\^^ 5^ Ks-j- LI^J o 1-^3 Wj S»ri....-s)c7"" ^f^ocss A.R.^ AMENDED PETITION INJ'HB HON'BLB HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.(S)NO. 4333 OF 2008 7 WRIT PETITION UITOER ARTICLE^226^ OFT5IE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT/WRITS, ORDER/ORDERS. DIRECTLOiT^DJREC'nQNS^TC. Petitioner D.S.N. Murty, S/o Shri D. KrishnaMurty, aged 62 years, Retired Assistant Engineer from the O/o The Chief Engineer, Minimata Bilaspur, Bilaspur. Versus Bango Project, R/o Tikrapara, Respondents ^r '•^y^'^ -T,\~ i,yyyW 1. State of Chhattisgarh through the Secretary, Department of Water Resources, D.K.S. Bhawan, Mantralaya, Raipur. 2. The Secretary, Govt. of Chhattisgarh, Department of Finance, D.K.S. Bhawan, Mantralaya, Raipur 3. The Chief Engineer, Minimata Bango Project, Bilaspur (Chhattisgarh) 4. The Joint Director, Treasuiy, Acounts and Pension, Bilaspur Division, Bilaspur (Chhattisgarh) 1. PARTICULARS OF THE PETITXONER /->^"—^ 1 ^-...^ ^ '^'-fe'^' ..-•/ ^f'y ^)\ '•^s-:^- r.-.Y~ 'i';\\ ..w :;*' HIGH COURT OF CHHATTISGARH AT BILASPUR WK1T PET1TION (S) No. 4333 of2008 PETITIONER : D.N.S.Murty. VERSUS RESPONDENTS : State ofChhattisgarh & Others. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OFJNDIA SB:jIon'bleShn Satish K. Agnihotn, J, Present: Ms. Sharmila Singhai, Advocate for thepetitioner. Shri P.K.Bhaduri, Panel Lawyer for the ORDER fORAL) (Passed on 24th day of February, 2011) 1. By this petition, the petitioner seeks quashing of the order dated 04.08.2006 (Annexure P/l) passed by the respondent No. 3 and the order dated 18.09.2006 (Annexure P/14), passed by the respondent No. 4 whereby it has been directed to recover an aiiiount of Rs. 75,253/- from the retrial dues of the petitioner, holding it to be excess payment made to the petitioner, during the coruse of his service. 2. According to the learned counsel appearing for the petitioner, the impugned recovery has been made without affording an opportunity of hearing to the petitioner, and further, 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 ofSahib Ram v. State ofHaryana and others , and further followed by this Court in the matter of Vidyadhar Trwari v. The State of .+ 1995Supp(l)SCC18 m ; Chhattisgarh & Others and Vidya Shankar Tiwari v. State ofM.P. (Now State of Chhattisgarh) and others and thereafter followed in several decisions. Further, reducing pay scale on any ground, whatsoever, Whether it was wrongly granted except if on misrepresentation of the employee, principles of natural justice is to be followed as it visits with civil consequences On the other hand, Shri Bhaduri, leamed Panel Lawyer appearing for the State/respondents submits that the excess payment was made was well within the knowledge of the petitioner. Thus, the impugned order of recovery has rightly been passed. However, he fairly submits that no opportunity of hearing was afforded to the petitioner before passing the impugned order. Heard leamed counsel appearing for the parties, pemsed the pleadings and documents appended thereto. There is no dispute that while reducing the pay scale and direting recovery of excess payment, no opportunity of hearing was afforded to the petitoiner. Thus, the entire exercise of recovery of excess payment as well as reducing the pay scale is bad and vitiated. The contention of the respondents that the petitioner was wrongly granted higher pay scale is noticed to be rejected on a simple ground that it is no where pleaded or stated in the argument that even if the wrong has been committed by a senior officer, whether the fact was brought to the notice of the employee to put forward his case or explain about the grant ofhigher pay scale. The next contention of the respondents that the petitioner received 2006 (1) MPHT 105 (CG) 2006(2)MPHT31(CG) amount on grant of higher pay scale, thus, it can be held that the petitoiner was aware of excess payment, is misconceived. Knowing grant of illegal higher pay scale on account ofthe fact that he has received the pay scale, cannot be held that the petitioner was aware ofthe fact that higher pay scale was fixed illegally. In Syed Abdul Qadir & others v. State of Bihar & Others , the Supreme Court observed that excess payment of emoluments/ allowances cannot be recovered ifthe excess ainount was not paid on account of any mis-representation or fraud on the part of the employee and ifsuch excess payment was made by the employer by applying a wrong principle for calculating the pay/allowances or on the basis ofa particular interpretation of rule/order, which is subsequently found to be erroneous. It is not the case ofthe respondents that the excess payment has been made to the petitioner on account of any mis-representation or fraud on the part of the petitioner. The excess payment might have been made by wrong calculation or wrong interpretation of the provisions oflaw, ifany. The Supreme Court as well as this Court in a catena of decisions, time and again reiterates that no recovery ofexcess payment for no fault ofthe employee can be made without following the principles of natural justice. This Court in Ramchandra Kurup v. State of C.G. & Others 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 -> (2009)38cc475 WP (S) No.3663 of2009 decided on 23-11-2009 conditions wherein the excess payment may be recovered, namely (i) excess payment was made on account of misrepresentation or fraud on the part ofthe 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......" 9. In view of foregoing, this petition is allq>ved. The impugned order dated 04.08.2006 (Annexure P/l) and 18.09.2006 (Annexure P/14) are hereby quashed. The petitioner is entitled to fall pensionary benefits/gratuity amount without any deduction. 10. However, it is open to the respondents to take 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. ^.- --—'~-' Sd/- , . SatisbK.Agnillotrl Amit