x32 HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) N0. 5726 0f2007 A.K.Majumdar. VERSUS RESPONDENTS : State of Chhattisgarh & Others. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon’ble Shri Satish K. AgnihotrihJ. x is sPresent: Shri Prakash Tiwari with Shri V.Vijay, Advocatess for the petitioner. Smt. Smita Ghai, Panel Lawyer for the State/respondents 1, 2, 4 and 5. Shri A.S.Kachhwaha, Advocate for the respondent N0. 3. ORDER ORAL (Passed on 24 day of September, 2009) Heard learned counsel for the parties. 1. The petitioner impugns the order dated 14”‘ March, 2006 (Annexure P/l) and 6m July, 2006 (Annexure P/5) on the ground that an amount of Rs. 29,622/- has been directed to be recovered from the retiral dues of the petitioner. 2. Shri Tiwari, learned counsel appearing for the petitioner submits that the petitioner, While working as Assistant Grade II in Panchayat and Rural Development Department, retired from service voluntarily on 315i March, 2001. The pension was not released within the statutory period and thereafter, a letter dated 05th May, 2005 (Annexure R/l-l) was issued by the respondent No. 4 to the petitioner that if the excess amount to the tune of Rs. 29,622/- is not deposited, the pension may not be settled. The petitioner, in order to get the other retiral benefits at the earliest, gave his consent on 2nd May, 2006 (Annexure R—l/5) to the extent that if any excess payment has been made to him, the same may be adjusted from his retiral dues. Shri Tiwari further submits that there is no misrepresentation or fraud committed by the petitioner. The payment, whatsoever, was made by the a respondents on their own for which the petitioner cannot be held liable. Shri Tiwari relies 0n a decision of Supreme Court in Syed Abdul Qadir and others v. State ofBihar & Others]. On the other hand, Shri Kachhwaha, learned counsel appearing for the respondent No. 3 and Smt. Ghai, learned Panel Lawyer for the State/respondents l, 2, 4 and 5 submit that the petitioner has consented by letter dated 2nd May, 2005 to deduct the excess payment from his retiral benefits. Thus, the petitioner is not entitled to any relief claimed in this petition. The respondents are within their rights to recover the same when there was a consent by the petitioner and the petitioner was intimated about the recovery of excess payment. In the facts of the present case, admittedly the petitioner sought voluntary retirement which came into effect on 3 13‘ March, 2001. The petitioner was not granted any retiral benefit until and unless consent from the petitioner was obtained on 2"d May, 2005. . The issue asto whether recovery of excess payment can be made after retirement of an employee after about 5 years is no longer res integra, the same has been settled by the Supreme Court in the matter of Sahib Ram v. State 0f Haryana and othersz, and further followed by this Court in the matter of Vidyadhar Tiwari v. The State of Chhattisgarh & Othersa and Vidya Shankar Tiwari v, State of MP. (Now State of Chhattisgarh) and others". 1 2 (2009) 3 scc 475 3 1995 Supp (1) scc 20 4 2006 (1) MPHT 105 (CG) 2006 (2) MPHT 31 (CG) In Syed Abdul (supra), the Supreme Court has observed that excess payment of emoluments/allowances 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 principle for calculating the pay/allowances or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. It 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. Thus, the petitioner is entitled to full retiral benefits without any deduction/adjustment of excess payment and the employer is not entitled to recover any excess amount from the retiral dues of the petitioner, particularly after a period of five years ofretirement. In View of the foregoing and for the reasons stated hereinabove, this petition is allowed. The impugned orders dated 14th March, 2006 (Annexure P/l) and 6th July, 2006 (Annexure P/5) regarding recovery of Rs. 29,622/— from the retiral dues of the petitioner are hereby quashed. The petitioner is entitled to full pensionary benefits/gratuity amount without any deduction. If 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/— Satish K. Agnihotri Judge Amjt