^•'r-ffy"^::-' ....^f^^^--- l."-'" ^^^y1^-l!^""" ^^, -^_ I^*^^1""" c t / -^^J_ 'i^'""" INTHEHIGHCOURTOFJUDICATUREATBILASPUR CHHATTISGARH WritPetition (S) <r^> 12008 (SB) Ayodhya Prasad Mishra, S/o Late Shri Rampramod IVlishra, Aged About 61, Resident of Villacie -Meriyaras, Post Anuppur, Tahsil'and Djstrict Anuppyr (M.P.) StateofChhattisgarh, Through:-Secretary, HealthDepartment,D.K.S.Bhawan, Mantralay, Raipur(Chhattisgarh) Chief Medical Officer, Baikunthpur - Korea (Chhattisgarh) Director, Treasury Account & Pension, Pandri Raipur (Chhattisgarh) Jomt Director, Treasury Accounts & Pension, Bilaspur (Chhattisgarh) WRIT PETITIONUNDERARTICLE226/2270FTHECONSTITUTIONOF INDIA, FORTHEISSUANCEOFDIRECTIONYS) OR ORDER YS). s' mGHCOURT OF CHHATTISGARII AT BILASPUR WRIT PETITION fS) No. 5648 of2008 PETITIONER : Ayodhya Prasad Mishra. RESPONDENTS VERSUS State ofChhattisgarh & Others. ^RIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB:JIon'ble Shri Satish K. Aenihotri. J. Present: Shri Prakash Tiwari, Advocate for the petitioner. Shri M.P.S.Bhatia, Deputy Govemment Advocate for the State/ Respondents. Shri G.S.Thakur, ChiefMedical & Health Officer, Baikunthpur, Korea. Shri Raghavendra Pradhan, Advocate for tlie Accountant General, Chhattisgarh. • ORDER(ORAL) (Passed on 10th day of November, 2009) With the consent of learned counsel for the parties, the matter is heard finally. 1. By this petition, the petitioner seeks quashing of recovery order dated 7 August, 2008 (Annexure P/l) passed by the respondent No. 2, whereby recovery ofa sum ofRs. 8,754/- has been directed. 2. During pendency ofthis petition, the entire amount ofretiral dues have been released and credited in the account of the pefitioner. The copy of the order dated 9 September, 2009 whereby a sum ofRs. 41,6807- has been credited in the account of the petitioner, was produced before the Court, which is taken on record. 3. According to learned counsel appearing for the petitioner, the entire retiral dues have been paid. However, a sum of Rs. 8,754/- which was * directed to be recovered as excess amount by the impugned order dated 7 August, 2008, no order has been passed. 4. Shri Tiwari, leamed counsel appearing for the petitioner submits that the issue asto whether recovery of excess payment for no fault of the employee caa be made without following principles of natural justice is no longer res integra, the same has been settled by the Supreme Court in the matter ofSahib Ram v. Staie ofHaryana and others , and further followed by this Court in the matter of Vidyadhar Tiwari v. The State of Chhattisgarh & Others and Vidya Shankar Tiwari v. State of M.P. (Now State of Chhattisgarh) and others . In the instant case, the impugned order has been passed without affording any opportunity ofhearing to the petitioner. Shri Bhatia, leamed Deputy Government Advocate does not controvert the allegation that no opportunity of hearing was afforded e^ before the impugned orders were passed. However, he relies on Rule 65 ofthe Chhattisgarh Civil Services (Pension) Rules, 1976 (for short 'the Rules, 1976') for the purpose of recovery and adjustment of Govemment dues. The contention of the petitioner that even for exercising power under Rule 65 ofthe 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 oppQrtunity of Uearing 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 leamed counsel for the petitioner merits acceptance. This Court, in the case of Vidyadhar Tiwan (supra), 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 adjusting himself accordingly ti'eating the same as his salary. At this stage, directing recovery of the alleged excess amount from the pensionary benefits/gratuity amount ofthe petitioner will not be just and proper. In Syed Abdul Qadir & others v. State of Bihar & Others , the Supreme Court observed that excess payment of emoluments/allowances cannot be recovered ifthe excess amount was not paid on account of any mis-representation or fraud on the part of the employee and if such excess pa)Tnent was made by the employer by applying a wrong principle for calculating the pay/allowances or on >4 ' 1995 Supp (1) SCC 20 22006(1)MPHT105(CG) 32006(2)MPHT31(CG) 4 (2009) 3 SCC 475 K. 9. 10. /. the basis of a particular inteqiretation of mle/order, which is subsequently found to be erroneous. It is not the case of the respondents that the excess payment has been made to the petitioner on account of any mis-representation or fraud on the part of the petitioner. The excess payment might have been made by wrong calculation or wrong interpretation of the provisions oflaw, ifany. In view of the foregoing and for the reasons gjtated hereinabove, this petition is allowed. The impugned order dated 07 August, 2008 (Armexure P/l) regarding recovery ofRs. 8,754/- from the retiral dues of the petitioner is hereby quashed. The petitioner is entitled to full pensionary benefits/gratuity amount without any deduction. No order asto costs. i — — — —- Amit Sd/- Satish K. Aghihotri Judge