rr} lo^s&30 ^>^^>.. ..• ^ ^...^•^^v^ i'*-y'^yi^x' l>."r* '"n 1 °• - ^? 'y? -\^ m THE HIGH COURT OF CHHATTISGARH JUDICATURE^T BILASPUR {C.G.} W.P,(S) N0. / Mohd. Tahir Baksha, Retired Head Master S/o- Late Mohd. Shakur Baksha, Aged about 66 years, R/o- Kankalipara Ward, Kanker, Distt-Kanker, Chhattisgarh. /2010 ;; s apai^i- w&»s^.'w& PETITIONER VERSUS State of Chhattisgarh, Through-Secretary, Department of Tribal Welfare, D.K.S. Bhawan, Mantralaya, Raipur, Chhattisgarh. Joint Director, Treasury, Account and Pension, Baster Division, Jagdalpur, Chhattisgarh. Assistant Commissioner, Tribal Welfare, Kanker, Distt. Kanker, Chhattisgarh. RESPONDENTS WRIT PETITION UNDER ARTICLE 226 QF THE CONSTITUTION OF INDIA ^^ YU' ;p mOH COURT OF CHHATriSGAKH AT BILASPUR %MT PETITION (S) No. 170 of201U PEnTiONER : Mohd.TahirBaksha. VERSUS RESPQNDENTS : State ofChhattisgarh& Others. %'RIT PETmON UNDER ARTICLE 226 OF THE. CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Aanihotri. J. Prssent: Shri Pankai iShrivastava, Advocate for the pstitioner. Shri M.P.S.Bhatia, Deputy Govemment Advocate for the Stats. ORAL ORDER (Passed on 17t;lday of Februan'. 2010) With the consent of leamed counsel appeafing fbr the parties, the matter is heard finally. 1. Notices were issued to the respondents on 13.01.2010 and two weeks time was granted to the respondents to file retum. Tbereafier, fiufher two weeks time was granted on 01.02.2010 to seek instructions and ffle response. The respondents have faUed to file any reply tiU date. 2. ChaUenge in fhis petition is to the order dated 30.09.2005 (Aunexure P/1) whsreby it has been directed to recover a sum of Rs. 29,296 from the retiral dues ofthe petitioner, holding it to be excess payment made to the petitioner, during the course ofhis sei-vice. 3. Sfari Shrivastava, leamed counsel appearing for tfae petitioner suhmits fhat the petitioner, working as Head Master, retired from semce on attaining the age of superannuation on 30.04.2005. The petitioner reeeived a coimnunicarion dated 30.09.2005 (Aimexure P/l) issued by the respondent No.2 directing recovery ofRs. 29.296/- from the retiral dues ofthe petitioner holdmg it to be excess pa^inent made to the petitioner, during the course ofhis service. 4. Shri Shrivastava further submits fhat the issue asto whether recovery of excess payment for no fault of fhe employee can be made without following the principles ofnaturaljustice is no longer res integra. The same faas been settled by Hon'ble Supreme Court in various decisions (See SyedAbdul QwB.i' and others v. State of Bihw and otheesf). This Court, relying on the above decisions has passed several orders, directing refand of fhe amount, if any, rscovered fi-om the employees, where fhe employees were not given any (2009) 3 SCC 475 'ia5B»te>. Aniit opportunity to explain about fhe excess pa^-ment, if any, made to them. Slui Shrivastava fiirfher contends fhat aay recovery fi-om retiral dues can be made only m case if thei'e was any misrepresentation or fraud on the part of the employee aiid fhe employes had knowledge that the psymecct was reeeived in excess. The error, if any, could have been corrected wifliin a short span of time fi'om wiong payment. 5. Leamed counsel appearins for the respondents does not dispute fhe above submission made by leamed counsel appearing for the petitioner. However, he subtnits tfaat the smular order may be passed, subject to venfication offacts. 6. This Court, as weU as Hon'ble Supreme Court, in a catena of decisions, time and again reiterated that no recovery of excess payment for no fault of tfae smployee can be made without foBowing fhe principles ofnaturaljustice. This Court in Ramchandra Kurup v. State ofC.G. & other^ and other connected matters, decided on 23 November, 2009, observed as under: "19. A eoinmon thread rmming into fhe above decisions of the Supreme Court is that, for recovery of excess payment of emoluments/allowances, there are three conditions wherein the excess payment may be recovered, namely (i) sxcess pa^'ment was made on account of misrepresentation or fraud on the part ofthe employee, (ii) the empioyee had knowledge fhat the payment received was in excess, and (iii) the error was corrected within a short span of time of wrong payment.........." 7. &i view ofthe forgoing, ffae impugned order dated 30.09.2005 (Annexure P/l) dn-ectmg recovery Rs. 29,296/- on account of excess payment made to ffae petitioner, is hereby quashed. ff fhe amount has already been recovered, flie pstitioner is entitled to the said amoimt witfa interest at fhe rate of 6% per annum, subject to verification offacts. However, Uberty is reserved to fhe State/respondents that if the excess payment has been made on aecount pf misrepresentation or fraud on the part of the employee, or the employee had fhe knowledge that the payment received by her was in excess, frssh orders may be issued on verification of flie facts, after affording opportunity ofhearing to the petitioner. 9. The writ petition is accordingly disposed of. 10. No order asto costs. __| §,}/. SATISH K. AGNIHOTRI Judge 2',W.P.(S) No. 3663 of 2009