COURT OF CHHATTISGA'RH AT BILASPUR PETITIONER RESPONDENTS WR1T PETITION (S) No. 2440 of2008 Rangbhaj Ram S/o. Bechan Ram, aged about: 64 years. R/o. Murkaul, Post Vireiidra Nagar, Tahsil: WadrafNagar, District Sur^ija (C.G.) VERSUS : 1. State of Chhattisgarh, throiigh: Secretary, Tribal Welfare Department, D.K-S, Bhawai^ Raipur, Disti-ict Raipur (CG) 2. Assistant Coimiiissioner, Tribal Weltare Aiiibikapur, District Surguja (C.G.) 3, ' Assistant Director, Kosh Leklia, & Pexisio$i, Bilaspur Division, Bilaspur (C.G.) 4. Joint Director, Kosh Leklia & Pemioii Bilaspur, District Bilaspur (C.G.) 5. Accomitatit Geiieral, Cliliattisgarii (<^w ^ ^^ qrtsrr 12/97) Raipur, Raman Mandir, Ice Factor}-' Riilding, Fafadih Chowk, Raipur, District Raipur (C.G.) 6. Block Education Officen Wadra&agar, Surguja, District Surguja (C.G.) WRIT PETmON UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'Ue Shri Si^tish K. Agmliotri, J. Present: Shri ManoJ Paranjpe, Advocate for the petitloiier. Sliri Afay Dwivedi, Deputy Goveniiiient Advocate fbrthe State/ respoiident No. 1 to 4 and 6. ORALQBDER (Passed on 29m day of April, 2008) By this petition, the petitioner impugns the order dated 24.10.2007 issued by the respondent No. 4 (Amexiire P/2) aiid order dated nil (Aimexiire P/3) issued by the respondent No. 3 for recovery of a sum of Rs. 3J2,048/- irom the retiral dyes towards excess payment made to the petitioner 011 account ofwrosig fixatioii of salary ofthe petitioner. The brief facts, m nutshell, are that the petitioner was initially appomted on the post of Assistant Teacher in the Tribal Welfare Department on 16.03.1964. He retired from service on 31.12.2006 as Assistant Teacher. Vide order dated 24.10.2007 issued by the respondent No. 4 (Annexiire P/2) it was ordered to recover a sum ofRs. 3,52,048/- from the retiral dues ofthe petitioner. '^ 6. Being aggrieved, the petitioiier has fiied tliis petition praymg that the impugned order dated 24.10.2007 (.dLnnexiire P/2) and order dated tiil (Annsxure P/3) for recovery ofa sum ofRs. 3,52,048A deductmg excess amousit from the pensionary benefits without affordiiig aii opportimity ofhearmg to put fbrward his case, is illegal, arbitraiy and unreasonable. The petitioner made representation to t3ie respondent No. 3 praying that he has iiot received any excess payment and the recovery ofthe above-said amount may not be made. Leamed counsel appearing for the petitioner submits that there is no fault 011 the part ofthe petitioner and the amount is paid to him in accordaiice,with the pay scales, revised and flxed by the respondents from time to time. The respondents camiot recover the amoimt already paid to tlie petitioner after his retiremeiit, that too without following the principles of natural justice. Leamed coimsel further submits that the petitioner does not want to press other reliefs 011 merit. except that the amount which has already been paid to the petitioner camiot be recovered from the retiral dues/gratuity amount on account of excess payment made to the petitioner during that period without affording an opportunity ofheariag. On the other hand, leamed counsel appearmg for the respondents/State submits that since the pay ofthe petitioner was fixed contrary to the provisions and 021 scratmy, it was fouiid that excess amount has been paid, the same can be recovered from the retira! benefits/gratuity amount of the petitioner, even on retirement without afibrding an opportunity ofhearmg. The Supreme Court, m the case ofSahib Ram Vs. State ofHaryana and others1, 'm para 5 has held as under: "5.....However- it is not cn accoimt of aiiy misrepresetitation made by thc appellant that the benefit of higher pay scale was given to him but by wrong constmction made by the Prmcipal for which the appellant carmot be held to be at fauit, Uxider the circumstances the amount paid till date may not be recovered from the appellant." Leamed counsei for the respondents/State relies on Ryle 65 of fhe Chhattisgarh Civil Services (Pension) Rules, 1976 (for short 'the Rules, 1976') forthe purpose ofrecove^ and adjustment ofGovemment dues. Rule 65 ofthe Rules, 1976 reads as under: "Rule 65 • Recovery and adjustment ofGovemment dues:- (1) It shall be the duty of every retirmg Govermiient servant to clear all Govemment dues before the date ofhis retirement. 1 1995 Supp (l) SCC 20 S.6., (2) Where a retiring Govemmeiit servant does not clear the Govenmient dues and such dues are ascertamable:- (a) an equivalent cash deposit may be taken from him; or (b) out ofthe gratuity payable to him, his nominee or legal heir, an amouiit equal to that recoverable on account ofascertainable Goveiimieiit dues shall be deducted. Explanation-1. The expresslon 'ascertainable Govemiiient dues' mcludes balance of house buildmg or conveyaiice advance, arrears of rent and other charges pertaming to occupatioii of Govenimeot Acconmiodation, over-payment of pay and allowasices and an'ears of moome tax deductible at source imder the Iticome Tax Act, 1961" 8. Tlie contention ofthe petitioner that even for exercising power iiiider Rule 65 of the Rules- 1976, basic principles of iiatural justice and fair play iii action are required to be followed. In the present case, the State/authorities have not affbrded asw opportunity of hsartng to the petitioner to put for^?ard his case asto why the deduction from the gt'atuity amoimt being excess amoimt camiot be made- The contention ofthe leamed cousisel for the petitioner merits acceptance. 9. This Court, m the case of Vidyadhar Tiwari Vs. The State of Chhattisgarh & Others2, has held that the excess payment, if any, niade to the petitioner, he was not at fault aiid the amount received by hiiii might have been uaed by adjusting himself accordmgly treating the same as his salary. At this stage, directing recoveiy of -the alleged excess amount from flie peiisionary benefits/gratuity aoiount ofthe petitioner wiil not bejust and proper. 10, In view ofthe foregoing and as admitted by leamed counsel appearmg for both the parties, this petitioii is ailowed in the tenns ofthe order passed m the case of Vidyadhar Tiwari (supra) i.e. the impugied order dated 24.10.2007 (Aimexure P/2) and order dated nil (Amiexiire P/3) regarding recovery ofRs»3J2-048A from the retira! dues of the petitioner are hereby quashed. The petitioner is entitled to flill pensionaiy benefits/^atuity amount without any deduction. However, it is open to the respondents, if so advised, to take recourse to Rule 65 of the Rules, 1976, in accordance with law aiid basic prmciples ofnaturaljustice. No order asto costs. —-— —-——— Sd/- Satish K.Agnihotri Judge Aniit '• 2906 (1) MPHT 105 (CG)