t . ! U u HIGH COLTRT OF CHHATTISGARH AT BILASPUR WRTLPETmON (S) No. 3731 of2007 PETmONER Bharat Ram Safau, son of Sukhi Ram Sahu, aged about 65 years, Retired GoveiTtment Seivatit, resident of Chakradhamagar, District - Raigarh (C.G.) VERSUS RE.SPONDENTS : l. State of Chhattisgarh, throu^i Secretary, Education Departmeiit, D.K.S. Bhawaii, Raipur District Raipur (C.G.) 2. Accountaat General, Chhattisgarh, Pension Bada- Raipur (C.G.) 3. District Education Officei-, District Raigarh (C.G.) 4. Deputy Treasury OfScer, Sarangarh, District Raigarh (C.G.) 5. Collector, Raigarh, District Raigarli, District Raigarh (C.G.) 6. Principal, Govemnient Higher Secondary School, Kosir, District Raigarii (C.G.) WRTT PETITION LWDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'Me Sliri Satish K. Agmhotri^J. Shri Sunil Sahu, Advocate forfhe petitioner. Shri Amn Sao, Govenmient Advocate fortlie gtate/respoiident No. 1, 3, 5 & 6. Shri A.K.Barik, Advocate forthe respondent No. 2. 1. 2. (Passed on 10m day of February, 2009) Witli the consent ofthe parties, the matter is heard finally. By this petition, the petitioner challenges fhe recovery of a sum of Rs. 1,70.484/- from Ihe retiral dues towards excess paymeat made to the petitioner on account of •WTong calculation of the service tenure of fhe petitioner. The petitioner has filed this petition praying the respondents be directed to refund the deducted amouat of Rs. 1,70,484/- vvith 9% interest to the petitioner. 3. Leamed eounsel appearing for the petitioner submits tliat the issue asto whether recovei-v of excess oavmeirt can be made without following principles of aatural iustice is no loager res inteera, fhe saine has been settled by the Supreme Court in the matter of Sahib Ram v. State of Haryana and others , and farther foilowed by tbjs Court in the matter of Vidyadhar Tiwari v. The State ofChhattisgark & Others and Vidya Shankar Tiwari v. State of M.P. (Now State of Chhattisgarh) and other/. Leamed counsel for the respondents/State relies on Rule 65 of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short 'fhe Rules, 1976') for the purpose ofrecovery aod adjustment ofGoveniment dues. Rule 65 offhe Rules. 1976 reads as under: 5. "Rule 65 - Recoveiy and adjustmeat ofGovemment dues:- (1) It shall be the dutv of everv retiring Goveniinent servant to clear all Govemment dues before the date ofhis retirement. (2) \Vliere a retiriag Govemment servant does not clear the Governnient dues and such dues are ascertainable:- (a) an equivalent cash deposit may be taken from him; or out offlie gratuity payable to him, his nominee or legal heir, an aiuount eaual to that recoverable on accouiit ofaseertainable Govemment dues shall be deducted. Explanation-1. The expression 'Oicertainable Govemment dues' mcludes balaiice of house building or conveyance advance, arrears of rent and otlier charges pertaining to occupation of Govennnent Acconiniodatioii, over-payment of pay and allowances and arrears of ineome tax deductible at source underthc Income Tax Act, 1961" The contention of the petitioner that even for exercising power under Rule 65 offhe Rules, 1976, basic principles ofnatural justice aad fair play in action are required to be followed. In the present case, the 1 - /^.~.~ — 1995 Supp (1) SCC 20 2 2006 (l)MPHT 105 (CG) 32006(2)MPHT31(CG) State/authorities have aot afforded any opportunity of heariag to the petitioner to put forward his case asto why the deduction from the gratuity amount being excess amount canuot be made. The contention of fhe leamed counsel for the petitioner merits acceptance. 6. This Court, in the case of Vidyadhar Tiwari (supra), has held that the excess paynient, if any, made to the petitioner, he was not at fault and tfae amount received by hiin might have been used by adjusting liimself accordingly treatmg the same as his salary. At this stage, directing recovesy' of the alleged excess amount fi-om the pensioiiar\' benefits/ gratuity aiaount ofthe petitioner will not bejust and proper. 7. In view of the foregoing, this petition is allowed in the terms of the order passed in the case of Vidyadhar Tiwari (stipra) i.e. the petitioner is entitled to fall pensionaiy benefits/gratuity ainount without any dediiction. However, it is open to the respondents to take recourse to Rule 65 ofthe Rules. 1976. ifso advised. in accordaace with law, after following basic principles ofnaturaljustice. No order asto costs. Sd/- Satish K. Agnihotn Judge Arrut