@ WW 3mm C)?’ \Mr’ CD EN THE HIGH COURT OF JUDICATURE OF CHHATTISGARH AT BILASPUR w.P.(s.1 N0. é ?$Z /2009 PETITIONER: S/o Shri Deccharan Kurre, Aged about 63 years, Retired Head r Master, Rfo Village Mandragodi, Post Portha, Tahsil Malkharoda, District Janjgir— Champa (C.G.) VERSUS RESPONDENTS 1 . State of Chhattisgarh Through : The Secretary, Scheol Education Department D.K.s. Bhawan, Raipur (C.G.) 2‘ The Joint Director Treasury Account and Pension Bilaspur Division Bilaspur, (C.G.) 3. The District Education Officer, Janjgir’ District Janjgir—Champa (C.G.) 4. The Block Education Officer, Block Jaijaipur, District Janjgir— Champa (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN NATURE OF MANDAMUS CERTIORARY OR ANY OTHER WRIT OF LIKE NATURE ETC. ; The petitioner most humbly and respectfully begs to submit as under : \\\ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.6782 of 2009 PETITIONER Shanta Ram Kurre Versus RESPONDENTS State of Chhattisgarh and others (Writ petition under Articles 226 of the Constitution of lndia) Single Bench: Hon’bie Shri Satish K. Agnihotri, J. Present: - Shri D. R. Patel, counsel for the petitioner. Shri P. K. Bhaduri, Panel Lawyer for the State. ORAL ORDER (Passed on this 19m day of Novem ber, 2009) With the consent of learned counsel for the parties, the petition is heard / finally. (2) Learned counsel for the petitioner submits that the petitioner while working on the post of “Head Master” in the office of Block Education Officer, Jaijaipur, District Janjgir~Champa, State of Chhattisgah retired on 31—05-2008 on attaining the age of superannuation. After retirement of the petitioner, the State Government vide order dated 09-03-2009 (Annexure P/2) directed to recover a sum of Rs.81,187/- from the retiral dues of the petitioner on the ground that excess payment has been made to him. (3) Shri Bhaduri, Panel Lawyer submits that he does not controvert the allegation that no opportunity of hearing was afforded before the impugned order was passed. However, he relies on Rule 65 of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short ‘the Rules, 1976’) forthe purpose of recovery and adiustment of Government dues. (4) l have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. It is not a case of the State x , that the petitioner/employee knew the fact that the petitioner was receiving _. L... excess payment. In that View of the matter, recovery of the amount by the impugned order is not sustainable in the eye of law. (5) The Supreme Court in Syed Abdui Qadir and others v. State of Bihar & Othersf, observed that "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 employees 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 cases Where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. (6) 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, it appears that 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. (7) This Court in Vidyadhar Tiwari Vs. The State of Chhattisga‘rh and OthersZ, has held that the excess payment, if any, made to the petitioner, he was not at 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 from the pensionary benefitsigratuity amount of the petitioner’will not be just and proper. i (2009) 3 scc 475 2 2006 (1) MPHT 105 (CG) . V) gag/— (8) In Syed Abdul Qadir (supra), the Supreme Court has observed that excess payment of emolumentslanowances cannot be recovered if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and if such excess payment was made by the employer by applying a wrong principte for cafculating the paylatlowances or on the basis of a particular interpretation of rule/otder, which is subsequentiy found to be ei‘ {0‘1EQUS . (9) It is not the case of the respondents that the excess payment has been l made to the petitioner on account of any misrepresentation or fraud on the part of the petitioner. The excess payment might have been made by wrong caicuiation or wrong interpretation of the provisions of law. if any. Thus, the petitioner is entitied to fuil benefits without any deduction/adjustment of excess payment and the employer is not entitled to recover any excess amount from E\ the petitioner. (1 O) in view of foregoing and as admitted by learned counsel appearing for y the parties, this petition is allowed and the impugned order dated 09-03—2009 (Annexure-P/2) is hereby quashed. If any amount is already recovered from the petitioner, the same shall be payable to the petitioner with simple interest @ 6% per annum from the date it became due till the payment is made. No order asto costs. _ Sd/— f, Satish K. Agnihotri Judge K ‘ i p »ayv w