B.C. Ram vs State of Chhattisgarh and Another

Satish K. Agnihotri, J.—With the consent of the parties, the matter is heard finally.

Challenge in this petition is to the order dated 12-3-2003 (Annexure P-l), whereby recovery of special pay to the tune of Rs. 250/- w.e.f. 1-1-1996 has been directed to be recovered from the pay of the petitioner.

Learned Counsel appearing for the petitioner submits that the petitioner was not given any opportunity to explain about the payment made to the petitioner. Thus, this order is vitiated for want of compliance of the principles of natural justice and fair play in action. Learned Counsel further submits that there is no fault on the part of the petitioner ad the amount is paid to him in accordance with the order passed by the respondent/authority. No reason has been assigned as to on which count the special pay granted to the petitioner has been withdrawn and recovery of the same is directed. The respondents cannot recover the amount, already paid to the petitioner without following the principles of natural justice.

Learned Counsel further submits that by interim order dated 2-7-2003 passed by this Court, the effect and operation of the impugned order dated 12-3-2003 was stayed. The petitioner has retired from service w.e.f. 31st July, 2003.

Learned Counsel appearing for the parties submit that the issue involved in the present case is squarely covered by the order passed by this Court in Vidyadhar Tiwari v. State of Chhattisgarh and Ors. 2006 (1) M.P.H.T. 105 (CG).

Learned Counsel appearing for the respondents/State submits that it is true that no show-cause notice was given to the petitioner. The petitioner was not called upon to submit his explanation for payment of special pay and recovery thereafter.

The respondent-authorities have not followed the principles of natural justice and the impugned action has been taken without affording an opportunity of hearing to the petitioner. The practice of passing order involving civil consequences, without show-cause notice or without affording an opportunity, is condemned.

The issue as to whether recovery of amount already paid to the employee, without his fault or misrepresentation is no longer res integra. The same has been settled by Hon''ble Supreme Court in various decisions. In Syed Abdul Qadir and Others Vs. State of Bihar and Others, , Hon''ble three Judges of the Supreme Court, having considered all the aspects of the matter and the decisions rendered by the Supreme Court in the past, observed as under:

This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of the particular interpretation of rule/order, which is subsequently found to be erroneous.

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 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 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 of India, Union of India v. M. Bhaskar, V. Gangaram v. Director, Col. B.J. Akkara (Retd.) v. Govt, of India, Purshottam Lai Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur.

In view of the foregoing, the petition is allowed. The impugned order dated 12-3-2003 (Annexure P-l), directing recovery of special pay to the tune of Rs. 250/- w.e.f. 1-1-1996, is hereby quashed. If the amount has already been recovered, the same may be refunded to the petitioner within six weeks from the date of receipt of a copy of this order. No order as to costs.