(j) ,fl gmmi %E§é$%a IN THE HON’VBVLE HIGH COURT OF CHHATTISGARH AT BILASPUR w.P.(s') No. Rm /2010 g {Mithla Prasad Tiwari, S/o Late Shri Dhuran Prasad Tiwari, aged about 65 years, R/o Village — Tokapal, Post Distt. Bastar (C.G.) PETITIONER Tokapal, Bazarpara, VERSUS RESPONDENTS : 1. State ofChhattisgarh Through :— The Secretary, Education Department, D.K.S. Bhawan, Raipur (C.G.) Joint Director, Treasury Account 8L Pension, Bastar Division Bastar, (C.G.) 2.Divisiona1 WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. x\ gy? HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) N0. 1921 0f2010 PETITIONER : Mithla Prasad Tiwari. VERSUS RESPONDENTS : State of Chhattisgarh & Another. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon’ble ShriSatish K. Agnihotri, J. Present: Shri Ajay Shrivastava, Advocate for the petitioner. Shri P.K.Bhaduri, Panel Lawyer for the State/respondents. ORDER ORAL (Passed on 05“ day of January, 201 1) 1. The petitioner, while working as Head Master, retired from service on attaining the age of superannuation on 29.11.2006. Thereafter, Vide the impugned order dated 24.07.2007 (Annexure P/l) a sum of Rs. 15,258/- was recovered from the retrial dues of the petitioner on account of excess payment made to the petitioner. : ... 2. Shri Shrivastava, learned counsel appearing for the petitioner submits that the petitioner was not given any opportunity to explain about the alleged excess payment made to him and Vide the impugned order, a sum of Rs. 15,258/- was recovered from the retrial dues of the petitioner. Thus, the action of the respondent authorities is vitiated for want of compliance of the principles of natural justice and fair play in action. He further submits that there is no fault on the part of the petitioner and the amount is paid to him in accordance with the pay scales, revised and fixed by the respondents from time to time. No reason has been assigned asto on which count the excess payment, if any was made. The respondents cannot recover the amount, already 1 1995 Supp (1) scc 18 2 2006 (1) MPHT 105 (CG) 3 2006 (2) MPHT 31 (CG) 4 AIR 2003 sc 43 5 WP (S) No.3663 of2009 decided on 23-1 1-2009 \ @ paid t0 the petitioner, after his retirement, and that too, Without following the principles of natural justice. Shri Bhaduri, learned Panel Lawyer appearing for the State/respondents submits that it is not clear from the pleadings asto whether or not, any show cause notice or opportunity of hearing was afforded to the petitioner before the recovery of excess payment was made. The issue asto whether recovery of excess payment can be made without following principles of natural justice is no longer res integra, the same has been settled by the Supreme Court in the matter 0f Sahib Ram v. State of Harycma and others], and further followed by this Court in the matter of Vidyadhar Tiwarz‘ v. The State of Chhattisgarh & 0thers2 and Vidya Shankar Tiwari v. State ofMP. (Now State of Chhattisgarh) and 0thers3 and thereafter followed in several decisionsi The Supreme Court, in P.Tulsidas & Others v. Government ofA.P. & Others4, observed that the benefit accrued earlier by way of grant of higher pay or revised pay, cannot be taken away as the same is violative of Article 14 and 16 of the Constitution of India being arbitrary, unreasonable and expropriatoryi This Court in Ramchandra Kurup v. State ofC.G. & 0ther§5 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 \ \ \ 3 conditions wherein the excess payment may 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 ...... ” In View of the foregoing and as admitted by learned counsel appearing for the parties, this petition is disposed of in the terms of the order passed in the case of Vidyadhar Tiwarz‘2. i.e. the impugned order dated 24.07.2007 (Annexure P/l) regarding recovery of amount from the gratuity and other dues of the petitioner on account of excess payment, is hereby quashed. The petitioner is entitled to full pensionary benefits/gratuity amount without any deduction. If the amount has been recovered, the petitioner is entitled to the said amount with interest at the rate of 6% per annum, However, it is open to the respondents to t’ake recourse to Rule 65 of the Chhattisgarh Civil Services (Pension) Rules, 1976, if so advised, in accordance with law, after following basic principles of natural justice. It is further made clear that in the event before recovery of the alleged excess payment was made, a show cause notice wasissued and reply was filed by the petitioner to the same, the case of the petitioner may not be treated to be covered by the decision of this Court in Vidyadhar Tiwarf. Sd/- SATISH K. AGNIHOTRI Judge