IN THE HIGH COURT QE CHHXmSGARH BIt.^SPUR. WRiT PETITEOH N0. . .f. ."17.0F 2003. .^ pgri'riOHER ..•• / Shriram patel, S/o» late shri Mohan Singh .•••"'^f,^ Patel, aged about 62 yeai.ss R/o» Albeda REa Para» ^ ^^y ;?'C!^S;'~ . •• Kondagaon, Distt» Bastar (C.G.) .^^^" ^•^o'1'"^- VE RS U S <?<"'.A ••' '^ RESPONSENTS 1» 2. 3, 4. State of CIihattisgarh» through t The secx-etary. Deptt. of Forest, D.K.S. Building Mantralaya,Raipur. The Dlvlslonal Forest officer Soutb Kondagaon JForest Div.i.sion Konelagaon» Distt. Bastar. J@iat Director, Treasury AGceunts & Pension Ra.i.pur. Tbe District Treasgry Of£lce» Jagdalpur, Distta Bastar» WRIT PETITIQIl:,,_UNDER AKTIOaE., 22&/& 227 0F THE GONSTITOTION OF INBIA it Petition W No.1047 of 200; VERSUS Shriram Pate! Ths State of C.G. & others. Shri Prafull Bharat, counsel for the petit Shri Y.S. Thakur, Dy. A.G; for the /'State. IER ARTICLE 226/227 OF Tl relief: In the instant petltion the petitioner is seeking the fo!lowin< "7 (i) To ca!l for t'ne records of the case for the kindperusai ofthis Hon'ble Court. (ii) To quash the impugned order dated 31.5.2002 (Annexure P-1) being arbitrary and iltegal and further directed the respondsnt to return the amount illsgally dedacted with interesf@ 18%perannum. (iii) The restrain the respondents from deductsng any further amoi/nt in tha garb of excesspayment. (iv) To direct the respondenfs to sanction and grant the pension to the petitioner and to further pay interest @ 18% per annum ovsr the •amount so with'neld from the date of his retirement. (v) Any other order, directions deemed fit in the circumstances of the case may also be 1 ! 1:4 --2.— However, counsel for the petitioner submits that in view of the subsequent development he is confining his argument to the rellef rnenticned above at paragraph 7 (li) relating to quashment of the impugned order dated 31.5.2002 (Annexure P-1). 2. Brief facts of the case are that the petitioner is a retired employee of the forest department who retired as Jeep d'river ivhich is a Class IV post, on 31.7.2000. The petitioner was served with the impugned order dated 31.5.2002 directing for recovery of an amount of Rs.49,362 from his gratuity. 3. Contention of the petitioner is that as per the order dated 31.5.20D2, an amount of Rs.98,567 appears to have been sanctioned tov/ards gratuity of the petitioner and out of which an amount of Rs.49,362 has been dsrected to be recovered. He sybmits that order impugned has been passed without giving an opportunity of hearing to the petitioner and wlthout even disctosing the fact as to how the jratuity is being calculated and how an amount of Rs.49,362 was to be in excess. 4; Counsel for the petitioner placed reliance on the decisions of the Supreme Court in the matter ofSahib Ram Vs. State of Harvana & othersL& in the matter of Purshottam Lal Das & others Vs. State of iihar & others^. In these two decisions it has been held by the Supreme Court that if the excess payment is made due to the wrong construction of relevant order by the authorlty concerned without any misrepresentation on the part of the employee, no recovery can be made from the employee and if recovery is already made, it is liable to be restrained. 5. Counsel for the respondent submits that State has every right to recover the excess payment as per rule 65 of the Chhattisgarh Civil Seryices Pensions Rules, 1976. He however fairly submitsthatinthis case no opportunity was given to the petitioner in respect of the recovery sought to be rnade from him. ' 1995 Supp. (1) SCC 18 2(2006)11SCC492 ! J -3- 7 . Heard counsel for the parties and perused She material availabie oh.record and thejudgments ofthe Supreme Court cited sbove. 8. It is an admltted position that the petitioner was not afforded any opportunity of hearing before passing the order impugned. Thus, this Court is of the opinion that the order dated 31.5.2002 (Annexure P-1), is iiable fo the set aside so far as it reigtes to recovery of amount of Rs.49,362. 9. Ordered accordlngiy. !f pursuant to the order impugned any recovery has already been made, the same is directed to be refunded to the petitioner. 10. Resultantly, petiiion succeeds. Sd/- Pritinker Diyaker Judge