w singre Bench y lab L ' IN THE HIGH COURT OF CHHATI'ISGARH AT BILASPU -WP(S)N0 E06( [2008 / A‘nll Kumar Pandey, Son‘ of late Jagannath Prasad Pandey, aged , about 61 years, r/o- Puram Bastl, Pendra, P.O. Pendra District Bilaspur (C.G.) é) VERSUS 1 , RESPQNDENTS‘ 1. /5tate ofvcnhattisgarmhrough Secretary, Department of Publi gWOrks, D.K.$. Bhawan, Raipur‘ i (C.G.). A ‘ ‘ ' 2. The Chief Engineer, Public Works Department, Raipur. 3.. The Superintending Engineer,‘ Public‘Works Department, — Bilaspur Division, Biiaspur (c.G.) I The Executive Engineer, P.W.‘D., Division Pendra, .Pendra Road, Distt. Bilaspur; The Sup Divisional Officer P W D Sub DiViSion Marwahi a Distt Bilaspur 6. The‘Accountant General, Chhattisgarh, Raipur (C.G.\ The Joint Director, Treasury,Accounts & Pension, Bilaspur (.C.G.) v t 4. m WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA ,- c 5/ ) H!GH COURT OF CHHATTISGH AT BILASPUR ‘\ (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) N0. 5066 of 2&68 ' Anii Kumar Pandey PE?IT£ONER VERSUS REN ESPONDTs The State of C.G. & others. Shri Ratan Pushty, caunsel for the petitioner. Shri 'Pravin Das GA for the respondents 1 to 5 and 7. Shri Kashif Shaki! counsel for respondent No.6. Shri S.K. Tiwari, OIC of the case is also present. WRtT PETITEON UNDER ARTECLE 226i227 OF THE CON$TITUTION OF INDIA O R 9 E R (03.09.2609) With the consent of the counsei for the parties, the matter is heard finaiiy. 2. in the instant petition the petitioner has sought for the following reiiefs: 10.1 That this Hon’bte Court may kindly be pleased to set aside the recovery of Rs. 335551- made by the respondents from the gratuity payable to the petitioner and direct the respondents to restore the same with 12 % thereon, and, That, this Hon’ble Court further may kindly be pleased to direct the respondent No.6 to pay GPF amount standing to the account of the petitioner and Lpayable to him forthwith with 12 % interest thereon, and 10.2 10.3 That, this Hon’ble Court may kindly be pleased to issue a direction to the Respondents to consider grant of regular scale of pay admissible to the petitioner on workcharged establishment treating his date of appointment as 1.4.1978 and not as 15.1 .85. That, this Hon’ble Court may further graciously be pleased to direct the Respondents to grant him two advance increments from the date it was payable to him on account of his adopting famiiy planning measures in terms of circular of the Government dated 29.1.79 Annexure P-4 10.4 jHand according re-fix his salary and pay him “all the consequential benefits accruing therefrom. At the out-set the counsel for the petitioner submits that he is not pressing the reliefs described in paragraphs 10.2 to 10.4 of the petition and he would confine his argument only to the relief mentioned in paragraph 10.1 thereof. He however seeks liberty to avail appropriate remedy available to him under the law regarding these reliefs, if occasion so arises. 3. <ZV: 4. Case of the petitioner is that he was an employee of Public Works Department and retired'from the post of field assistant. He submits that on 9.1.2008 an order (Annexure P-10) was issued by the Executive Engineer, PWD, Pendra Road in relation to recovery of Rs. 33,555 sought to be made from the gratuity of the petitioner. The said amount has also been recovered vide order . dated 31 .1 .2008 (Annexure P-1 1). Counsel for the petitioner submits that before passing the orders dated 9.1.2008 and 31.1.2008 no notice whatsoever was given to the petitioner nor was any opportunity of hearing given to him. He placed reliance on the decision of the Apex Court in the matter of Sahib Ram vs. State of Haryana and others reported in 1995 Supp t1) SCC 18 in which it has been held as under: 5. ‘However, it is not on account of any misrepresentation made by the appeflant that the benefit of higher pay scaie 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 tilt date may not be recoVered from the appellant. " 33 Ftmher reiiance has been piaced on the decision of this Court in the matter of Vidyadhar Tiwari vs.'State of C.G. and others reported in 2006(1) MPHT 105 in which it has been held that for the excess payment if any, made to the petitioner, when 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, direction for recovery of the alleged excess amount from the pensionary benefits of the petitioner wilt not be just and proper. 6. On the other hand counsel for the State submits that the impugned orders are in accordance with law and there is no illegality in the same. He however admits that no opportunity of hearing was given to the petitioner before passing the impugned orders. 7 ln view of aforesaid factual position of the case in hand and the law laid down by the Apex Court, the instant petition deserves to succeed and the orders impugned dated 9.1.2008 and 31.1.2008 (Annexure P-1D and P-11 respectively) are liable to be set aside. 8. The resuit is that the petition is allowed and the orders impugned are set aside. Amount so dedUctedshall be refunded to the petitioner with interest at the rate of 6 per cent per annum. Needless to say that the respondents can always take the recourse ‘ to Rule 65 of the Chhattisgarh Civil Services (Pension) Rules, 1976 if so advised in accordance with law after following basic principles of natural justice.‘ 9. Resultantly, petition succeeds. As regards the “not pressed reliefs” mentioned above, the petitioner is at liberty to avail the remedies available to him under theglaw. Sd/- ‘ Pritinker DiWaker i V Judge l