x ‘ \ ‘ \ H1C1H LOURT ()F LHHA FTXSGARH Al BILASPUR ‘r W*1t Pa {mm 2N” 2‘8 0&008 ETITIONER L ‘ 3 ‘ 1 \ ‘ \ R.K. Shanna, S/o Raj Sharma, aged about 62 years“ Resident of Near Pamami Temple Rajiv Nagar, Kotra R ‘ oad Ralgarh Dismct Rmgarh (CG) VER§US § . State of Chhattisg‘arh thr01%1gh the Secretary, Fisherie Department DKS \Bhawani, Raipur, Distn'ct Raipur (CG). ‘The Director, Fisheries’Depamnent, Raipur, District Raipur (CG). . Assistant 'DireCtor Fisheries :Department, Raigarh, District Raiaarh (CG) Jomt D1rector Treasury Accounts & Pensmn. Bilaspur Dwmon District Bilaspur (CG) (WRIT PETIYION UNDER ARTICLE 226 OF TEE CONSTITUTION OF INDIA) (SB: Hon‘hie Mr. Satish K. Agnihotri: J.) resent : iShri DR. Patel, Advocate for the petitioner. v :Sint. Smita Ghai, Panel Lawyer for the State. RESPONDENTS ORAL ORDER (Passed on 10a; day of February, 2009) With the consent ot‘the parties, the matter is taken up for hearing, iinaily. Ji. By this petition. the'petition'er impugns the order eated 26.02.2007 (Annexure 'i P/5) passed by the respondent No.4, whereby it has been directed to ‘ recover/adjust the excess amount of Rs. 41,925J- from the retiral dues of the i petitioner. 2. The brief facts, in nutshell, are that the netitioner while working as Assistant ' Fisheries Officer, retired on attaining the age ofsuperannuation. The petitioner received the impugied order dated 26.02.07 (Annexure P/5), issued by the respondent N0. 4, whereby it has been directed to recover/adjust the excess amount which has been paid to the petitioner. ’ \ , Being aggrieved, the petitioner has tiled this petition, stating that no recovery ‘ can be made without aiibrding an opportunity of hearing to the petitioner atter I retirement, as‘ such the order is illegal, arbitrary and unreasonable. P s . . \ Leamied counsel appearing for the petitioner stibmits that there is no fault on the part ofthe petitioners and the amount was p id to them in accordance with the pay sca}es, revised and fixed by the respo dents from time to time. The respondents cannot recover the amount aheady paid to the petitioner aiter his retirement that too Without tollowmg the prmmples of natural justice Learned counsel further eubmits that the petltioner does not want to press other reliefs on merit, except that the amount which has already been paid to the petitioner cannot be recovere& from the retiral dues/gatuitiy amount on account ofexcess payment made to the petitioner during that§period without att'ording an opportunity ofhearing. l On the other hand, learned counsel appearing for the State/reSpondents submits that since the pay ofthe petitioner was fixed contrary to the provisions and on scrutiny, it was found that excess amount has been paid, the same can be _ recovered frOm the retirai benefits/gramity amount ofthe petitioner, even on V retirement without aifording an opportunity ofhearing The Sumerne Court 1n the case 0t bahzb Ram Vs brate of Haryana and i others}, in para 5 has held s under “5. However, it is not on account of any misrepresentation made by the appellant that the benefit of higher payscale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellai .” The Supreme Court, in the matter of P. Tulsidas and others v. Government of A.P. and othersz, observed that the benefit accrued earlier by way of grant of higher pay or revised pay, cannot be taken away as the same is violative of Articie 14 and 16 ofthe Constitution oflndia being arbitrary, unreasonable and expropriatory. Learned counsel or the respondents/State relies on Rule 65 ofthe Chhattisgarh ' Civil Services (Pension) Rules, 1976 (for short ‘the Rules, 1976’) for the L purpose of recovery and adjustment ofGovernment dues. Rule 65 ofthe Rules, 1976 reads as under: “Rule 65 : Recovery and adjustment of Government dues:- (1) It shall be the duty of every retiring Government servant to clear all Govemment dues before the date ofhis retirement. \ 3 1995 Supp (1) scc 20 p 2 AIR 2003 sc 43 f $ i 1 (2D Where a retiring Government servanlt aoés not 'clear the Gbvemment dues aiid such dues are ascertaEableh (ay an eauivalent cash deposit may be taken I' om him; or " (b) out ofthe gratuity payable to him, hié nonlinee or legal heir, an amount equal to that recoverable on account of ascertainable Gbvenmient dues shall be deducted. F1}i§planation-1.. The expression. ‘ascertainable Government dues’ meludea balance of house bulldmg or conveyance advance, arrears ofirent and other charges pertaining to occuf ation of Government - Aeoommodation, over-payment of pay and allowances and arrears otE income tax deductible at source under lthe Income Tax Act, 1961” The contention ofthe petitioner that even for exercising power under Rule 65 ofthe Rules, 1976, basic principles ofnatural justice and fair play in action are requiredlto be followed. In the present case, the State/authorities have not alibrded any opportunity of hearing to the petitioner to put forward his case asto why the deduction from the gatuity amount being excess amount cannot be made. The contention of the learned counsel for the petitioner merits acceptance. 10. This Court, in the case of Vidyadhar Tiwari Vs. The State of Chhattisgarh & Others3, has held that the excess payment, if any, made to the petitioner, he as not vat fault and the amount received by him might have been used by adjusting himself accordingly treating the same as his Salary. At this stage, directing recovery of the alleged excess amount ii‘om the pensiOnary b . In View of the foregoing this petition is allowed in the terms of the order passed in the case of Vidyadhar Tiwari (supra) i.e. the impugned order dated 26.022007 (Annexure P/5) regarding recovery ofamount from the gratuity and other dues ofthe petitioner on account of excess payment, is hereby quashed. The petitioner is entitled to full pensionary benefits/gatuity amount without any deduction. However, it is open to the respondents to take recourse to Rule 65 of the Rules, 19765 if so advised, in accordance with law following basic principles ofnatural justice. No order asto costs. s - Satish K. Agnihotri Judge enefits/gatuity amount ofthe petitioner will not be just and proper. f 12. Interim relief granted earlier stands vac, ated .FggKg Sahu J 3 2006' (1) MPHT 105 (CG) a w