Samik Ram v. State of Chhattisgarh

Judgment

#1. State of Chhattisgarh ^ ^',J, , ^y , ^.^ \"^ Through : The Secretary Education Department, D.K.S. Bhawan, Mantralaya Raipur (C.G.)

#2. Deputy Director, Accounts, Treasury & Pension Department, Bilaspur (C.G.) District Education Officer, Surguja (C.G.)

#3. ^WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRIT, ORDER OR DIRECTIONS

HIGH COURT OF CHHATTISGARH : BILASPUR WritPetition (S) No.351 of 2008 PETITIONER Samik Ram Versus RESPONDENTS State of Chhattisgarh & Others Single Bench : Hon'ble Shri Justice Prashant Kumar Mishra Present:- Shri S.S. Rajput, Advocate for the petitioner. Shri P.K. Bhaduri, Panel Lawyerforthe State. ORAL ORDER (Passed on this 31st day of October, 2013)

#3. Heard learned counsel for the parties. the proceedings the petitioner seeks quashing of By this petition, initiated by the respondent authorities for recovery of Rs.1,51,436/- vide Annexure - P/1. Learned counsel appearing for the petitioner would submit that after the impugned proceeding in respect of retirement of the petitioner, recovery of Rs.1,51,436/- was made. Relying on the judgment of Supreme Court in Sahib Ram vs. Stete of Haryana and others^, which has been followed by this court in the matter of Vidyadhar Tiwari vs. The State of Chhattisgarh and others , and Ramchandra Kurup Vs. State ofC.G. & others3, learned counsel for the 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.

#4. On the other hand, learned State Counsel would submit impugned recovery proceeding was initiated on the basis of consent given by the petitioner. Learned State counsel has relied on judgment of Supreme Court in the matter of Chandi Prasad Unlyal and Ors. Vs. State of Uttarakhand 5^ • l995Supp(1)SCC18 2 2006 (1)MPMT 105 32010(3)CGLJ400 ^ ancf Ors. to argue that recovery of excess payment of public money paid fraud or to an employee has to be made as the concept of 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 Col. B.J. Akkara (Retd.) V. Govemment of India and other^, the Supreme Court has held that restraining recovery back of excess payment is granted by the courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the recovery is employees from the hardship that will be caused if implemented with further observation that a Government servant, particularly one in the lower rungs of service would spend whatever If he receives an emoluments he receives for the upkeep of his family. 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 behalf. In Syed Abdul Qadir and others vs. State of Bihar and others6, the Supreme Court restrained the department from recovery of excess amount paid by holding thus : "Undoubtedly, the excess amount that has been paid to the appellants - 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 It would not be out of ptace were entitled to. to mention here that the Finance Department in its counter-affidavit, admitted that it had, was a bonafide mistake on their part. The excess payment made was the result of the rule that was wrong interpretation of applicable to them, for which the appellants cannot be held responsible. Rather, inaction, whole confusion was because of negligence and carelessness of the officials the Government of Bihar. concerned of Learned Counsel appearing on behalf of the appellants-teachers submitted that majority