Cf [r^]^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. (SLNO.,_S"lSi3_ _/^009 Petitioner Versus Respondents ^•^. •T/v'.-'.s^' /" ^,'Nx' ^y/' ^/ 3. 4. ^Nilambar Nande, Aged about 64 years, S/o Late Shri Brij Mohan Nande, Retired Assistant Teacher, R/o Tapakara Road, Near play ground, Kunkuri, Distt. Jashpur Nagar- (C.G.) State of Chhattisgarh Through : The Secretaiy Scheduled Tribe and Scheduled Caste Development Departraent, D.K.S. Bhawan Raipur, Dist : Raipur-fC.G.) The Commissioner Scheduled Tribe and Scheduled Caste Development, Chhatttisgarh Raipur, Distt. Raipur-(C.G.) The Assistant Commissioner, Tribal Development, Jashpur-(C.G.) The Joint Director, Funds Accounts and Pension Bilaspur-fC.G.) Ls^._ WRIT PETITION U/A 226 OF THE_CONST!TUTIQN OF.INDIA 1. Particulars of the Petitioner. HIGH CQURT OE CHHATTISGARH AT BILASPUR WRTT PETITION (S) No. 5189 of2009 PETtTtONER RESPONDENTS 'NiiambarNande. VERSUS State ofCaihattissarh & Otfaa-s. WRIT PETITION U/A 226 OF THE CONSTmjTION OF INMA iB: Hon'ble Shri Satish K. Asnaiotri, J, Present: Shri Hauuman Prasad Agrawal, Advocate forthe petitioner. Sbri M.P.S.Bhatia, Depuly Govemment Advocate forthe State/respondeats. OKDERCORAL) (Passed on 1 lal day of November, 2009) Heard leamed counsei for the parties. Tlie petitioner impugns Ifae order dated 16 August, 2007 (Aanexure P/2) on the groimd that an amount of Rs. 30.724/- has been directed to be recovered from fhe retiral dues ofthe petitioner. 2. Shri Agrawal, leamed eounsel appearing for the petitiona' submits that the issue asto whether recovery ofexcess payment for no fault ofthe employee can be made without following prineiples ofnaturaljustice is no longer res integra, fhe same has been settled by flie Supreme Court in the matter ®f Sakib Ram v. State ofHaryana and other^, and further followed by this Coiut in the matter of Vidyadhar Ti-wari v. The State ofChhattlsgwh & Others^ and Vidya Shankar Tmari v. State of MJ>. (Naw State of Chhattisgarh) and others^. In the mstant case, the impugned order bas been passed without affording any opportunity ofhearins to the petitionet. Shri Bhatia, leamed Deputy Govemment Advoeate does not confa-overt the allegation that no opportunity ofhearing was afiwded befotie tbe impugied orders were passed. However, he relies on Rule 65 ofthe Chhattisgarh Civil Services (Pension) Rules, 1976 (for short fhe Rules, 1976') for the purpose ofrecovery and adjustment ofOovemment dues. ^ The contention ofthe petitioner that even for exercising power under Rule 65 of the Rules, 1976, basic principles of natural justice and fair play in action are required to be followed. In fhe present case, the State/authorities have not afforded any opportunity of hearing to 1fae petitwner to put " 1995 Sapp (1) SCC 20 2 2006 (l)MPHT 105 (CG) ^uuo (^,) ivirril si V^'Jj ^ 7. forward his oase asto whv the deduction from tte gratuitv amount beins excess amount cannot be made. The contention ofthe leamed counsel for the petitioner merits acceptance. This Court, in the case of Vidyadhar Tiwari (supra), has held that the excess payment, if any, made to the petitioner, he was not at fault and the amount received by him might have been usad by adjusting himself aecordingly treating the same as his salary. At this stage, directing recovery ofthe alleged excess amount fi-om the pemionary benefits/gratuity amount ofthe petitionerwill not bejust and proper. la Syed Abdul Qadir & otkers v. State ofBihar & Otkers, the Supreme Court observed that ea;ess paymeirt of emoluments/allowances cannot be recovered if the excess amount was not paid on account of any mis- representation or fraud on the part ofthe employee and if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowances or on the basis of a particular inteqwetation ofmle/order, whieh is subsequently found to be erroneous. It is not the case ofthe respondents that the excess payment has been made to the petitioner on account of any mis-representation w fraud on the part of the petitioner. The excess payment might have beai made by wrong calculation or wrong interpretation ofthe provisions oflaw, ifauy. In view of the foregoing aad for the reasons stated hereinabove, this petition is aiiowed. The impu@ied ordas dated 16 ,4u^ist, 2007 (Armexure P/2) regarding re<»veryof Rs. 30.724/- fromthe retiral dues of the petitioner is hereby quashed. The petitioner is entitied to fall pensionary benefits/gratuity amount without any deduction. If the said anwunt is aiready deducted, the same shall be payable to the petitioner with simple interest (@ 6% per annum. No order asto eosts. Sd/- Satish K. Agnihotri Judge 4 (2(Xiyi 3 SCC 47S Amit