1 c --.^- i ^^^, ^I^^S^ K^?w^<^^ ^m^ws ^s IN THE HIGH COURT OF CHHATTISGARH AT BILASIPUR W. P. (Sl No. <^^9^oF 2009. PETITIONER \> •^ ,< ^%^/ ^•••^w ^/..^•\^' o/'.-''^/. V 'r/-iKV •^ ^ ^/ RESPONDENTS: Shabana Parween, W/o. Sikandar Azam Khan, aged about 26 years, R/o. Mh. Hussain Rukmani Vihar, Behind L. I. C. Office Taj Masjid, Road Ward No. 10; House No. 317, Bilaspur, Distt. Bilaspur (C.G.) VER S U S 1) State Govt. of Chhattisgarh Through Secretary School Education Department D.K.S. ^~^ ^\ Bhawan, Raipur, District Raipur, Aj^ ,f$^%^ '^, -^ \\ /^ ^ • t -9 { S.^^i^EU »] ^^J^w/' 2) Block Education Officer, Baikunthpur, Distt. Korea, (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA so,\e'A API^ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (Sl No. 2392 of2009 ^. Petitioner Shabana Parween Versus Respondents State Govt. of Chhattisgarh & another Post for Judgment & Order on ^i"d3Ly of September, 2009 Sd/- Satish K. Agnihotri Judge ..-^ 31 HIGH COURT OF CHHATTISGARH : BILASPUR WritPetition (S) No. 2392 of 2009 Petitioner Shabana Panveen Versus Respondents State Govt. of Chhattisgarh & another WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA (SB: Hon'ble Shri Satish K. Agnihotri J.) Shri Somkant Verma, Advocate for the petitioner. Ms Smita Ghai, Panel Lawyer for the State/respondents. JUDGMENT BBO R D ER (Passed on this <5A""day of September, 2009) 1. The challenge in this petition is to the order dated 24.12.2008 (Annexure P/l), whereby recovery of Rs. 1,90,446/- (Rupees One Lac, Ninety Thousand, Four Hundred and Forty-sbc) was directed to be made from the pensionary/retiral benefits on account of excess payment made to late Kumari Shahida Parveen Siddque (maternal aunty of the petitioner). 2. The facts in brief are that the petitioner ( Shabana Parween) is nominee of late Kumari Shahida Parveen Siddque ( the deceased employee). The deceased employee was working on the post of Upper Division Teacher in the Education Department, under the office of the Block Education Officer, Baikunthpur, District - Surguja. She was promoted to the post of Head Master w.e.f. 1.1.1981. While working on the post of Lecturer late Kumari Shahida Parveen Siddque died on 23.5.2007. After death of Kumari Shahida Parveen Siddque, by impugned order dated 24.12.2008 (Annexure P/l) it was directed to the petitioner to give her consent. for recovery of Rs. 1,90,446/- towards excess ---------r <4^ payment. The petitioner has refused to give her consent on 4.3.2009 (Annexure P/2). Learned counsel appearing for the petitioner would submit that Kumari Shahida Par^een Siddque was not given any opportunity to explain about the payment made to her. Thus, the impugned order is vitiated for want of compliance of the principles of natural justice and fair play in action. Learned counsel further submits that there was no fault on the part of the aunty of the petitioner and the amount was paid to her in accordance with the pay scales, revised and fixed by the respondents from time to time pursuant to her promotion. The respondents cannot recover the amount, already paid to the aunty of the petitioner after her death, that too without following the principles of naturaljustice. Learned counsel appearing for the respondents/State would submit that on verification by the Joint Director, Treasury and Accounts, Bilaspur Division, Bilaspur, in the course of settlement of pensionary/retiral benefits, it was found that the excess payment of Rs. 1,90,446/- was made to Kumari Shahida Parveen Siddque during the period 1.4.1981 to 23.5.2007 (date of death), as she was granted the benefit of promotion to the post of Head Master, without there being any sanctioned post. Learned counsel appearing for the respondents/State would further submit that on 7.8.1991 (Annexure R/l), an entry was made in the ser^ice book of late Kumari Shahida Parveen Siddque to the effect that the benefit of promotion from the post of Upper Division Teacher to the post of Head Master was not permissible on the ground that no post was available, thus recovery was directed to be made. Since, while settling ofthe pensionary/retiral 7. -y benefits it was found by the authority concerned that the excess payment was made to the aunty of the petitioner, that can be recovered from the retiral/pensionary benefits. Having heard learned counsel appearing for the parties, though the facts in detail have not been given by either of the parties, but it is apparent that no show cause notice was issued to the deceased employee during her life time, even pursuant to the entry dated 7.8.1991(Annexure R/l), made in the ser^ice book. According to the respondents, the excess amount was paid to the deceased employee despite noting in the service record on 7.8.1991. It is not the case of the respondents that the petitioner has obtained the benefit of promotion and pay scale by committing sonie fraud. Thus, the nominee of the deceased employee is not liable to pay the excess amount, if any. The issue asto whether recovery of excess payment can be made without following principles pf natural justice is no longer res integra. The same has been settled by Hon'ble Supreme Court in Shyarn Babu Verina and others Vs. Union of India and others1, Sahib Ram Vs. State of Haryana and others2, P. Tulsidas and others Vs. Government of A.P. and others3, Syed Abdul Qadir and others vs. State of Bihar and others4, and further followed by this Court in Vidhyadhar Tiwari Vs. State of Chhattisgarh 8& others5, Parmeshwar Sahu & others Vs. State of Chhattisgarh & others6 and several other decisions. x{ (1994) 2 SCC 521} 2 { 1995 Supp (l) SCC 20} 3{A.I.R. 2003 SC43} 4 (2009) 3 SCC 475 5 { 2006 (1) M.P.H.T. 105 (C.G.)} 6 W.P.(S) No. 3677/2006 dt. 16.6.2009 8, 9. M This Court in the matter of Vidhyadhar Tiwari (supra), 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 saine as his salary; directing recovery of the alleged excess amount from the pensionary benefits of the petitioner, without affording an opportunity of hearing will not be just and proper. In Syed Abdul (supra), 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: a57. 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 principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 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 received 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 matter being in the realm of judicial discretion, courts may, on the facts 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. Union of India, Union of India v. M. Bhaskar, V. Gangaram v. Director, Col. B.J.Akkara (Retd.) v. Govt. oflndia, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur." 10. 11. ? Applying the well settled principles of law to the facts of the case, the contention of the respondents that Kumari Shahida Parveen Siddque was wrongly given the benefit of promotion, as there was no sanctioned post, it appears to be a mistake on the part of the Government and as such, the nominee of the deceased employee cannot be held responsible. The whole confusion is created on account of inaction, negligence and carelessness of the officers concerned, who did not adhere to the entiy dated 7.8.1991 (Annexure R/l), made in the sen/rice book of Kumari Shahida Parveen Siddque. There may not be sanctioned post, however, it is indisputable that the deceased employee has performed the work of promotional post. In the instant case, the impugned order has been passed without affording any opportunity of hearing to the petitioner. For the reasons mentioned hereinabove, the petition is allowed. The impugned order dated 24.12.2008 (Annexure P/l) is set-aside. The petitioner i.e. nominee of Kumari Shahida Parveen Siddque, is entitled to full pensionary/retiral benefits without any deduction, subject to adjustments of other amounts, if legally permissible. If the amount has already been recovered, the petitioner is entitled to the said amount with interest at the rate of 6% per annum. No order asto costs. Sd/- Satish K. Agnihotri Judge Thakur