Ramdin Maitry & Shivnath Maitry v. State of Chhattisgarh & Ors.

Judgment

1. Versus State of Chhattisgarh, Through the Secretary, Department of School •Education, Building, D.K.S. Mantralaya, Raipur, Chhattisgarh.

2. Accountant General, Chhattisgarh, Raipur(CG).

3. Director, Public Instructions, Directorate at Raipur (CG).

4. Collector, Janjgir-Champa(CG).

5. District Education Officer, Janjgir - Champa (CG).

6. Block Education Officer, Dabhra, District Janjgir-Champa (CG).

7. Principal, Janpad Primary School, Kate Koni, Khurd, Dabra, Dist Jangir-Champa (CG). WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA -:f\ '* t Hit T^ '^WKf^, W^\WW, fq<ni'M^< <nwir it»*<i<:t» ^..±.^..:.U:th^....... •V^lOO^icx ~<^K 3)^1 (•jq^l'i*?) dll^ijl W ft'tl* WIT SII^T JR^NT •(^iiwaft?! <m^i '<;S1^^1 fV^ ^ ly^ <f^R5X ^'aiRngn^r

(SB: Honlle Shri Satish K. 2A2009 lihotri, J) Shri B. D. Guru, Advocate flor the petitioners. Shri Yashwant Singh Th^kur, Deputy Advocate General with Shri M. P. S. Bhatia, DeputyGovtj, Advocateforthe respondents/State. Shri K. R. Pisda, Director P(iblic Instructions, Chhattisgarh. Ms Sharmila Singhai, ^ssistant Solicitor General 5402, 5403, 5405, 5464, Accountant General, Chhattisgarl|i. Writ Petitions (S) No. 5400J 5465, 5466, 5467, 5468, 5469,1 5498,5499,5500,5501,5502, 5^ these writ petitions haj 5470, 5471, 5472, 5473, >32 and 5809 of 20)7. fe been disposed of by a common order dated 9.9.2009, jiaased in Writ Petition (S) No. 5400/2007 & other 20 conne^ted matters. AII ,.l - --—-——— Sd/- Satish K. Agnihotn Jadge w«-Q«ii'ftt isswn <i^-iit;«iM—FS/95—11/2008—1,00,000. ^ < y A^ ^•?' HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) No. 5400 of 2007 PETITIONER Smt. Dayamati Upadhyay RESPONDENTS : State of Chhattisgarh 85 others VERSUS And W.P.(S) Nos. 5402, 5403, 5405, 5464, 5465, 5466, 5467, 5468, 5469, 5470, 5471, 5472, 5473,5498,5499, 5500,5501, 5502, 5532 and 5809 of

2007. WRIT PETITIONS UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA (SB: Hon'ble Shri Satish K. Agnihotri J.) Shri B. D. Guru, Advocate for the petitioners. Shri Yashwant Singh Thakur, Deputy Advocate General with Shri M. P. S. Bhatia, Deputy Govt. Advocate for the respondents/State. Shri K. R. Pisda, Director Public Instructions, Chhattisgarh. Ms Sharmila Singhai, Assistant Solicitor General for the Accountant General, Chhatdsgarh. ORDERtoral) (Passed on this 9th day of September, 2009) Heard.

1. The aforementioned 2 1 writ petitions involve common question of facts and law, asto whether, recBvery of excess payment, if any, raade to the petitioners, can be made without following the basic principles of natural justice, as no opportunity of hearing was afforded to the petitioners before the impugned orders dated

1.8.2007 (Annexure P/l) and 7.8.2007 (Annexure P/2) were passed. Therefore, all the Writ Petitions (S) No. 5400, 5402, 5403, 5405, 5464, 5465, 5466, 5467, 5468, 5469, 5470, 5471, ,;. -3:5'iSi"% %• '•<', 'V".^ te,.s. 5472, 5473, 5498, 5499, 5500, 5501, 5502, 5532 and 5809 of 2007 are being disposed of by this common order. Learned counsel appearing for the petitioners submits that the petitioners have not made any misrepresentation or fraud, so as to get undue monetaiy benefit. The impugned orders dated

1.8.2007 (Annexure P/l) and 7.8.2007 (Annexure P/2), directing recovery of money have been passed without following the basic principles of natural justice, as no opportunity of hearing was afforded to the petitioners before the impugned orders were passed. To substantiate his submission, learned counsel rely on a decision of this Court in Parmeshwar Sahu &, others Vs. State of Chhattisgarh & others, dated 16th June, 2009, Writ Petition (S) No. 3677 of 2006. Shri Yashwant Singh Thakur, learned Deputy Advocate General with Shri M. P. S. Bhatia, learned Deputy Govt. Advocate, appearing for the respondents/State would submit that at the instance of the office of the Accountant General, Chhattisgarh, the money, withdrawn from the G.P.F., has been directed to be recovered, as it has been reported that there was some forgery, on the basis of forged authentication by the authorized officer. Ms Sharmila Singhai, learned Assistant Solicitor General, appearing for the Accountant General, Chhattisgarh, would submit it has been found that the authentication was forged, accordingly the letter dated 28.5.2007 was sent to the officer concerned for holding a detailed enquiiy and taking appropriate action thereon. The Office of the Accountant General had not directed to recover any money, either after enquiry or <' -?^»,. ' • 1 1 v v^ £': .^' @) before enquiry. The amount has been directed to be recovered by the authorities concerned without completion of the enquiiy.

5. I have heard learned counsel appearing for the parties, perused the pleadings and docuinents appended thereto. The law is very settled on the point of recovery of money from government employees.

6. It is evident that the payment was made to the petitioners not on account of any misrepresentadon or fraud. It is also not clear asto whether the petitioners knew about the fact payment made to them was in excess. According to the respondents, the payment was withdrawn from the G.P.F. on the basis of forged authentication letters.

7. Law is well-settled. The Hon'ble Supreme Court, in Syed Abdul Qadir and others v. State ofBihar and others1, having considered all the decisions of the Supreme Court in Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union oflndia, Union oflndia v. M. Bhaskar, V. Gangaram v. Director, Col. B.J.Akkara (Retd.) v. Gout. of India, Purushottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bahadur, observed as under: excess against recovery "57. This Court, in a catena of decisions has granted relief emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud if such excess on the part of the employee, and (b) payment was rnade by the employer by applying a wrong principle of calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. payment '(2009) 3 SCC 475

58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employee from the hardship that will be caused if recoveiy is if in a given case, it is proved that the ordered. But, employee had knowledge that the paynient received was in excess of what was due or wrongly paid, or in case where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union oflndia, Union of India v. M. Bhaskar, V. Gangaram v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bahadur. the Finance Department had,

59. Undoubtedly, the excess amount that has been paid teachers was not because of any to the appellant 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 were entitled to. It would not be out of place to mention here in its counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to appellants cannot be held them, 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 appellant teachers submitted that majority of 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 appellant teachers, we are of the view that no recoveiy of the amount that has been paid in excess to the appellant teachers should be made. " for which the

8. This is a case where the enquiry is still pending in regard to the issue of forged authentication letter. Thus, misrepresentation or fraud has not yet been established on ttie part of the employees. By letter dated 28.5.2007 the office of the Accountant General has directed for taking action into the matter, after enquiry. Having regard to the faets situation of the case, when enquiry is pending, no recovery can be made before conclusion of the enquiry. Admittedly, the recovery orders have been passed without following the basic principles of natural justice as no opportunity of hearing was afforded to the petitioners before the impugned orders were passed.

10. For the reasons mentioned hereinabove, the petitions are allowed. The inipugned orders dated 1.8.2007 (Annexure P/l) and 7.8.2007 (Annexure P/2), are quashed. However, liberty is reserved to the respondents/authorities to pass order, if so advised, in accordance with law, after conclusion of the enquiry. No order asto costs. ——--—^rr-.—-~ Satish K. Agnihotri Judge Thakur