HIGH COURT OF CHATTISGARH BILASPUR
WRIT PETITION S NO 6890 OF 2007
Bramhanand Thakur
...Petitioners
Versus
The State Government of Chhattisgarh & Another
...Respondents
! Shri Somkant Verma counsel for the petitioner
^ Shri Pankaj Shrivastava Panel Lawyer for the State
CORAM: Honble Shri Satish K Agnihotri J
Dated: 14/12/2009
: Judgment
ORDER ORAL
Passed on this 14th day of December 2009
Writ Petition under Article 226 of the Constitution of India
1. With the consent of learned counsel appearing for the
parties, the petition is heard finally.
2. By this petition, the petitioner impugns the order
dated 17-5-2007 (Annexure – P/1) on
the ground that an amount of Rs.84,598/- has been directed
to be recovered from the retiral dues of the petitioner.
3. The indisputable facts, in brief, are that the
petitioner working as Lecturer in the Government Girls
Higher Secondary School retired from his service on
attaining the age of superannuation on 30-4-2007. All of
a sudden without assigning any reason and without
affording an opportunity of hearing, the impugned order
dated 17-5-2007 (Annexure – P/1) was passed holding that
the excess payment to the tune of Rs.84,598/- has been
made to the petitioner and no retiral dues could be
released unless the petitioner deposits a sum of
Rs.84,598/-. Thus, this petition.
4. 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 others1, and
further followed by this Court in the matter of Vidyadhar
Tiwari (Supra). In the instant case, the impugned order
has been passed without affording any opportunity of
hearing to the petitioner.
5. Learned counsel appearing for the State submits that
at the time of submission of application for release of
retrial dues, the petitioner submitted an undertaking that
if any excess payment made to him that may be recoverable
by the Government from his retiral dues. Learned counsel
relies on Rule 65 of the Chhattisgarh Civil Services
(Pension) Rules, 1976 (for short `the Rules, 1976′) for
the purpose of recovery and adjustment of Government dues.
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, 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. As far as the contention of the learned counsel
appearing for the State that the petitioner submitted
undertaking for recovery of excess payment from his
retiral dues is concerned, the same is noticed to be
rejected, as the undertaking was obtained by the State
Government after the petitioner had already retired from
his service on 30-4-2007. (See Raghuveer Sai v. State of
Chhattisgarh & Others2).
8. This Court, in Vidyadhar Tiwari (supra), 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
benefits/gratuity amount of the petitioner will not be
just and proper.
9. In Syed Abdul Qadir & others v. State of Bihar &
Others3, 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.
10. 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.
11. The Supreme Court as well as this Court in a catena
of decisions, time and again reiterates that no recovery
of excess payment for no fault of the employee can be made
without following the principles of natural justice. This
Court in Ramchandra Kurup v. State of C.G. & Others4 and
other connected matters, observed as under :
“19. A common thread running into
the above decisions of the Supreme
Court is that, for recovery of
excess payment of
emoluments/allowances, there are
three conditions wherein the excess
payment may be recovered, namely
(i) excess payment was made on
account of misrepresentation or
fraud on the part of the employee,
(ii) the employee had knowledge
that the payment received was in
excess, and (iii) the error was
corrected within a short span of
time of wrong payment..”
12. In view of foregoing, this petition is allowed. The
impugned order dated 17-5-2007 (Annexure – P/1) regarding
recovery of Rs.84,598/- from the retiral dues of the
petitioner is 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.
J U D G E
