Petltioner HSGH COURT OF CHHAniSQARH: SILASPUR Writ Petition (Si No. 3735 of2W7 B.R. Rathore, Slo. Late Shri fiwa^h Ram Rathore, aged about 65 yeare, R./o. Kaudia, Tahsil Masturi, Distt. Bilaspur (CG). Versus Sespondents 1) State of Chhattisgarh, through Seoretary, Tribal Weffare Department, Govt. of Chhattisgarti, D.K.S. Bhawan, Raipur (CG). 2) The Joint Direotor, Accounts, Treasury and Pension, Bilaspur (CG). . 3) Assistant Director, Pension Reporting, Tribal Development, Bilaspur (CG). 4) Biook Education Offioer, Paii, Distt. Korba (CG). (Writ Petition under Article 226 of the Constitution of India] SB: Hon'ble Mr. Satlsh K. Agnihotri, J. Present: Shri M.K. Sinha, counsel for the petitioner. Smt. Smita Ghai, Panel Lawyer for the State. ORAL ORDER (Passed on 11.S-2008) /^' By this petition, the petitioner impugns the orders dated 4-12-2006 (Annexure P/11) and 2-12-2006 (Annexure P/12) whereby respondent- authorities have deducted a sum of Rs. 2,76,219/- towards excess payment from the retiral dues/gratuity amount of the petitioner. 2) The brief facts, in nutshell, are that the petitioner working as Assistant Teacher in the Education Department, after attaining the age of superannuation, retired from services on 12-3-2003 (Annexure P/7) He received the impugned orders dated 4-12-2006 (Annexure P/11} and 2-12- 2006 (Annexure P/12) issued by the respondent No.2 for recovery of amount of Rs. 2,76,219/- from his retiral dues vrftich has been paid to the •^- -2.- i1—.^<p petitioner during his service period in excess. Thereafter, the petitioner made a representation on 17-1-2007 (Annexure P/16) to the respondent No.2 stating that he retired from seroces on 12-3-2007 (Annexure P/7) and neither excess amount has been paid by him nor any notice regarding the same has been issued by the competent authorifr/ during ihe servlce period ofthe pefitioner. After his retirement the impugned ordere dated 4-12-2006 and 2-12-2006 (Annexures P/11 & P/12) have been issued, which are not just and proper. The represeniation dated 17-1-2007 (Annexure P/16) made by the petitioner to the respondent No.2, has not been considered. 3) Being aggrieved, the petitioner has filed this petftion praying that ifte impugned orders dated 4-12-2006 (Annexure P/11) and 2-12-2006 (Annexure P/12) deducting a sum ofRs.2,76,219/-fromthepensionary benefits of the petitioner without affording an opportunity of hearing to put forward case of the petitioner, to the petitioner is iliegai, arbitrary and unreasonabie. 4) Learned counsel appearing for the petitioner submits that there is no fauit on the part of the petitioner and the amount is paid to him in accordance with the pay scales, revised and fixed by the respondente from time to time. The respondente cannot recover the amount, aiready paid to the petitioner aftsr his retirement, that too without foilowing the principies of natural justice. Learned counsel further submits that the petitioner does not want So oress other reliefs on merit, except that the amount which has aiready been paid to the petitioner cannot be recovered from the retiral dues/aratuitv amount on account of excess payment made to the petitioner during that period wtthout affording an opportunity of hearing. Y •3- 5) On the other hand, leamed counsel appearing for the respondents/State subm'its that since the pay of the pettUoner 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 retirai benefits/gratuity amount of the petitioner, even on retirement without affordir^ an opportunity of hearing. 6) The Supreme Court in the case of Sahib Ram Vs. State of Haryana and others1, in para 5 has held as under: "5. However, it is not on account of anv misrepresentation made by the appellant that Uie benefit of the higher pay scale was given to him but by wrong construction made by the Principa! for which the appellant cannot be held to be at fault. Under the circumstances the amount paid tiil date may not be recoversd frpm the appeliant." 7) Learned counsel for the respondente/State relies on Rule 65 of fte Chhattisgarh Civil Sen/ices (Pension) Rules, 1976 (for short, "the Rules 1976") for the purpose of recovery and adjustment of Government dues. Rule 65 ofthe Rules 1976 reads as under: "Rule 65 Recoverv and adjustment of Govemment dues:- (1) !t shall be the duty of every retiring Government servant to ctear all Government dues before the date of his retirement. (2) Where a retiring Government servant does not clear the Government dues and such dues are ascertainabie;- (a) an equivalent cash deposit may be taken from him; or (b) out of the gratuity payable to him, his nominee or tegal heir, an amount equal to that recoverable on account of ascertainabie Govemment ddes shali be deducted" '1995Supp(l)SCC20 ^- Exptanation-1. The expression "ascertainable Govemment dues" includes balance of house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Govemment accommodation, over-payment of payand aiiowances and arrears of income tax deductible at source under the Income-tax Act, 1961." 8) The contention of the petitioner that even Tor exercising power under Rule 65 ofthe Ruies 1976, basic principies of natural justice and fair play in- action are required to be foliowed. In the present case, the State/authorities have not afforded an opportunity of hearing to the petitioner to put forward his case asto whv the deduction from the gratuitv araount beina excess amount cannot be made. The contention of the learned counset for the petitioner merits acceptance. 9) This court, in the case of Wdyadhar Tlwari Vs. The State of Chhattisgarh and otftere2, has he!d that for the excess payment, if any, made to the petitioner, he was not at fauit and the amount received by him might have been used by adjusting himself accordingly tr^ting the same as his saiary. At this stage, directing recovery of the aileged excess amount from the pensionary benefits/gratuity amount ofthe petitioner wili not be just and proper. 10) tn view of the foregoing and as admitted by learned counsel appearing for both the parties, this petition is ailowed of in the terms of ttie order passed in fiie case of Vidyadhar Tiwari (supra) i.e., the impugned orders dated 4-12-2006 (Annexure P/11) and 2-12-2006 (Annexure P/12) directing recovery of the amount allegedly paid to the petitioner in excess, are hereby quashed. The petitioner is entitled to full pensionary benefits/gratuity amount without anv deduction. However. the respondents mav take recourse to 2006 (I)MPHT 105 (CG) "3 ^ Rule 65 of the Rutes 1976, if so advised, in accordance with law and basic principles of naturai justice. No order asto costs. Sd/- Satish K. Asnihotri Judge Raju