Disrict Education Officer, Janjgir v. State of Chhattisgarh & Ors.

2. Disrict Education Officer, Janjgir Distt. Janjgir-Champa (C.6.)

3. Joint birector, Treasury, Account & Pension, Bilaspur Division, District Bilaspur (C.6.) WRIT PETITEON UNOER ARTECLE 226 OF THE CONSTETUTCON OF IN&IA •s. hUGHCOURT OF CHHATDSGA^H^BILASPUil WritPetition (S) No.1251 of 2013 PETIT10NER Dorilal Sharma Versus RESPONDENTS State of Chhattisgarh & Others Single Bench : Hon'ble Shri Justice Prashant Kumar Wlishra Present:- Shri D.R. Patel, Advocate for the petitioner. Shri Rakesh Jha, Govt. Advocate for the State. ORALORDER (Passed on this 9th day of October, 2013) Heard learned counsel for the parties.

1. By this petition, the petitioner seeks quashing of endorsemenfin respect of recovery of Rs.23,469/- made by the respondent No.2 in the service book of the petitioner.

2. Learned counsel appearing for the petitioner would submit petitioner attained the age of superannuation on 31-1-2010 and thereafter, the impugned endorsement in respect of recovery of Rs.23,469/- was made in the service book of the petitioner.

3. Relying on the judgment of Supreme Court in Sahib Ram vs. State of Haryana and others , which has been followed by this court in ihe matter of Vidyadhar Tiwari vs. The State of Chhattisgarh and others2, and Ramchandra Kurup Vs. State of C.G. & others , learned counsel forthe petitioner would submit that recovery of excess payment cannot be made without giving any opportunity of hearing to the petitioner when '< payment has not been obtained by him by committing fraud or \ misrepresentation. 1 1995Supp(1)SCC18 22006(1)MPHT105 32010(3)CGLJ400 s. -:aa^ •^ A. ?'? •W^J ^^.°'s»" ^s On the other hand, learned State Counsel has relied on judgment of Supreme Court in the matter of Chandi Prasad Uniyal and Ors. Vs. State of Uttarakhand and Ors. to argue that recovery of excess payment of public money paid to an employee has to be made as the concept of fraud or misrepresentation is not applicable to such situation. According to the learned State Counsel, any amount paid/ received without authority of law can always be recovered. In the matter Co/. B.J. Akkara (Retd.) V. Govemment of India and others , the Supreme Court has held that restraining recovery back of excess payment is granted by the courts not because of an^ right ih the employees, but in equity, in exercise of judicial discretion, to relieve the employees from the hardship that will be caused if recovery is implemented with further observation that a Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, and relief was granted in that "s behalf.

6. In Syecf Abdul Qadir and others vs. State of Bihar and others, the Supreme Court restrained the department from recovery of excess amount paid by holding thus : ^ \ "Undoubtedly, the excess amount has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants atso had no knowledge that the amount that was being paid 4 2012 AIRSCW 4742 5 [(20Q6) 11 SCC 709] : (2006 AIR SCW 5252) 6 : (2009 AIR SCW 1871) [(2009) 3 SCC 475] ~s. ,..^^ •a ^i"Ssh y I^'.o:-^. to them was more than what they were entitled It would not be out of place to mention here to. that the Finance Department had, in its counter- affidavit, admitted that it was a bonafide 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 appellants-teachers submitted that majority o1I;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 appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made." While holding in Chandi Prasad Uniyal (supra) that any amount paid/ received without authority of law can always be recovered and the ^ concept of fraud or misrepresentation is not applicable in such situation, the Supreme Court has clearly laid down the exceptions to the rule and the exceptions mentioned in the Judgment of Co/. 8.J. Akkara (Retd.) (supra) and SyedAbdul Quadir (supra) has been referred with approval. One of the exceptions carved out by the Supreme Court in the matter of Syecf Abdul Qadir (supra) is that where the beneficiary of excess payment has either retired or is on the verge of if, to avoid any hardship to such employees/teachers, the recovery was quashed.

8. In the present case also petitioner retired from service on 31-1-2010. Steps for recovery of excess payment were made after his retirement. Since the petitioner was not a highly paid employee, the present case squarely fall within the exception carved out by the Hon'ble Supreme Court in the matters of Syecf Abdul Qadir (Supra) and Chandi Prasad Uniyal (Supra). '*«>. fI!1["T']-^iT|ls=I!E-3.r

10. For the aforesaid reasons, this Court has no hesitation in quashing the impugned recovery of Rs.23,469/- and accordingly the said recovery is quashed. Respondents are directed to finatize the pension case of the petitioner, if not finalized eariier, as early as possible, without insisting on payment of the amount mentioned in Annexure P/1. 11 tn the result, the writ petition is allowed in above terms. No order as to costs. -^ ______—— Gowri Sd//- prashant Kumar Mishra Judge •^. ~s