HIGH COURT OF CHHATnSGARH : BILASPUR Petitioner Versus Respondents 1. 2. Writ Petition (S) No. 267 of 2009 Saxaay Lal Sahu, age about 66 year, retired H.M. S/o Shri Budh Ram Sabu, R/o Vill^e SakreU (Va) TahsU Sakti, Distt. Janjgir Champa (C.G.) State Crovt. of Chhattisgarh, Through the Secietary, Education Departm.ent, D.K.S. Bhawan, Raipur, Distt. Raipur (C.G.) Joint Director (Treasury, Account aad Peusion), Bflaspur, Distt. Bilaspur (C.G.) WRIT PEH'ITION UNDER ARTICLE 226 OFTHE CONSTITUTION OFINDIA (SB: Honl3le Shn Satish K. Agnifaotri J.) Shri SomJkaiit Verma, Advocate for the petitioner. Ms Suaita Jaiii, Pauel Laroyer for the State/respondents. 3, 0__R A_L_ _Q_R_D E R (Passed on this 9th Day ofApril, 2009) Wifh. the eonsent of leamed coiinsel appearing for the pardes, the inatter is heard fiiially. Leamed coiinsel appeariiig for the petitioaer subiuits that fhe petitioner, while workuig as Head Master, retired Iroin service on attFiining fhe age of superaaauation on 31.9.2004. After fais retirement, by order dated 27.10,2004 (Aanexure P/2) a sum of Rs. 21,422/- has been directed to be recovered from fbe retiral dues of fhe petLtioner on accouut ofexcess payment made to the petitioner. Learaed counsel appearmg for the petitioner submits that the petitioner was not given aay opportuiuly to explaia about the payment m.ade to fhe petitioner. Thus, fhis oider is vitiated for want of coiupliaace of fh.e prmciples of natuial justice aad fair play ia aetion. Leanaed counsel further submits fb.at there is no fault on the part of fhe petitioner aad fhe ainount is paid to him in accordance with the pay scales, revised aad fixed by fhe respondents fi-om tiiae tottme.No reason has beeu assigned asto on which count fhe excess payment, if any, was m.ade. The respondents cannot recover the amount, ateady paid to the •c: :< 7. •3-- petitioner after his retireinent, that too wifhout foBowing fhe principles ofnatUTal justice. On 19.1.2009, notices were issued to fhe respondents ia presence ofleamed Depuly Govt. Advocate for the State. TiU date no reply has been filed by the State/respondents. She subinits that it is apparent fhat no show cause notice was given to fhe petitioner. The petitioner was not called upon to submit his explanation for payinent of aUeged excess pa}rment aad recoveiy fhereafter. However, leamed counsel for the State veheniently aiyied that fhis niatter deserves to be disinissed at the threshold as the impugned recovery order was issued on 27.10.2004 aad fhe petitioner has not explained delay and laclies ia approaching this Coiut aftera period ofinore fhau four years. In case of filmg of writ petition there is Ino Imutation as such. However, looking iato the facts where fhe aggrieved person slept oyer his right for a long period and pemiits ofliers to acquire soine rights, it is held tbat fhe delay and laches in filmg petitiou shou-kl not be condoned.In fhe present case no fhird party right , has been created by coxuing after inore than. four years to fhis Court. Thus, the delay and lacbes in filing this petition staiids condoned. The respondent-authorities have not tbUowed the principles of natural justice and the impugned action has been taken without affording an opportunily of hearmg to fhe petitioner. The practice of passiag order iavolviag civfl consequenees, wifhout show cause notice or without affordiag an opportunily of hearmg is condeirmed. Thus, fhis action of deductiug Rs. 21,422/- from retrial dues is bad on. account of the fact that the petitipner was not afforded aay opporturuty of hearing before the impugaed action was taken. The Hon'ble Supreme Court in the case ofShyamBabu Verma and others Vs. Uaion of India and others1, has held that the eiuployees who have received bigher scale due to no fault of theirs, it shaU only be just aad proper not to recover any excess aiuount already paid to ftiem.. @l'i KiiihL4uu» 1{(1994)2SCC521} -3- 8. 9. 10. 11, Thalmr The Hon'ble Suprenie Court in the matter of Sahib Rain Vs. State of Haryaaa and others2 , ia para 5 held, as mider; 5. However, it is not on accoiuit of any misrepresentation inade by the appeUant fhat fhe benefit of higtier pay scale was given to him but by wrong construction niade by fhe Principal for which the appeUant caunot be held to be at fault. Under fhe circumstances, the ainount paid tfll date may notbe recovered from ttie appeUaat." The HouTile Supreme Court in. the matter of P. Tulsidas and others Vs. Government ofA.P. and others3 , observed fhat the benefit accrued earller by way of graut of h^her pay or revised pay, caruiot be taken away as ttie saaie is violati.ve of Article 14 and 16 ofthe Constitution ofludiabeiug arbitraiy, unreasonable aad expropriatoiy. This Court in the matter of Vidhyadhari Tiwarl Vs. State of Chhattisgarh & otfaers4, held fhat for fhe excess payment it'any, m.ade to the petitioner, he was not at fault aad the amount received by him m%ht have beeu. used by adjusting himself accordiagly treating the sauie as his salaiy. At fhls stage, directing recovery of the aUeged excess amount froin the pensionaiy benefits offhe petitioner wiU not be just and proper. In view of the tbrgoing, fhe petition is allowed. The impugned order dated 27.10.2004 (Atuiexure P/ 1) ia regard to fhe recovery of Rs. 2l,422/-, on account of excess payinent uiade to the petitioner, is hereby quashed. The petitioner is entifled to faU pensionary benefits/gratuily amount wifhout aay deduction. If the am.ouiit has ah-eady been recovered, the petitioner is entitled to the said amount wifh interest at fh.e rate of 6% per annuni. However, it is open to fhe respondents/State to take recourse to Rule 65 ofthe Chhattisgarh CivU Services (pension) Rules, 1976, if so advised, in accordaace wifti law, followiag flie basic principles ofnaturaljustice. No order asto costs. Sd/- SatishK-Agnihotn Judge ._-.—J!L^. 2{ 19958upp(1) SCC20} '{A.I.R.2003 SC43} 4 { 2006 (1) M.P.H.T. 105 (C.G.);