that the petitioner had filed an undertaking to refund back the money if it is found that the amount paid to him was in excess. Leamed counsel for the respondents/State relies on Rule 65 of the Rules, 1976, which reads as under: 10. 11 "Rule 65 - Recovery and adjustment of Govemment dues:- (1) It shall be the duty of every retiring Govemment servant to clear all Govemment dues before the date ofhis retirement. (2) Where a retiring Gdvemment servant does not clear the Govemment dues and such dues are ascertainable:- (a) an equivalent cash deposit may be taken from him; or (b) out of the gratuity payable to him, his nominee or legal heir, an amount equal to that recoverable on account of ascertainable Govemment dues shall be deducted. Explanation-1. The expression 'ascertainable Govemment dues' includes balance of house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Govemment Accommodation, over-payment of pay and allowances and arrears of income tax deductible at source under the Income Tax Act, 1961" Shri Bakshi further submits that since the pay ofthe petitioner was fixed contrary to the provisions and on scmtiny, it was found that excess amount has been paid, the same can be recovered from the retiral benefits/gratuity amount of the petitioner, even on retirement without affording an opportunity ofhearing. I have heard rival contentions of the leamed counsel appearing for the parties, perused the pleadings and documents appended thereto. It is evident that the order of recovery was passed without affording any opportunity of hearing to the petitioner. Even if the petitioner has tendered an undertaking, the petitioner (govemment employee) ought to have been given an opportunity of hearing. This requirement is in accordance with the principles ofnaturaljustice and fair play in action. The Supreme Court, in a catena of decisions has held that any amount paid to the govemment employee not for his fault or on the basis of misrepresentation, may not be recoverable from the govemment employee. The Supreme Court, in the case ofSahib Ram Vs. State ofHaryana and others , in para 5 has held as under: ' 1995 Supp (1) SCC 20 --^p- "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 constmction 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." 12. Further, in the matter of Shyam Babu Verma and others v. Union of India and others , the Supreme Court has held as under: "11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.fjanuary 1, 1973 and only after the period of 10 years, they became entitled to the pay scale ofRs. 330- 560 but as they have received the scale ofRs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall be onlyjust and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same." 13. For exercising power under Rule 65 ofthe Rules, 1976, basic principles ofnatural justice and fair play in action are required to be followed. In the present case, the State/authorities have not afforded any opportunity of hearing to the petitioner to put forward his case asto why the deduction from the gratuity amount being excess amount cannot be made. The contention of the leamed counsel for the petitioner merits acceptance. 14. This Court, in the case of Vidyadhar Tmari Vs. The State of Chhattisgarh & Others , has held that the excess payment, if any, made to the petitioner, he was not af fault and the amount received by him might have been used by adjusting himself accordingly treating the same as his salary. At this stage, directing recovery ofthe alleged excess amount from the pensionary benefits/gratuity amount of the petitioner will not be just and proper.. ~- —— 21994 (2) SGC 521 32006(1)MPHT105(CG) 15. In view ofthe foregoing and as admitted by leamed counsel appearing for both the parties, this petition is allowed in the terms of fhe order passed in the case of Vidyadhar Tiwari (supra) i.e. the impugned order dated 31.07.2006 and 24.04.2006/24.05.2006 (Annexure P/l and P/2) are hereby quashed. The petitioner is entitled to full pensionary benefits/gratuity amount without any deduction. However, the respondents may take recourse to Rule 65 of the Rules, 1976, if so advised, in accordance with law and basic principles of natural justice. No orderasto costs. r - -——---^__ Sd/- SatishK.Agnihotri Judge Amit