Shabana Parween v. State Govt. of Chhattisgarh & Ors.

HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (Sl No. 2392 of2009 ^. Petitioner Shabana Parween Versus Respondents State Govt. of Chhattisgarh & another Post for Judgment & Order on ^i"d3Ly of September, 2009 Sd/- Satish K. Agnihotri Judge ..-^ HIGH COURT OF CHHATTISGARH : BILASPUR WritPetition (S) No. 2392 of 2009 31 Petitioner Shabana Panveen Versus Respondents State Govt. of Chhattisgarh & another WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA (SB: Hon'ble Shri Satish K. Agnihotri J.) Shri Somkant Verma, Advocate for the petitioner. Ms Smita Ghai, Panel Lawyer for the State/respondents. JUDGMENT BBO R D ER (Passed on this <5A""day of September, 2009)

1. The challenge in this petition is to the order dated 24.12.2008 (Annexure P/l), whereby recovery of Rs. 1,90,446/- (Rupees One Lac, Ninety Thousand, Four Hundred and Forty-sbc) was directed to be made from the pensionary/retiral benefits on account of excess payment made to late Kumari Shahida Parveen Siddque (maternal aunty of the petitioner).

2. The facts in brief are that the petitioner ( Shabana Parween) is nominee of late Kumari Shahida Parveen Siddque ( the deceased employee). The deceased employee was working on the post of Upper Division Teacher in the Education Department, under the office of the Block Education Officer, Baikunthpur, District - Surguja. She was promoted to the post of Head Master w.e.f.

1.1.1981. While working on the post of Lecturer late Kumari Shahida Parveen Siddque died on 23.5.2007. After death of Kumari Shahida Parveen Siddque, by impugned order dated

24.12.2008 (Annexure P/l) it was directed to the petitioner to give her consent. for recovery of Rs. 1,90,446/- towards excess ---------r <4^ payment. The petitioner has refused to give her consent on

4.3.2009 (Annexure P/2). Learned counsel appearing for the petitioner would submit that Kumari Shahida Par^een Siddque was not given any opportunity to explain about the payment made to her. Thus, the impugned order is vitiated for want of compliance of the principles of natural justice and fair play in action. Learned counsel further submits that there was no fault on the part of the aunty of the petitioner and the amount was paid to her in accordance with the pay scales, revised and fixed by the respondents from time to time pursuant to her promotion. The respondents cannot recover the amount, already paid to the aunty of the petitioner after her death, that too without following the principles of naturaljustice. Learned counsel appearing for the respondents/State would submit that on verification by the Joint Director, Treasury and Accounts, Bilaspur Division, Bilaspur, in the course of settlement of pensionary/retiral benefits, it was found that the excess payment of Rs. 1,90,446/- was made to Kumari Shahida Parveen Siddque during the period 1.4.1981 to 23.5.2007 (date of death), as she was granted the benefit of promotion to the post of Head Master, without there being any sanctioned post. Learned counsel appearing for the respondents/State would further submit that on 7.8.1991 (Annexure R/l), an entry was made in the ser^ice book of late Kumari Shahida Parveen Siddque to the effect that the benefit of promotion from the post of Upper Division Teacher to the post of Head Master was not permissible on the ground that no post was available, thus recovery was directed to be made. Since, while settling ofthe pensionary/retiral -y benefits it was found by the authority concerned that the excess payment was made to the aunty of the petitioner, that can be recovered from the retiral/pensionary benefits. Having heard learned counsel appearing for the parties, though the facts in detail have not been given by either of the parties, but is apparent that no show cause notice was issued to the deceased employee during her life time, even pursuant to the entry dated 7.8.1991(Annexure R/l), made in the ser^ice book. According to the respondents, the excess amount was paid to the deceased employee despite noting in the service record on

7.8.1991. It is not the case of the respondents that the petitioner has obtained the benefit of promotion and pay scale by committing sonie fraud. Thus, the nominee of the deceased employee is not liable to pay the excess amount, if any.

7. The issue asto whether recovery of excess payment can be made without following principles pf natural justice is no longer res integra. The same has been settled by Hon'ble Supreme Court in Shyarn Babu Verina and others Vs. Union of India and others1, Sahib Ram Vs. State of Haryana and others2, P. Tulsidas and others Vs. Government of A.P. and others3, Syed Abdul Qadir and others vs. State of Bihar and others4, and further followed by this Court in Vidhyadhar Tiwari Vs. State of Chhattisgarh 8& others5, Parmeshwar Sahu & others Vs. State of Chhattisgarh & others6 and several other decisions.