IN THE HON'BLE HIGH COURT OF CHHATTISGARH ATBILASPUR (W.P. (S) No. .....^?.S^......./09) PETITIONER f^<v^y .^^^ y^^' RESPONDENDS YERSUS : 1. Laxmi Prasad Pandey S/o. Late Raghunath Prasad Pandey, aged about - 63 year, R/o. Chakradhar Nagar Chowk Raigarh Tah & Distt. Raigarh (C.G.) State of Chhattisgarh, Through : Secretary School Education Department., D.K.S. Bhavan, Raipur (C.G.) The District EducationOfficer^ Eah & Distt. Raigarh (C.G.) The Assistant Director, Treasury Account & Pension -Division Office, Bilaspur (C.G.) The Treasury Officer, Treasury Office Raigarh Tah & Distt. Raigarh (C.G.) WRIT PETITION UNDER ARTICLE 226 OF CQNSTITUTION OF INDIA 2. —Tl^ COURT OF CHHATTISGARH AT BILASPUR WRIT PETmON (8) No. 2036 of2009 PETITIONER RESPONDENTS Laxmi Prasad Pande¥. VERSUS State ofChhattisgarh & Ofhers. WRIT PETmON L1NDER AR'HCLE 226 OF THE CONSTTTUTION OF INDIA. SB: Hon'ble Shri SatishK. AsnihoM, J. Present: Shri Anand Kesharwam, Advocate fbr Aiepetitioner. Shri M.P.S.Bhatia, Deputy Govemment Advocate fbr tfae State/respondents, . ... ...< ORDER«IRAia ,. (Passed on 23rd day of November, 2009) Heard leamed counsel appearing fbr the parties. Notice was issued to the respondents on 20 April, 2009, statiiig that the dispute liwolved is clearly covered by tfae judgnwnt aml ordar passed m. Vidyadhar Tnvart v. State ofC.G. & Others , aad the teame^St^ counsel was granted two weeks time to file retum. Thereafter, fhe? matter came tip for hearing on 24 August, 2009. No response has been filed as yet. It appears that the State has nothing to contest the matter. The pd;itioiier impugns the order dated 04t^1 August, 2008 (Amiexure P/l) on the ground that an amount of Rs. 35.256/- has been directed to be recovered from the retiral diies ofthe petitioner. Shri Kesharwani, leamed counsel appearmg for the petitioiier submits that fhe issue asto wh^her recovery of excess payment fbr no favlt of the employee can be made without following principles ofnatural justice is no longer res integra, the same has been settled by the Supreme Court in tlie !2006(1)MPHT105(CG) (^tJ- matter ofSahib Ram v. State ofHaryana and others', and fardher followed by this Court in the matter ofVidyadhar Twari (Supra). Inthe instant case, the impu^ied order has been passed without affording any opportumty of hearingto the petitioner. 4. Shri Bhatia. leamed Deputy Govermnent Advocate does iiot controvert the allegation that no opportunity ofhearing was affbrded before the impugned orders were passed. However, he relies on Rule 65 ofthe CMiattisgarh Civil Services (Pension) Rules, 1976 (for short 'fhe Rules, 1976')forthepurpose ofrecovery and adjustinent ofGovemment dues. 5. The contention oftfae petitioner that even for exerdsing power under Rule 65 ofthe P^ules, 1976, basic principles of natural justice and fair play in action are required to be followed. In the present case, the StaWauthorities 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 camiot be made. The coatention of the leamed counsd for the petitioner merits acceptance. 6. This Court, in the case of Vidyadhar Tmari (supra), has held that the excess payment, if any, made to the petitioner, he was not at fault and the amount received by him mi^it have been used by adjusting liimself accordingly treating the same ashis salary. Atthis stage, directingrecovery ofthe alleged excess amount from the pensionary beaefits/gratuity amount ofthe petitioner will not bejust and proper. 7. In Syed Abdul Qadir & others v. State ofBihar & Other/, the Supreme Court observed fhat excess payment of emoluments/allowances camiot be recovered if the excess amoimt was not paid on accoimt of any mis- 1995 Supp (1) SCC 20 (2009) 3 SCC 475 .^•^y^. ^ ,,^^^ "^, 9 representation or fraud on the part of th^ employee and if such excess payment was made by the employer by applying a wrong principle for calculatmg the pay/allowances or cn the basis ofa particular interpretation ofmle/order, which is subsequently found tb be erroneous, 8. It is not the case ofthe respondents that the excess payment has beexi made to the petitioner on account ofany mis-representation or jfraud on the part of the petitioner. The excess paym^it might have been made by wrong calculation or wrong interpretation ofthe provisions oflaw.ifarsy. , 9. In view of the foregoing and for the reasom stated hereiii^bove, this petition is allowed. The impugned orders dated 4 August, 2008 (Annexure P/l) regarding recovery of Rs. 35.256/- from the retiral dues of the petitioner is hereby quashed. The petitioner is entitled to ftill pensionary benefits/gratuity amount without any deductioii. If the said aiBOunt is already deducted, the same shall be payable to the petitioner with simple interest @ 6% per annum. No ordor asto costs. Sd/- Satish K. Agnihotri Judge Amit