HIGH COLTRT OF CHHATTISGARH AT BILASPVR WRIT PETITION (S) No. 6833 of; Milaa Ram Patwa S/o Late Shri Makhaalal Patwa, Occupatioii, Retd. Subedar (M) Aged about 61 Yrs Resident of Avintika Colony, Jagdaipur, Distt. Bastar (C.G.) \7ERSUS : 1. State of Chhattisgarii Through Secretary, Home Police D.K.S. Bhawaii, Mmtralaya Raipur (C.G.) 2. Director General of Police, Police Head Quarter, Raipur(C.G.) 3. Director, Treasury, Accounts and Pension, Pandri, Raipur(C.G.) 4. Superintendent of Police, Jagdalpur, Distt. Bastar, (C.G.) 5. Joint Director, Treasury, Accounts and Pension, Jagdalpur, Distt. Bastar (C.G.) WRTT PETmON L1NDER ARTICL.E 226 OF THE CONSTrTUTION OF INDIA SB: Hon'Ue Sjiri Satish K. Agnlhotn, J, Present: Shri Prakash Tiwari. Advocate for the petitioner. Miss Sunita Jain, Paael Lawyer forthe State/respondents. (Passed on 30m day of April, 2008) Bythis petition, the petitioner impugns the order dated 31.05.2006 (Annexure P/l) passed by the respondent No. 4 for recovery of a sum of Rs. 3,79,097/- fi-om the retiral dues towards excess payinent made to the petitioner on aecount ofwroni fixation ofsalaty ofthe petitioner. The brieffacts, m nutshell, are that the petitioner was imtially appointed as Daftari on 6.7.1966 infhe Police Department. The petitioner retired on 31.3.2006 from his service as Subedar (M). Vide order dated 31.05,2006 (Annexure P/l) issued by the respondent No. 4, the petitioner was directed to deposit the said amount ofRs. 3,79.097/- in ttie Treasury or to give consent for deducting fhe said amouat from his retiral dues. The petitioner has filed this petition praying that the impugned order dated 31.05.2006 (Annexure P/l) passed by the resppndent No. 4 for recovery ofa sum of Rs. 3,79,097 from tlie pensionary benefits witliout affordine an opportunity of hearing to put forward his case. is illeea!, arbitrary and iinreasonabie. 1&. Leamed counsel appearing for the petitioner submits that there is no fault on tiie part of the petitioner and the amoynt is paid to him in accordance with the pay i'%N'%;!s3";! :^f^^^^%|!^^^^^^^^^^^^^^^^^^^^^^K 5 5^ 6. 7. scales, revised and fixed by Ifae respondents from time to time. The respondents camiot recover the amount, ah-eady paid to the petitioaer after his retirement, that too without following the priaciples of natural justice. Leamed counsel further submits that the petitioner does not want to press other reliefs on merit, except that the amoimt which has already been paid to the petitioner cannot be recovered from the retiral dues/gratuity amount on account of excess payment made to the petitioner duriae t&at period without aifording an opportimily ofhearing. On the other hand, leamed counsel appearing for the respondents/State submits that since the pay of the petitioner was fixed contrary to the provisioas and on scmtiny, it was found that excess amount has been paid, the same can be recovered from the retiral benefits/eratuity amount of the petitioner, even on retirement without affording an opportunity ofhearing. Tfae Supreme Court, in the case ofSahib Ram Vs. State ofHaryana andothers , ia para 5 has held as under: "5.....However, it is not on account of any misrepresentation made by the appellant fhat tlie beaefit ofhigher pay scale was given to him but by wrong constmctioii made by the Principal for whicli the appellant cannot be held to be at fault. Under tlie circumstances tfae amount paid till date may not be recovered fromthe appellaat." Leamed counsel for the respondents/State relies on Rule 65 ofthe CUhattisgarh Civil Services (Pension) Rules, 1976 (for short 'the Rules, 1976') for the puipose ofrecovery and adiustment ofGovemment dues. Rule 65 ofthe Rules, 1976 Feads as under: "Rule 65 - Recoverv and adjustment ofGovemment dues:- (1) It shall be the duty of every retiring Goveniment servant to clear all Govemment dues before the date ofhis retirement (2) Where a retiring Govemment servant does not clear tlie Govenuiient dues aiid such dues are ascertainable:- (a) an equivalent cash deposit may be taken from him; or (b) out ofthe gratuity payable to him, his nominee or legai heir, an amount equal to tbat recoverable on aceount ofascertainable Govemment dues shall be deducted. Explanation-1. T&e expression 'ascertainable Govemment dues' includes balance of house building or eonveyaiice advaace, an-ears of rent and other charges pertaining to oceupation of Govemment Acconuiiodation, over-payment of pay and allowaaces and arrears of income tax deductible at source underthe Income Tax Act, 1961" ' i995 Supp (1) SCC 20 The contention ofthe petitioner that even for exercising power under Rule 65 of tfae Rules, 1976, basic principles of natural justice and fair play in action are required to be followed. In the present case, the State/authorities have not afforded any opportunity of hearing to the petitioner to put fom'ard his case asto why the deductioa from the gratuity amount being excess amount cannot be made. The contention ofthe leamed counsel forthe petitionermerits acceptance. 9. This Court in the case of Vidyadhar Tiwari Vs. The State of CUhattisgarh & Others , has held that fhe exeess payment, if any, made to the petitioner, he was aot at fau!t and the amount received by hiiii might have been used by adjusting himself accordingly treating the same as his salan'. At this stage, directing recovery of the alleged excess amount from the pensionan' benefits/gratiiity amount ofthe petitioner will not bejust and proper. 10. In view ofthe foregoing and as admitted by leamed counsel appearing for both the parties, fhis petition is allowed in the terms of the order passed in the case of Vidyadhar Tiwari (supra) i.e. the impugned order dated 31.05.2006 (Annexure P/l) regarding recovery of Rs. 3,79,097/- from the retiral dues ofthe petitioner is herebv quashed. The petitioner is entitled to full pensionary benefits/eratuity amount wifhout any deduction. However, it is open to the respondents, if so advised, to take recourse to Rule 65 ofthe Rules, 1976, in accordance with law aad basic principles ofnaturaljustice. No order asto costs. Sd/- Satish K. Agnihotri Judge Amit 22006(I)MPHT105(CG)