^^•l^s^^ <5 ^^ ..••^'^^^- ^-•••""-^^Sw.y-"" -^-«» y c^- {^^2^— IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS W.P.fS)No. ^\a>^ /2010 Matwari Ram, S/o. Punaram, aged about 62 years, R/o. Takhatpur, Belsari, District Bilaspur (C.G.) VERSUS 1] State of Chhattisgarh, through: Secretary, Trial Welfare Department, D.K.S. Bhawan, Raipur, District Raipur (C.G.) 2] Commissioner, Tribal Welfare, Chhattisgarh, Raipur, District Raipur (C.G.) 3]' Assistant Commissioner, Trial Welfare, Bilaspur, District Bilaspur (C.G.) ^' 4] Collector, Tribal Welfare, Bilaspur (C.G.) 5] Joint Director, Kosh, Lekha & Pension, Bilaspur Division Bilaspur, District Bilaspur (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA /"-^•-•^ ^ i/.,f ..-^ 1 '& - .i' ^ '<;:-^ 'i^S' /\~^- ?^ HIGH_COURT_OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.4394 OF 2010 PETITIONER Matwari Ram n RESPONDENTS Versus State of Chhattisgarh & Others (Writ Petition under Article 226 of the Constitution of India) Single Bench : hlon'ble Shri Satish K. Agnihotri, J. Present:- Shri Manoj Paranjape, Advocate for the petitioner. Shri P.K. Bhaduri, Panel Lawyerforthe State. ORDER (ORAU (Passed on this 11th dayofJanuary, 2011) 1. Heard learned counsel for the parties. 2. By this petition, the petitioner seeks quashment of the order dated 09-07-2010, passed by the Assistant Commissioner, Tribal Welfare, Bilaspur, by Which it was directed to recover an amount of Rs.41,533/- and furtherto finalize the pension, disburse the amount of gratuity and leave encashment to the petitioner with interest. 3. The facts, in nutshell, as projected by the petitioner, are that the petitioner was initially appointed on the post of Waterman (uf^ciiscii) in 1971. The petitioner has attained the age of superannuation on 31-05-2009 (Annexure P/2). After retirement of the petitioner, the retrial dues have. not been released for which the petitioner approached the various authorities. However, all of a sudden by the impugned order, the Assistant Commissjoner, Tribal Welfare, Bilaspur, directed the Joint Director, Treasury, Accounts and Pension, Bilaspur, to recover an amount of Rs.41,533/- from the retrial dues of the petitioner. Thus, this petition. 4. Learned counsel appearing for the petitioner submits that the petitioner was not afforded opportunity of hearing to explain about the payment made to him. Thus, the impugned order is vitiated for want of compliance of the principles of natural justice --'^ 2 q?> 7. and fair play in action. Learned counsel further submits that there is no fault on the part of the petitioner and the amount was paid to him in accordance with the pay scales, revised and fixed by the respondents from time to time. The reason assigned for recovery is not sustainable, as there was no fault on the part of the petitioner. The respondents cannot recover the amount, already paid to the petitioner without following the principles of natural justice. Learned counsel appearing for the respondents submits that tiy mistake extra wages were granted fo the petitioner, thus, the above recovery. If the excess payment was made to the petitioner, the same can be recovered at the time of settlement of retrial dues. 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 orwithout affording an opportunity, is condemned. The issue asto whether recovery of excess payment for no fault of the employees can be made without following the principles of natural justice is no longer res integra. The same has been settled by the Supreme Court in various decisions. In Syed Abdul Qadir and others v. State of Bihar and others Hon'ble Three Judges of the Supreme Court, having considered all the aspects of the matter and the decisions rendered by the Supreme Court in the past, observed as under: "57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principles for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. ' (2009) 3 SCC 475 '•';'-?^ 'vA "•«, ~^t t, 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising Judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment recejved was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matfer being in the realm ofjudicial discretion, courts may, on the fact and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, Shyam Babu Verma v. Uniion of India, Union of Indian v. M. Bhaskar, V. Gangaram v. Director, Col. B.J. Akkara (Retd.) v. Govt. of India, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and BiharSEB v. Bijay Bhadur." 8. This Court as well as the Supreme Court in a catena of decisions, time and again reiterates that no recovery of excess payment for no fault of the employee can be made without following the principles of natural justice. This Court in Ramchandra Kurup v. State ofC.G. & Others and other connected matters, observed as under: "19. A common thread running into the above decisions of the Supreme Court is that, for recovery of excess payment of emoluments/allowances, there are three conditions wherein the excess payment hay be recovered, namely (i) excess payment was made on account of misrepresentation or fraud on the part of the employee, (ii) the employee had knowledge that the payment received was in excess, and (iii) the error was corrected within a short span of time of wrong payment.,........" 9. In view of foregoing, the writ petition is allowed. The impugned order dated 09-07-2010 (Annexure P/1), directing recovery of Rs.41,533/- on a account of excess payment made to the ,i petitioner, is hereby quashed. The respondent authorities are directed to settle the retrial dues of the petitioner in accordance wjth law. No order asto costs. Arun Sd/- Satish K. Agnihotri Judge W.P.(S) No.3663 of2009 (decided on 23rd November, 2009)