mgwu 90J HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 5251 0f2007 PETITIONER Smt. P.N.Biswas W/o Late Shri NRBiswas, Aged about 65 years, Retired, Lady Health Visitor, R/o Village Chandrapur, Tahs‘ Dabhara, District : Janjgir-Champa (C.G.) VERSUS RESPONDENTS : 1. State of Chhattisgarh Through: Secretary, Medical and Health Department, D.K.S. Bhawan, Mantralaya, Raipur(C.G,) 2. Joint Director, Treasury Account and Pension, Bilaspur (C.G.) 3. Chief Medical and Health Offlcer, District Janjgir Champa (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB:_Hon’ble Shri Satish K. Agnihotri, J. Present: Shri Prakash Tiwari, Advocate for the petitioner, Ms, Sunita Jain, Panel Lawyer for the State/respondents. ORDER ORAL (Passed on 24“ day of June, 2009) Heard. By this petition, the petitioner impugns the order dated 14.10.2004, whereby the recovery to the extent of Rs. 58,338/— was ordered on account of excess payment made to the petitioner. The facts, in nutshell are that the petitioner was duly appointed as Auxiliary Nurse and Midwife in the health department. She was promoted on the post of Lady Health Visitor and thereafter, retired from services on attaining the' age of superannuation on 31.08.2002. A letter was issued on 15.2.2005 (Annexure R/2) and 28.2.2005 (Annexure R/3) directing the petitioner to produce documents for settlement of his retiral dues. Ms. Jain, learned counsel appearing for the State/respondents submits that the petitioner was granted benefit of Pandey Vetan Ayog pay scale on 1.01.1972, infact, the petitioner was entitled to the said benefit w.e.f. October, 1972. The payment made to the petitioner from 01.01.1972 to October, 1972, was excess payment and account of the erroneous pay fixation, the petitioner was paid a sum of Rs. 58,338/— in excess. Ms. Iain, learned counsel appearing for the respondents relies on the undated . declaration (Annexure IVS) where, according to the petitioner, declaration was made in order to settle the retiral disputes. The said declaration, in no manner is a declaration as it was made two months prior to the date of K 0 retirement of the petitioner‘ According to the respondents, excess payment was made on account of mis-calculation or mis-interpretation of the provisions, 32 years back. 5. Having heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto, it appears that the excess payment, according to learned counsel, if any was made to the petitioner from January, 1972 to September, 1972 as the revised pay scale became payable from the month of October, 1972. This is a case where the payment was made not on account of any misrepresentation or fault of the petitioner. The payment was ade 32 years back which the respondents have recovered in 2004 without assigning any reason or without affording an opportunity of hearing to the petitioner. The letters dated 15.2.2005 (Annexure R/2) and 28.2.2005 (Annexure R/3) are not the show—cause-notices as by these letters, the petitioner was asked to produce his documents for settlement of the dues. The alleged excess payment has already been deducted from the gratuity of the petitioner. Law on the point of excess payment and recovery thereof, later on, is well- settled. The Hon’ble Supreme Court, in Syed Abdul Qadz‘r and others v. State 0f Bihar and othersl, having considered all the decisions of the Supreme Court in Sahib Ram v. State of Haryana, Shyam Baba Verma v. Union 0f India, Union 0f India v. M Bhaskar, V. Gangaram v. Director, Col. BJAkkara (Rad) v. Govt, aflndia, Purashottam Lal Das v. State ofBihar, ' Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bahadur, observed as under: “57. This Court, in a catena of decisions has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle of calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employee from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in' excess of what was due or wrongly paid, or in case where the error is detected or corrected within a short time of wrong payment, the matter being in the realm ofjudicial discretion, courts may, on the 1(2009)3scc475 V v- m i facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State ofHaryana, Shyam Babu Verma v. Union 0f India, Union of India v. M Bhaskar, V. Gangaram v. State ofBihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bahaa’ur. 59. Undoubtedly, the excess amount that has been paid t0 the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter—affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in View the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the View that no recovery of the amount that has been paid in excess to the appellant teachers should be made. ” This is a case where no misrepresentation or fraud has been established on the part of the employees, Confusion was created on account of inaction, negligence or carelessness ofthe officials, if any. Having regard to the facts situation of the case, when the petitioners have already utilized the money for up—keep of their families, it would not be proper to direct recovery 'of the amount which has been paid to the petitioners. Even otherwise, recovery orders have been passed without following the basic principles of natural justice as no opportunity of hearing was afforded to the petitioners before the impugned orders were passed. For the reasons mentioned hereinabove, the petition is allowed. The impugned order dated 14.10.2004 (Annexure P/l) deducting a sum of Rs. 58338/— is quashed. The respondent authorities are accordingly directed to refund the amount so deducted from the gratuity, with interest at the rate of 8% p.a, from the date of deduction till its payment. The aforesaid direction shall be complied within a period of four weeks from the date‘of receipt of a copy ofthis order. No order asto costs. Satish K. Agnihotri Judge Sd/— Amit i