^^ HIGH COURT OF CHHATTISGARHAZBJLASPUR Writ Petition (S) No. 1586 of2009 PETITIONER ty- Syed Zulfiqar Ali, S/o late Shri S.N. Ali, Aged about 66 years, R/o Behind Masjid, Mahadev Ward, Kanker, District Kanker, Chhattisgarh. VERSUS 1.. State of Chhattisgarh througli Seeretary, Department of Tribal Welfare, DKS Bhawan, Mantralaya, Raipur CUhattisgarh. 2. Joint Director, Treasury, Account and Pension, Baster Division, Jagdalpur, Chhattisgarh. 3. Block Education OtScer. Kanker, Distt. Kanker. Chhattisgarh. (W-RIT PETITION UNDER ARTICLE 226 OF IHE CONSTrTUTtON OF INDIA) (SB: Hon'bie Alr. Sattsh K. Asnlhotri,J^ : Shi-i Pawaa Shrivastava, Advocate fbr the petitioner. SlTri Anin Sao, Oovt. Advocate for the State. ORAL ORDER (Passed OH 26th day ofMarch,2009) With fhe consent offhe parties, the matter is taken up for heariag, finally. 1. By this petition, the petitioner impugiis the order dated 28.02.2006 (Annexure P/l) passed bythe respondent No. 2, whereby it has been directed to recover/adjust the excess ainount ofRs. 34.128/- from the retiral dues of the petitioner. 2. The brieflacts, in nutshell, are that the petitioner while working as Assistant Teacher, retii-ed on attaining the age of superannuation. The petitioner ^s.. received the impugtied order dated 28.02.2006 (Annexiire P/l) passed by the respondent No. 2, whereby it has beeii directed to recover/adjust tlie excess aniount which has been paid to fhe .petitioner. 3. Being aggt-ieved, flie petitioner has filed this petition, stating that no recovery can be made without atfording aa opportunity of hearmg to fhe petitioner after retii-ement; as such the order is illegal, arbitrary and unreasonable. ^ ^l \ 4. Leamed counsel appeanng tbr the petitioner submits that there is no fault 011 the part ofthe petitioner aiid fhe ainount was paid to fliem in aceordaiice with the pay scales, revised and fixed by the respondents fi-om tiine to time. The respondents cannot recover the amount, already paid to the petitioner after lus retirement, that too without fbllowing the principles ofnatural justice. Leamed counsel farther submits that the petitioner does not want to press other reliets on merit, except that the amount which has already been paid to the petitioner cannot be recovered from the retiral dues/gfatuity amount on account of excess payment made to the petitioner during that period without afibrding an opportunity ofhearing. 5. On the other hand, leained counsel appearing for the State/respondents submits fhat since the pay of the petitioner was fixed contrary to the provisions and on scrutiny, it was found that excess amount has been paid, the same can be recovered from the retiral benefits/gratuity amount of the petitioner, even on retirement without afiording an oppoilunity ofhearing. 6. The Supreme Court, in the case of Sahib Ram Vs, State ofHaryana and others , in para 5 has held as under: "5. However, it is not on account of any misrepresefitation made by the appeliant that the benefit ofhigher pay scale was given to him but by wrong constmction made by the Principal for which the appellant cannot be heid to be at fault. Under the circunistances the amount paid tili date may not be recovered from fhe appellant." 7. The Supreme Court, in the matter ofP. Tulsidas and otliers v. Govermnent of A.P. and others", observed that the benefit accrued earlier by way ofgrantof lugher pay or revised pay, eannot be taken away as the same is violative of Article 14 and 16 ofthe Constitution oflndia bemg arbiti-ary, unreasonabie ^ and expropriatory. 8. This Court, in the case of Vidyadhar Tiwari Vs. The State of CUhattisgarh & Othere , has held that the excess payment,-ifaay, made to the petitioner', he .was not at fault and fhe amount received by him might have been used by adjusting himself accordingly treating the same as his salary. At this stage, 11995Supp(I)SCC20 2ArR2003SC43 •i20060)NfPHT]05(CG) Sahu ^ directing recovery of ttie alleged excess amount from the peiisionary benefits/gratuity amount offhe petitioner will not be just and proper. 9. Bi view ofthe foregomg ttus petition is allowed in the terms ofthe order passed in the case ofVidyadhar Tiwari (supra) i.e. the impugiied order dated 28.02.2006 (Annexure P/l) regarding recovery of amount from the gratuity and other dues ofthe petitioner on account of excess payment, is hereby quashed. The petitioner is entitled to lull peiisionary benefits/gratuity amount without any deduction. Ifftie amount has been recovered, the petitioner is entitled to fhe said amount wifh interest at Ihe rate of 6% per amium. However, it is Qpen to the respondents to take recourse to Rule 65 ofthe Rules, 1976, ifso advised, in accordance with law followmg basic principles ofnaturaljustiee. No order asto costs. 10. Consequeiitly, pending applications staiid disposed of SA'^<Ateo^ ^ ^^ 8attsB^d^