WRIT PETITION N0^2'7..^006 SfNOLE v. State of Chhattisgarh

HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition No. 3272 of 2006 Petitioner Smt. Basaat Thakur Versus Respondents State of Chliattisgarh & ofhers WRrr PETITION UNDER ARTICLE 226/227 OF CONSTrTUTION OF INDIA (SB: Hon'ble Shri Satish K. Agnihotri J.) Shri Vineet Kumar Paadey, Advocate for fhe petitioner. Ms Smita Ghai, Paael Lawyer for fhe State/respondents No. 1 to 4. O RD E R (Oralt (Passed on this 22nd day ofSeptember, 2009) Heard. ChaUenge in fhis petition is to fhe order dated 24.4.2006 (Annexure P/l), whereby recoveiy of Rs. 79,728/- (Rupees Seventy-iuile fhousand, Seven Hundred and Tweuty-e^ht) was directed to be inade from. the retiral benefits, on account of excess payment inade to the petitioner. The facts iu brief are that on 29.10.1960 fhe petitioner was initiatly appointed on fhe post ofAssistantTeacher. Subsequentiy, the petitioner was proiaoted to fhe post of Upper Division Teacher on 29.1.1972. Thereafter, the petitioner was promoted on the post of Head Master. WIule workmg on the post of Head niaster ia Nagar Palika Middle School, Sarac^arh, Distnct Raigarh, petitioner retired froin service on 31.3.2002. After rettreiiient of the petitioner, by impugned order dated 24.4.2006 (Annexure P/ 1) a rccovery for a suiii ofRs. 79,728/- was directed to be made from fhe retiral benefits offhe petitioner, towards excess payinent. Learned counsel appearing for fhe petitioner would subinit fhat fhe petitioner was not given any opportuiuty to explain about the paym.ent niade to her. Thus, the impugned order is vitiated for want of conipliance of the prmciples of natural justice aad fair ^•^" play in action. Learned couasel further subnuts that there was no fault on the part of the petitioner and the amouiit was paid to her iu accordance with the pay scales, revised aad fixed by fhe respondents from tixue to tiine pursuaat to her promotion. The respondents camiot recover the auiount, already paid to the petitioner after hcr retu-einent, fhat too wifhout foUowing the principles ofnattiraljustice. Despite notice dated 5.7.2006 and fhereafter grant of time on

4.9.2006, 21.2.2007, 2.11.2007 and 22.1.2008, no response has been filed by fhe respondents/State. It appears respondents have nofhiug to say in ttie niatter. However, leamed couiisel appearing for fhe respondents/State would subinit fhat on verification by the Joiat Director, Treasuiy aud Accouuts, Bilaspur Division, Bilaspur, in fhe course of setflement of retiral benefits, it was found fhat the excess payinent of Rs. 79,728/- was made to fhe petitioner that caa be recovered from fhe retiral benefits. Havlr^ heard leamed counsel appearing for the pardes and bswlDg perused the documeuts appended thereto, it is apparent fhat no show cause notice was issued to fhe petitiouer. It is not a case of the respondents fhat fhe petitioner has obtained the benefit ofproinotion and pay scale by fraud, or misrepresentation. Thus, the respondents are not entifled to recover the excess amount, if aay, J&oin fhe retfcral benefits of fhe petitioner, wifhout afforrling an opportunity ofhearmg.

6. The issue asto wbether recoveiy ofexcess payment can be inade after retireiuent offhe em.ployee is no longer res iutegra. The same settled Hon'ble Supreme Court -3- vanous decisions. In Syed Abdul Qadir aad others vs. State of Bihar aad others1, Honlale Three Judges of fhe Supreme Court, havtng considered all the aspects of fhe aiatter aud the decisions rendered by the Supreine Court ia the past, observed as under: "57. This Court, in a catena of decMions, has granted relief agaiast recoveiy ofexcess payinent ofemoluiuents/aUowances the excess ainount was not paid on account of any if (a) inisrepresentation. or fi-aud on fhe part of fhe einployee, aad (b) if such excess payinent was inade by the employer by applying a wrong principle for calculating the pay/atlowaace or on fhe basis of a particular interpretation of rule/order, which is subs'equently found to be erroneous. The reUef agamst recovery is granted by courts not 58. because ofany right ia the eiaployees, but ia equity, exercisiug judicial discretion to relieve fhe einployees finm the hardship that wffl be caused if recovery is ordered. But, tf in a given case, it is proved that fhe einployee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases wliere the en-or is detected or corrected withui a short tune ofwrong payment, fhe niatter being ia fhe reahn of judicial discretion, courts inay, on the facts aad circiunstances of auy particular case, order for recovexy of fhe amount pajd ia. excess. See Sahib Ram v. State of Haryana, Shyain Babu Verma v. Union of India, Union of India v. M. Bhaskar, V. Gaiigaram v. Director, Col. B.J.Akkara (Retd.) v. Govt. of India, Pursbottam Lal Das v. State of Bihar, Punjab National Bank v. Maujeet Singh and Bihar SEB v. Bijay Bhadur."

7. Applying tbe weU setUed principles of law to fhe facts of fhe case, where the impugned order has been passed wifhout affordmg any opportuuity of heariug to the petitioner, the petition fa allowed. The mipugned order dated 24.4.2006 (Annexure P/l) set-aside. The petitioner is entitled to fdU retiral benefits wifhout any deduction. No order asto costs. Sd/- Satish K. Agnihotri Judge TbAut (2009) 3 SCC 475