^^ HIOH COURT OF CHHATTISQARH : BILASPUR WRIT PETITION N0.5031 OF 2004 Surendra Nath Thwari Versus State of Chhattisgarh & Others •^ Post for pronouncement of the judgment & order on _(2. day of July, 2009 Sd/- 1 K. Judge .^€^s-.. gf 3? '• I- 'i. ^^^r^ v ~" '"•^fi. • ;i .<•' i! ^^•s?-- HSGH COURT OF CHHATTISGARH : BILASPUR WR1T PETITION N0. 5031 OF 2004 PETITIONER Surendra Nath Tiwari, S/o Late Shri Dudh Nath TiwarS, aged about 67 years, R/o viliage Jukkudand, Post Office Mansas via Pratappur, District Sarguja (CG), prssentiy residing at Mohalla Godhanpur, District Ambikapur (CG). RESPONDENTS 1. State of Chhattisgarh, through its Secretary, Anusuchit Jati / Anusuchit Janjati Avam Pichhada Varg Kaiyan Department, D.K.S. Bhawan, Raipur (CG). 2. Secretary, Finance Department, D.K.S. Bhawan, Raipur (CG). 3. Commissioner, Adim Jafl / Anusuchit Jati Avam Pichhada Varg Kalyan Department, D.K.S. Bhawan, Raipur (CG). 4. Director, Kosh, Lekha & Pension, Raipur, Division Raipur (CG). 5. Deputy Director, Kosh, Lekha & Pension, Biiaspu,- (CG). 6. Assistant Commissioner, Adivasi Vikas, Ambikapur (CG). under Articie 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Mr. Suresh Pandey, counsel for the petitioner. Ms. Smita Ghai, Panel Lawyer for the State. JUDGMENT & ORDER (Passed on this a day of Ju!y, 2009) Heard learned counsel for the parties. 2. By this petition, the petitioner seeks to challenge the tegality and vatidityof the order dated 27-7-2004 (Annexure - P/1) passed by the respondent No.2 herein wherein recovery order for Rs.38,470/- has been passed. The petitioner also seeks to chailenge the legality and validity of the letter dated 5-6-2004 (Annexure - P/2). ''XV " '"^-1 3. Case of the petitioner, as projected by the learned counset appearing for the petitioner, is that the petitioner was promoted fronn the post of Head Master to the post of Lecturer and accordingly he was granted the benefit of provisions of Section 22-D of the Fundamentai Rules (ftv short ' e W) from January, 1987. On retirement, a sum of Rs.38,470/- was directed to be recovered bv order dated 27-7-2004 (Annexure - P/1). Thus, this petition. 4. Shri Pandey, learned couns^ appearing for the petitioner, wouid submit that once the amount has been paid not on account of misrepresentation of the facts or any miscaiculation or misinterpretation of the provisions of law, the same ss no't recoverable, as held by this Court as well as by the Supreme Court in a catena of decisions. 5. Per contra, Ms. Ghai, iearned Pansl Lawyer appearing for the State, wouid submit that the circular dated 21-5-1999/9-6-1999, which provides for grant of benefit of 22-D of the FR to the Lecturers of Tribal Welfare Department, came into foree in the month of June, 1999. Thus, granting benefit to the petitioner w.e.f. January, 1987 i.e. prior to issuance of cireular dated 21-5-1999/9-6-1999 •<was srroneous and on wrong interpretation of the circutar. Learned eounsel relies on provisions of Rute 65 of the Chhattisgarh Civii Services (Pension) Ruies, 1976, which provides that the recoven/ and adjustment of Government dues can be made from the retiring Government servant on cash deposit or by deducting from the gratuity amount. 6. I have heard learned counsel appearing for the parties, parused the pleadmgs and documents appended thereto. It is evident that ths payment was made to the petitioner not on account of any misreoresentation or fraud. It is also not clear asto whether tha petitioner Rnew about the Tact that the payment made to him was in ;^--oA"-^T^ ff v':SS.3a^s"- excess. Admittedly, according to the respondents, the payment was made on miscaiculation or misinterpretation ofthe provisions. 7. The petitioner seeks quashing of the ietter dated 5-6-2004 (Annexure - P/2) on the ground that the said ietter amounts to canceliation of grant of benefrt of 22-D of the FR. On perusal of the said ietter, it appears that the Joint Director (Treasury, Accounte, Pension), Bilaspur, has sought guidance from e Assistant Commissioner, Tribal Welfare Department in respect of the cases wherein the Lecturers were granted benefit of Section 22-0 of ths FR and no order, it appears, thereafter has been passed. 8. Law is well-settied. The Hon'ble Supreme Court, in Syed Abdui Qadir and others v. State of Bihar and others1, having considered a!l the decisions of the Supreme Court in Sahib Ram v. State of Haryana, Shyam Babu Vemia v. Union of India, Union of Sndia v. M. Bhaskar, V. Gangaram v. Director; Col. B.J.Akkara (Retd.) v. Govt. of India, Puivshottam Lal Das v. State ofBihar, Ptinjab National Bank v. ManjeetSingh andBiharSEB v. Bijay Bahadur, observed as under: "57. This Court, in a catena of decisions has granted relief against rscovery of excess payment of emoiuments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the emptoyer by applying a wrong principle of calculating the pay/ai!owa"ce or on ths basis of a particular interpretation of rute/order, which is subsequently found to be erroneous: 58. The relief against recovery is granted by courts not because of any right in Uis empioyees, but in equity, exeroising judicial discretion to re'ieve the empioyee from the hardship that wi!l be caused if recovery is ordered. But, if in a gh/en case, it is proved that the employee had knowifedge that the payment received was in excess of what was due or wrongly paid, or in case where the error is detected or corrected within a short time of wrong payment, the matter being in the reaim of judicial discretion, 3) 3 SCC 475 courte may, on the facts and cireumstances of any particular case, order for recovery of the amount paid in sxcess. See Sahib Ram y. Stete afHaryana, Shyam Babu Verma v. Union of india, Union of india v. M. Bhaskar. V. Gamaram v. State of Bihar. Punjab Naffonal Bank v. Manjeet Singh and Bihar SEB v. Bijay Bahadur. 59. Undoubtedly, the excess amount that has been paid to the appeiiant teach&rs' was not because of any misrepresentation or fraud on their part and the appellants also had no knowiedge that the amount that •was being paid to them was more than what they were entitled to. It would not be out of piace to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the resuit of wrong interpretation of the Ruie that was applicable to them, for which the appeiiants cannot be 'heid responsible. Rather, the whoie confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsei appearing on behalf of the appeliant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appeilant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appeilant teachers should be made." { 9. This is a case where no misreoresentation or fraud has been established on the part of the emptoyee. Confusion was created on account of inaction, negligence or carelessness ofthe officlals, if any. 10. Having regard to the facts situation of the case, when the petitioner has already utilized the money for up-keep of his famiiy, tt wouid not be oroDer to direct recovsrv of the amount which has been paid to ttie petitioner. Even otherwise, recovery order has been passed wfthout following the basic principies of natural justice as nc opportunity of hearing was afforded to the petitioner before the impugned order was passed. V. >. f- Gowri In view of foregoing, the petition is allowed and the order datect 27-7-2004 (Annexure - P/1) directing recovery of frie excess payment is quashed. In case the amount has been recovered, the same shall be refunded back to the petitioner with simple interest within a period of four weeks from the date of receipt of a copy of this order. Accordingly, the petitioner is entitled to benefits of 22-D of the FR, No order asto costs. • §^/. Satish K; Agnihotri Judge -7-2008 1-