J£A m [4/5 I fa,— gngw aanch W IN THE HON’BLE HIGH COURT OF CHHATI‘ISGARH AT BILASPUR WRIT PETI'I'wN (s )_No.?g537§01 1 SB /, Syed Ashfar Hussain, aged about-66 ycars, S/o Shri Late Shri. M. A. Hussain. Retired Head Master, R/o Post-Khajanchi Toli, District— PETITIONER Jashpur (C G) ‘ " ELERSUS y RESPONDENT 1/ The State 'ofChhattisgarh through~ The Secretary, Schedule Caste, Schedule Tribe and Backward Class Welfare Department, Mantralaya, DKS Bhawan. District- Raipur (CG) ”he Commissioner Scheduled Tribe and Schedule Caste Development Clihattisgeirli, District-Raipur (Chhattisgarh) /, 3. The Asstzmt Commissioner, Tribal Development, District-Jashpur(CG) /"' _ 7 ' 4. The .loml Director Funds Accounts and Pension Department,I)istrict—Ambikapur (Chhattisgarh) $gwmmwwxwtx (m M u mm w l «k l n m 2 3 OF INDIA T PETITION UNDER ARTICLE 226 OF THE CONSTITUTION DAMUS OR ANY OTHER WRIT ORDER FOR ISSUANCE 014 WRIT OF MAN OR DIRECTION AS DEEMED FIT WRI RESPONDENTS HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) NO.2855 of 2011 Syed Ashfar Hussain PETITIONER State of Chhattisgarh & Others (Writ Petition under Articie 226 of the Constitution of India) Single Bench: Hon‘ble Shri Manindra Mohan Shrivastava, J, Shri Azad Siddiqui, counsel for the petitioner. Ms. Sunita Jain, Panel Lawyer for the smte. Present :— ORDER ORAL (Passed on this 13 day of June, 201 1) With the consent of learned counsel appearing for the parties, the petition is heard hnally. By this petition, the petitioner impugns the order dated 25-07-2007 (Annexure—Plz) on the ground that an amount of Rs.34.656/- has been directed to be recovered from the retiral dues of the petitioner. Learned counsel appearing for the petitioner submits that the issue asto whether recovery of excess payment for no fault of the employee can 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 of Sahib Ram v. State of Haryana and others, 1995 Supp (1) SCC 20. and further followed by this Court in the matter of Vidyadhar Tiwari vs. The State of Chhattisgarh §t Others, 2006 (1) MPHT 105 (CG) and Vidya Shanker Tiwari v. State of MP. (Now State of Chhattisgarh) and others, 2006(2) MPHT 31 (CG). In the instant case, the impugned order has been passed without affording any opportunity of hearing to the petitioner. Learned counsel appearing for the State does not controvert the allegation that no opportunity of hearing was afforded before the impugned orders were passed. Learned counsel relies on Rule 65 of the Chhattisgarh Civil Services (Pension) Ruies, 1976 (for short ‘the Rules, 1976‘) for the purpose of recovery and adjustment of Government dues. The contention of the petitioner that even for exercising power under Rule 65 of the 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 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 learned counsel for the petitioner merits acceptance. 6. This Court. in the case of Vidyadhar Tiwari (supra) has held that the excess payment. if any, made to the petitioner‘ he was not at fauit 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 from the pensionary benefits/gratuity amount of the petitioner will not be just and proper. 7. ln Syed Abdul Qadir & others v. State of Bihar & Others, (2009) 3 SCC 475, the Supreme Court observed that excess payment of emoluments/ allowances cannot be recovered if the excess amount was not paid on account of any mis-representation or fraud on the part of the employee and if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowances or on the basis of a particular interpretation of rule/order. which is subsequently found to be erroneous. 8. lt 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 of law, if any. 9. ln view of foregoing and for the reasons stated hereinabove, this petition is allowed. The impugned order dated 25-07-2007 (Annexure — P/2) regarding recovery of Rs.34,656/- from the retiral dues of the petitioner is hereby quashed. The petitioner is entitled to full pensionary benefits/gratuity amount without any deduction. lf the said amount is already deducted, the same shall be payable to the petitioner with simple interest @ 6% per annum. No order asto costs. Sd/- Manindra Mohan Shrivastava Judge Tumane