3i k ^ A 4 /-. L BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.} WRITPETITION ^o 8^/2009 Sl 3rS' S^ Petitioner Chowaram Ganber S/o Late Kedarnath, age 62 years, Govt Primary School, Block Dongargaon^ District ''»• c*^^.' vF^rf J'^-€<.A>j^ •^-»vy v i'» 5$ •^a^"" Sukhari,BlockDong ...•f>^"w'"^'.^-""" ^ ^»'i'^'"^-"""" Rajnandgaon (C.G.) ^y ^^'^ Respondent VERSUS 1. State Govemment of Chhattisgarh, Through the Secretary, Education Department, D.K.S. Bhavan, Raipur (C.G.) 2. Joint Director, Kosh, Lekha, Pension Raipur Division, Raipur. 3. Block Education Officer, Block Dongargaon, District Rajnandgaon (C.G.) PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. r,;.--'" -3T ^ '^ u '-2 HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.2087 OF 2009 PETITIONER Chowaram Ganber Versus RESPONDENTS State Government oS Chhattisgarh & Others (Writ petition under Article 226 of ttie Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Somkant Verma, counsei for the petitioner. Shri M.P.S. Bhatia, Dy. Govt. Advocate for the State. ^{-ORAU (Passed on this 5"' day of October, 2009) 1. With the consent of learned eounsel appearing for the parlies, the petition is heard finally. 2. By this petition, the petitioner impugns the order dated 24-3-2009 (Annexure P/1) passed by the respondent No.2, whereby a sum of Rs.34,878/- has been deducted holding it to be excess payment made to the petitionef, from his retiral dues. 3. Learned counsel appearing for the petitioner submits that the issue asto whether rwovery of excess payment can be made without following principles of naturai Justice is no longer res wtegra, the same has been settled by the Supreme Court in $ahib Ram v. Stete of Haryana and offTers, and ftjrther followed by this Court in VidyacSiar Tiwari v. The State of ChhatS^afh & Qiher^ & Vktya Shankar Twari v. Stete of MP. fA/ow Stete of ChhatSsgarfi) and offTers3. In the instant case, the impugned ord@r has been passed without affording any opportunity of hearsng to the petitioner, 4. Despite several opportunities granted to th@ State, return has not been filed tii! date. 5. Learned counsei appearing for the Stote submits that it is not clear asto-whether opportunity of hearing was afforded before the impugned order was passed. However, Jearned counsel relies on ll995Supp(1)SCC20 ' 2006(1)MPMT105 (CG) 3 2006 (2)MPMT 31 (CG) ^^"^3'- Rule 65 of the Chhattisgarh Civit Services (Pension) Rutes, 1976 (for short 'the Rules, 1976') for the purpose of recovery and adjystment of Government dues. 6. The contention of the petitioner that even for exercising power under Ruie 65 ofthe Rules, 1976, basic prindples of naturaJ justice and fair play in action are required to be followed. tn the present case, it appears that 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 of the tearned counsel for the petitioner merits acceptance. 7. This Court, in Vidyadhar Tiwari (supra), has he!d that the excess payment, if any, made to the petitloner, he was not at fauit and the amount received by him might have been used by acljusting himsetf accordingly treating the same as his salary. At this stage, -directing recovery of the aileged exeess amount from the pensionary benefits/gratuity amount ofthe petitioner witi not be just and proper. 8. In Syed Abdul Qsdir and others v. Stateof Bihar & Others4, the Supreme Court has observed that excess payment of emolumente/ allowances cannot be recovered if the excess amoynt was not paid on account of any misrepresentation or fraud on the part of the employee and if such excess payment was made by tfie empioyer by applying a wrong principle for calculating the pay/allowances or on the basis of a particular interpretetion of ruie/order, which is subsequently found to be erroneous. 9. It is not the case of the respondents that the exeess 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 inteipretation of tie provisions of law, if any. Thus, the petjtioner is entitled to full retirat benefits without any deduction/adjustment of exc@ss payment and the empioyer is not entitied to recover any exce^s amount from the retiral dues of the petitioner, particuiarly after a period of five years of retirement 4(2009)3SCC475 fc<*^,; 10. In view of foregoing and as admitted by iearned counsel appearing for the parties, this petition is allowed in terms of the order passed by this Court in Vidyadhar Tiwari (supra) i.e. the impugn^d order dated 24-3-2009 (Annexure P/1) deducting a sum of Rs.34,878/- from the retirat dues of the petitioner is hereby quashed. The petitioner is entitled to futl pensionary benefits/gratuity amount without any deduction. If the said amount is already deducted from the gratuity, the same shall be payable to the petitioner with simple interest @ 6% per annum from the date it became due tfl! the payment is made. However, it is open to the respondents to take recourse to Rule ©5of the Rules, 1976, if so advised, in acGordance with tew, aft@r following basic principles of natural justice. No order asto costs. Gowri Sd/- SatishK.Agnihotri Judge