1%; mGH COTJRT OF CHHATTISGARH AT BILASPTTR WiiiPe<ifiun{SlNu.l4§?«f2{}0§ PEIITIONER : Inamulla Klian, S/o Shri Inayatulla Khan, Age about 60 years, Retd. Asstt. Grade II R/'o P.W.D. Colony, Near P.est House Qr. No. H-4, Pendra Road, Distt. Bilaspur (CG). VERSTJS •• 1. State Goverament of Chhattisgarh Tlu-ough : Secretan/, Pubiic Works Department DKS Bhawan, Raipur (CG). 2. Divisionai Joint Director (Treasun?, Pension & Accouiits) Bilaspiir Divisioii (CG). (WRIT PETmON LWDER ASTTCI.E 226 OF THE, CONSTmJTION OF INDIA) (8B: Hon'ble Mr. K. Agmhotii J.) Present : Shri A^ay Shnvastava, Advocate for the petitioner. Shri Aiok Bakhshi. Govt. Advocate for the State/respondents. ORALORDER (Passed on 01st day of May,2008) With the consent ofthe parties, the matter is taken up for heamig, finally. L By this. petilion, thc petition'sr iiiipiigiis thc ctrd€lr dated 28.02-2008 (.Ajiiiexure P/l) passed fcy the respondent No. 02, whereby it has been directed to deduct a sum ofp.s. 46,985/w as excess payment made to the petitioner, from the pensionary benefits. 2. The bs-ief facts, isi nutsheil, are that the petitioner while workisig as Assistaiit Gi'ade II isi Public Works Departmesit, retired on atteining the age of superamiuation, on 31JOJ007. He received the impugiied recoveiy order dated 28.02.2008 (Ajiiiexure P/l), issued by tiie respondent No. 2, whereby, the District Treasur)7 OfEcer was directed to recover a sum of Rs. 46.985A from the pensiona.r)7 benefits of the petitioner. (33) lia^ 3, Being aggrieved, the petitioner has filed this petitioii, statmg that 110 recovesy can be made without af&rding an opportimify of heaiisig to the petitioiier after retirement, as such tlie order is illegal, arbitrmy aod unreasonable. 4. Learned counsel appearmg for the petitioner submits that there is no fault on the pail of the petitiosier and the amount is paid to him isi accordance with the pay scales, revised and fixed by the respondents from time' to time. The respoiiderits camiot. recover the amouM, already paid to the petitioner after his retiremeiit, that too without following the principles of natiira! justice. Leamed counsel fiirther submits tiliat tiie petitioner does not want to press other reliefs on merit, except that tlie amount which has already been paid to the petitioner cannot be recovered from the retiral dues/gratuity amount 011 account of excess payment made to the petitioner during that period without affording 211 opportuiuty of hearing. 5. Oii the otlier haiid, leamed cousise! appeaj'iiig for the State/respondents submits that -sisice the pay of the petitioner was fixed contrary to fhe provisions aiid on scnrtiny^ rt was found that excess amouiit has been paid, the same can be recovered from the retiral benefits/gratiiity amount of the petitioner, even on retirement without afibrding an opportimity ofhearing. 6. The Supreme Court, in the case otSahib Ram Vs. State ofHavywia c id otJwr^, inpara 5 has held asundcr: •1995Supp(l)SCC20 J "5. However, it is not cn account of any misrepresentation made by the appellant that the benefit of highcr pay scale was given to him but by wrosig construction made by the Principal for which the appellaiit camiot be held to be at feult, IJiider fhe circumstaiices, the amoisnt paid til! may not be recovered from the appeiiant.' 7. Learned coimselfbr the respondesits/State relies on P.ule 65 of the Chhattisgarh Civil Sendces (Pension) Pjjles, 1976 (fbr shost: 'the Rules, 1976?) for the puipose ofrecovety and adjustment ofGovemment dues. Pjjle 65 ofthe P.ules, 1976 reads as under: "P.ule 65 - P.ecovesy and adjustment of Goverameiit diies:- (1) It shail be the dutv ofeven7 retiring Government servant to clear all Govemment dues before thc date of his retirement. (2) Where a retiring Govemment servant does not clear the Govemmeiit dues and such dues are ascertainaUe:- (a) an equivalent cash deposit may be taken from him; or (b) out of the gratuity payable to him, his nominee or legal heir. an amount equal to that recoverable on account of ascertaiiieble Govemmeiit daes shall be deducted. Explanation-1. The expression 'ascertainabie Govemment dues' mcludes balance of house buildmg or conveyance advance. arrears of rent and other charges pertaining to occupatioii of Govemment A^ccommodatiosi, over-payment ofpayand allowances and arrears ofincome taxdeductible at source under the Income Tax Act, 1961" 8. The CQnteiition of the petitioner thet even for exercismg power under Pjjle 65 ofthe P.ules, 1976, basic prmciples of siatural justice and fair play isi action are required to be followed. Isi the present case, the State/authorities have not affordsd any opportunity of hearing to the petitioner to put fon¥ard his case asto wh}/ the deductioii from the gratuity amount being excess aniouiit caimot be made. Ths coiitesition ofthe leamed counsel for the petitioner merits acceptaiice. 9. This Court, in the case of Vidyadhar Tiwari Vs. TheState of Chhattisgark & Others , has held that the excess payment, ifany, made to the petitiosier, he was not at fault and the amount received by him might have been used by adjusting himseif accQrdiiigly treating the same as hts salasy. At this stage, directmg recoveiy of the aileged excess amonnt from the pesisionaiy besiefits/gratuity amoimt of the petilioner will not bejust aiKi proper. 10. In view ofthe fcregoisig and as adsiiitted by ieamed counsel appearisig fbr both the parties, this petition is aUowed m the terais of tlie order passed in the case of Vidyadhar Tiwari (supra) i.e. the impugned letter dated 28.02.2008 (A.iinexure P/l) regardmg recoveiy ofamount from the gratuity and other dues of the petitioner on accousit of excess payment, is hereby quashed. The petitioner is entitled to fliil pensionaiy benefits/gratuity amount without aiiy deduction. However, it is open to the respondents to take recourse to Rule 65 of the Pailes, 1976, if so advised, m accordance with law and basic principles of natiiral justice^ No order asto costs. Sd/- SatishKAgnihotri Judge Sahu ;2006(1)MPHT105!;CG)