S.G. Goswami v. NONE

Shri Sadhram, aged about 56 years, Post Date Assistant, Address O/o The SDO E/M, H/M Sub Division No. 1 W.R. Deptt. Darri Korba, District Korba (C.G.) Ramanand Sahu, S/o Late Shri Kripa Ram Sahu, aged about 56 years, Post Data Assistant Address : Shivam Vihar Colony, Mahadeo Ghat Raipur, Tahsil & District ^"

4. Raipur (C.G.) ^'

5. Dwas Ram Sahu S/o Late H.L. Sahu, aged about 60 years, Post Data Assistant, R/o Bada Ashok Nagar, Bazaar Para, Raipur Tahsil and District Raipur (C.G.)

6. Dewendra Giri Goswami, S/o Late Bihari Giri Goswami, aged about 53 -7 years, Post Data Assistant R/o H.N. 20/14, Dhimrapara Kota Raipur (C.G.) VERSUS RESPONDENTS l/ StateofChhattisgarh Through: Secretary, Water Resources Department, D.K.S. Bhawan, Raipur (C.G.)

2. The Chief Engineer Mahanadi Reser^air Project Water Resources Department Raipur S.R.P. Chowk, Shankar Nagar Road, Raipur 492001 (C.G.) 3: The Executive Engineer E/M Heavy Earth Moving Machinery Division Water Resources Department Raipur OCM Chowk Irrigation Department Raipur (C.G.) ^^v

4. The Executive Engineer E/M Heavy Earth Moving Machinery Division Water Resources Department Cada Building Bilaspur (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN NATURE OF MANDAMUS CERTIORARY OR ANY OTHER WRIT OF LIKE NATURE ETC. k HIGH COURT OF CHHATTISGARH : BILASPUR M® t\^ WRIT PETITION (S) N0.3079 OF 2009 PETITIONERS S.G. Goswami & Others RESPQNDENTS State of Chhattisgarh & Others Versus (Writ petition under Ari:icle 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Ajay Shrivastava, counsel for the petitioners. Shri P.K. Bhaduri, Panel Lawyerforthe State. ORDER (ORAL) (Passed on this 23rd day of October, 2009)

2. With the consent of learned counsel appearing for the parties, the petition is heard finally. By this petition, the petitioners impugn the order dated 15-6-2009 (Annexure - P/1) whereby recovery proceedings have been initiated against the petitioners on the ground that the benefit of kramonnati has wrongly been granted to them.

3. Learned counsel appearing for the petitioners submit issue asto whether recovery of excess payment can be made without following principles of natural justice is no longer res integra, the same has been settled by the Supreme Court in Sahib Ram v. State of Haryana and others , and further. followed by this Court in Vidyadhar Tiwari v. The State of Chhattisgarh & Others & Vidya Shankar Tiwari v. State of M.P. (Now State of Chhattisgarh) and others3. In the instant case, the impugned order has been passed without affording any opportunity of hearing to the petitioner. 11995Supp(1)SCC20 22006(1)'MPHT105(CG) 3 2006 (2) MPHT 31 (CG) '%^ ^ Learned counsel appearing for the State submits that it is not clear asto whether opportunity of hearing was afforded before the impugned order was passed. hlowever, learned counsel relies on Rule 65 of the Chhattisgarh Civil Services (Pension) Rules, 1976 'the Rules, 1976') for the purpose of recovery and (for short adjustment of Government dues. By placing reliance upon the decision of the Supreme Court rendered in Syed Abdul Qadir and others v. State of Bihar & Others , learned counsel appearing for the State submits the excess payment recovered from the employee concerned.

6. The Supreme Court in Syed Abdul Qadir (supra) observed that "the relief against recovery isgranted by courts not because ofany right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the is detected or corrected within a short time of wrong payment, the matter being in the realm ofjudicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. In the case on hand, the benefit of kramonnati was granted to the petitioners in the year 2007 and the recovery proceedings were initiatect in the year 2009 on the ground that the same has been granted to the petitioners wrongly. Thus, it cannot be said that the recovery proceedings (2009) 3 SCC 475 .^0 have been initiated by the State within a short period, as the same has been initiated after lapse of more than two years. Thus, the contention made by the learned counsel for the State that the excess amount paid to the petitioners can be recovered, rejected, as the recovery proceedings have been initiated after lapse of more than two years. The contention of the petitioners 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, it appears that 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 petitioners merits acceptance.

8. This Court, in Vidyadhar Tiwah (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. In Syeof Abdul Qadir (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 "% A' ^ ^ •V'N^^ s' particular interpretation of rule/order, which is subsequentlyfound to be erroneous.

10. It is not the case of the respondents that the excess payment has been made to the petitioners on account of any mis-representation or fraud on the part of the petitioners. The excess payment might have been made by wrong calculation or wrong interpretation of the provisions of law, if any. Thus, the petitioners are entitled to full benefits without any deduction/adjustment of excess payment and the employer is not entitled to recover any excess amount from the petitioners.

11. In view of foregoing and as admitted by learned counsel appearing for the parties, this petition is allowed and the impugned order dated 15-6-2009 (Annexure - P/1) is hereby quashed. If any amount is already recovered from the petitioners, the same shall be payable to the petitioners with simple interest @ 6% per annum from the date it became due till the payment is made. No order asto costs. Gowri Sd/- Satish K. Agnihotri Judge