^&^ ^^^s^-"""" zn ^ erzr p.» ?f IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (W.P. (S) No. ..^.r,,:..^L-l...../Q9) PETITIONER L^^..^^^- Raghuveer Sai'Late Mohan Sai Kanwar; aged about - 63 year; VJo. Village - Baro; Post - Konpara Block - Pharsabahar; Tahsil - Pharsabahar; Distt. - Jashpur (C.G.) VERSUS RESPONDENDS 1. CL^W e"^A^ 1^^ 2. P..6 3. State of Chhattisgarh, Through: Secretary Tribal Welfare Department, D.K.S. Bhavan, Raipur (C.G.) The Assistant Commissioner, Tribal Welfare Department, )ur Distt- Jashapur (C.G) The Divisional Joint Director, Treasury Accounts & Pension Clffice, Bilaspur (C.G.) The Block Education Officer, Pharsabahar; Tah. - Pharsabahar; Distt. - Jashpur (C.G.) WRIT PETITION UNDER ARTICLE 226 OF CONSTITUTION OF INDIA ~—ad;^ix'j ffaj:Q_subjiuLt_asunder :- 4. HtGi COURT OF CHHATTiSG. 1LASPUR ^) WRD- PtTlTSON.(S) N0.2554 OF 200S PETITIGNER iSPONDENTS A^.?1..-;* Raghuveer Sai Versus State of Chhattisaarh & Others A^,^-, ^•"Sfl1 ^? <S.^.. SWr't Detffion uncier Articls 22t»ot tne uonstitutscn ot inQia) Sinsie Bench : Hon'bie Shri Satish K. Agnihotri, J. Present:- Stihri Somkani verma, counsel for the petitioner. SSS^y A \? C^.».;,n^^y St—n^.!! -rfAi-"-^r •^^.•s..%4.<5*< s/^.v. ^jiuiidj, i'"suc« h.ict-iiii'v^i svi i.ia'^'iSliCt!,-!:;. ORDER (QWLi (Passed on this 24"'' day of October, 2009) Vrfith the consent of learned counsel aosearing for Shs parties. the oetftlon is heard finailv. Bv this oetition, the osctloner imDuans the ordsr datsd 31-12-2008 (Annexure P/1) passed by the rsspondent No.3, whersby s sum of Rs.55,843" has been deducted hoiding it to be excess paymeni mad®to the ostitioner. from 'nis rstlral dues. Laarned counsei appearing for ths petitionsr submits that the issue asto whether recoveiy of excess payment ean be made withoui TOiiowing prsnciples of naturai justlce is no longer res integra, the same has been ssttied bv the Supreme Court in Sshib Ram v. State oi Haryana and others', and further followed ay this Court in V'dyadhar Twari v. T'ne Siate af Chhatiisgam & Others1' & V'dya Shankar Tiwari v. Staie of M.P. ,'!VGW State of ChhaSJsgarh) snd others". in the instant case, the Impugned order has wiihout sffordlng any.opportunity csf hsaring to ths petitioner. Lsarned ccunssl aDoearing for the Stata submlts that 'rt is not ciear asto whether opportunifry' of heanng was afforded sefore the Imouaned order was passed. Howsver, tsarned couhsei reiles on Suie 85 of the Chhsttisgarh Civii Services (Penslon) Rules, 1978 (for short 'ths RuSes, 1976') for the ouroose of recoven? and sdjustment of Governrrient dues. _1S8SSupp(1)SCC2Q ' 2006 (1) WIPHT 105 (CG; ~ 2006 (2) MPKT 31 (CG) 7. -•2-- The aiieged notics dated 21-10-2008 (Annexurs - R/2) was gwen to the Deiitioner for obtainlns undertakina from the Defiiioner, oniv aiter ^;f .rffiAS-".?-^^n4 ; ^. '^-^ ^..'"'rsA^ T^.i-i L-^'H-^r •'i/a'S'^.^ ;n-^ ..."^ A ,^^H§£^-s!n**i.'*•?• ",A fSTirsmsni i.s. •^"i-o-^uuo. i ns iSISSr Q^ISQ ^'l-"!u~^UUO CSFsi heid as notics, as the said ietter mentsons that opportunity of hearing has been Drovided to the Detitioner. On a auero asto whether there is anv otner notice befors this communicstton dated 21-10-2008 was issued, Searned counssi aooearing for the State is not in a oosition to oroducs anv notlce/document in this regard. Thus, ths communlcatlon daied 21-10-2008 does not come wiihin the flurview of show causs notice, ss required under the principtes of iust 'he second of the searned counseS for the State is thst the petitioner has gh/en undertaking is of no reSevance, as the undertakina was obtained on 23-10-2008 after the petitioner had already reiired on 31-8-2008. Thus, the contention of the learned counsel forthe State desswes to be rejecteel. The contenflon of the csationer that even for exerelsing oower under Ruie 65 o* the Ruies, 1976. basic principles of natural justice snd fair piay in action ars required to be Toliowed. !n ths present case, it appears that the State/authorities havs not afforded anv opportunitv' of hsaring to the petltloner to put fonvard his case asto why the deduction from the sratustv amouni being excess amount cannot be made. The contention of the tearned counsei for the oefitioner merits scceptsnce. This Court, in Vsdyadfiar Tswari (supra), has heid that the excess payment, if any, made to the petitioner, he was not at fauit snd the amount rece'ived bv him might have been used by adjusting himself accordlngiy treatlng fhe sams as hls saiar»-. At this stage, directing recover/ of the alleged excess amount from the pensionary benefits/aratulhf amount ofths oetitioner wili not be iust and proper. In Syed Abdui Qadir v. of Bihar & Others', th< S.upreme Court has obsep/ed ihat sxcess paymsnt of emoluments./ aiiowancss cannot be recovered if ths excess amount was not oald on account of any misrepresentation or fraud on the part of the emplovee and if such sxcess pavment was made bv the empioyer by applying a wrong principie for calcuiating fhe pay/atlo'iivances or on (2009)33GC4/b 3- €> Qowri ihs basls of a oarticuiar intsrorst subsequentiy found to be erroneous. ?. it is not the case of She resoondents that the excess Dayment has been made to the petitioner on sccount of any mis-representation or fraud on the oart of the pstitioner. The excess oavment miaht hsve been made bv wrong caicuiatton or •vrona intsroretatlon of ths provisions of lavi?, if any. T'nus, the petitioner Is anntied to fuil retira! benefits without any dsduction/adjustment of excsss payment and the employer is not eniitied io recover any excess amount from &ie retiral dues of ths petltioner, particuisrly sfter a period of fivs years of retirement. !0. in vsew of foresoina and as admitted b'v leamed counsei aDpearina for the parties, thss petition is ailowed In terms of the ordsr psssed by this Court in Vidvadhar Twari (sifora} i.e. the IffiDuaned order datsd 31-12-2008 (Annexure P/1) deducting a sum of Rs.65,843/- from ths retirai dues of the Dctmoner is herebv quashed. Ths petitloner is sntitied to full penslonary benefits/gratuity amount v/ithout any dsduction. if the sasd amount is alreadv deducted from the gratultv. the same shaii be payabie to the petitioner with simpie intsrest @ 6% per annum from the date it became due tii! the payment is mada. No order astocosts. -___ Sd/- Satish K. Agnihotri Judge