•w HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS WRIT PETITION (S) No. 3293 of 2007 Laxman Prasad Sahu S/o - Same Lal Sahu Aeed about 61 years Retired Constable -439 R/o - Mana Camp Raipur (C.G.) VERSUS : 1. State of CKhattisgarh Department of Home (Police) Through its Principal Secretary, D.K.Bhawan, Raipur (C.G.) 2. The Dy. Inspector General & Senior Superintendent ofPolice, Raipur (C.G.) 3. The Joint Director of Treasury Account & Pension Raipur (C.G.) WRJT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Aenihotri, J. Present: Shri A.S.Rajput, Advocate for the petitioner. Shri M.P.S.Bhatia, Deputy Government Advocate for the State/ respondents 1 and 2. QRAL ORDER (Passed on 0211'1 day of May, 2008) 1. With the consent of the parties, the matter is taken up for hearing finally. 2. The petitioner, by this petition impugns the order dated 03.07.2006 (Annexure P/l) whereby it was ordered to recover a sum ofRs. 4,39,842/- from the petitioner. The brief facts, in nutshell, are that the petitioner working as Constable in the police department, retired from service on 30.04.2006 on attaining the age of superannuation. Without any show-cause-notice or opportunity of hearing, to his utter surprise, the petitioner received the impugned order dated 03.07.2006 (Annexure P/l), whereby it was directed to recover a sum of Rs. 4,39,842/- as excess payment made to the petitioner. 3. Being aggrieved, the petitioner has filed this petition praying that the impugned order dated 03.07.2006 (Annexure P/l) directing recovery of excess payment or adjustment with the pensionary benefit, without affording opportunity of hearing to put forward his case, is unreasonable, illegal, arbitrary and contraiy to various judicial pronouncements made by the Supreme Court as well as this Court. 4. Notice was issued to the respondent No. 1 and 2 on 14.6.2007. In their return, the respondents have addressed on merit but with regard to giving any show cause -?s*—-S-;-~? notice or affording opportunity ofhearing, it is completely silent. Leamed counsel for the respondent/State categorically submits that no notice was issued or opportunity of hearing was afforded before the impugned order was passed. It is, thus, established that the contention ofthe petitioner with regard to the fact that no notice was issued or any opportunity ofhearing was afforded is proved. Learned counsel appearing for the petitioner submits that there is no fault on the part of the petitioner and the amount is paid to him in accordance with the pay scales, revised and fixed by the respondents from time to time. The respondents cannot recover the amount, already paid to the petitioner after his retirement, that too without following the principles of natural justice. Learned counsel further submits that the petitioner does not want to press other reliefs on merit, except that the amount 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 during that period without affording an opportunity ofhearing. On the other hand, learned counsel appearing for the respondents/State submits that since the pay of the petitioner was fixed contrary to the provisions and on scmtiny, it was found that excess amount has been paid, the same can be recovered from the retiral benefits/gratuity amount of the petitioner, even on retirement without affording an opportunity ofhearing. The Supreme Court, in the case ofSahib Ram Vs. State ofHaryana and others , 'm para 5 has held as under: "5.....However, it is not on account of any misrepresentation made by the appellant that the benefit of higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the ainount paid till date may not be recovered from the appellant." Leamed counsel for the respondents/State relies on Rule 65 of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short 'the Rules, 1976') for the purpose ofrecovery aiid adjustment ofGovemment dues. Rule 65 ofthe Rules, 1976 reads as under: "Rule 65 - Recovery and adjustment ofGovemment dues:- (1) It shall be the duty of every retiring Government servant to clear all Govemment dues before the date ofhis retirement. (2) Where a retiring Government servant does not clear the Govemment dues and such dues are ascertainable:- ' 1995Supp(l)SCC20 (a) an equivalent cash deposit may be taken from him; or (b) out ofthe gratuity payable to him, his nominee or legal heir, an amount equal to that recoverable on account of ascertainable GovenuTient dues shall be deducted. Explanation-1. The expression 'ascertainable Govemment dues' includes balance of house building or conveyance advance, arrears of rent and other charges pertaining to . occupation of Government Accommodation, over-payment of pay and allowances and arrears of income tax deductible at source under the Income Tax Act, 1961" 9. The contention of the petitioner that even for exercising power under Rule 65 of the 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 forward his case asto why the deduction from the gratuity amount being excess amount cannot be made. The contention ofthe learned counsel for the petitioner merits acceptance. 10. This Court, in the case of Vidyadhar Tiwari Vs. The Sfate of Chhattisgarh & Others , has held that the excess payment, if any, made to the petitioner, he was not at fault and the amount received by him might have been used by adjustinj himself accordingly treating the same as his salary. At this stage, directing recovery of the alleged excess amount fi-om the pensionary benefits/gratuity amount ofthe petitioner will not bejust and proper. 11. In view of the foregoing and as admitted by learned counsel appearing for both the parties, this petition is allowed in the terms of the order passed in the case of Vidyadhar Tiwari (supra) i.e. the impugned order dated 03.07.2006 (Annexure P/l) regarding recovery ofRs. 4,39,842/- from the retiral dues ofthe petitioner is hereby quashed. The petitioner is entitled to full pensionary benefits/gratuity amount without 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 and basic principles ofnaturaljustice. No order asto cqut°— 1 Sd/- Satish K. Agnihotri Judee 2006 (l)MPHT 105 (CG) Amit