Beduram Sahu vs State of Chhattisgarh and Others

S.K. Agnihotri, J.—With the consent of learned counsel appearing for the parties, the petition is heard finally.

By this petition, the petitioner impugns the order dated 5-3-2009 (Annexure -P/4) on the ground that an amount of Rs. 37,374/- has been directed to be recovered form the retiral dues of the petitioner.

The indisputable facts, in brief, are that the petitioner working as Head Master in the Government Middle School, Boida (Pali), Block Pali, District Korba, retired from his service on attaining the age of superannuation on 14-3-2006. Thereafter, a notice dated 22-9-2008 (Annexure-P/2) was issued to the petitioner to produce all the documents with regards to payments made to him for settlement of pensionary dues. Pursuant to the said notice, the petitioner submitted his reply on 29-9-2008 (Annexure-P/3). However, all of a sudden without assigning any reason, the impugned order dated 5-3-2009 (Annexure-P/4) was passed holding that the excess payment to the tuneof Rs. 37,374/- has been made to the petitioner and no retiral dues could be released unless the petitioner deposits a sum of Rs. 37,374/- Thus, this petition.

Learned counsel appearing for the petitioner submits that the issue as to whether recovery of excess payment for no fault of the employee can be made without following principles of natural justice is no longer res Integra, the same has been settled by Supreme Court in the matter of Sahib Ram v. State of Haryana and others 1995 Supp (1) SCC 20 and further followed by this Court in the matter of Vidyadhar Tiwari (Supra). In the instant case, the impugned order has been passed without affording any opportunity of hearing to the petitioner.

Learned counsel appearing for the State does not controvert the allegation that no opportunity of hearing was afforded before the impugned order was passed. However, he relies on Rule 65 of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short ''the Rules, 1976'') for the purpose of recovery and adjustment of government dues.

The contention of the petitioner 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, the State/authorities have not afforded any opportunity of hearing to the petitioner to put forward his case as to why the deduction from the gratuity amount being excess amount cannot be made. The contention of the learned counsel for the petitioner merits acceptance.

This Court, in vidyadhar Tiwari (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 Syed Abdul Qadir and Others Vs. State of Bihar and Others, , the Supreme Court observed that excess payment of emoluments/ allowances cannot be recovered if the excess amount was not paid on account of any mis-representation 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 on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

It is not the case of the respondents that the excess payment has been made to the petitioner on account of any mis-representation or fraud on the part of the petitioner. The excess payment might have been made by wrong calculation or wrong interpretation of the provisions of law, if any.

The supreme Court as well as this Court in a catena of decisions, time and again reiterates that no recovery of excess payment for no fault of the employee can be made without following the principles of natural justice. This Court in Ramchandra Kurup v. State of C.G & Others WP (S) No. 3663 of 2009 decided on 23-11-2009, and other connected matters, observed as under:

A common thread running into the above decisions of the Supreme Court is that, for recovery of excess payment of emoluments/allowances, there are three conditions wherein the excess payment may be recovered, namely (i) excess payment was made on account of misrepresentation or fraud on the part of the employee, (ii) the employee had knowledge that the payment received was in excess, and (iii) the error was corrected within a short span of time of wrong payment....

In view of foregoing, this petition is allowed. The impugned order dated 5-3-2009 (Annexure-P/4) regarding recovery of Rs. 37,374/- from the retiral dues of the petitioner is hereby quashed. The petitioner is entitled to full pensionary benefits/gratuity amount without any deduction. If the said amount is already deducted, the same shall be payable to the petitioner with simple interest @ 6% per annum. No order as to costs.