Shiv Kumar Sahu vs State of C.G. and Others

Satish K. Agnihotri, J.—With the consent of learned Counsel for the parties, the petition is heard finally.

Learned Counsel for the Petitioner submits that the Petitioner while working on the post of "Sthal Sahayak" in the Water Resources Department, State of Chhattisgarh, retired on 30-06-2008 on attaining the age of superannuation. After retirement of the Petitioner, the State Government vide order dated 29-09-2008 (Annexure P/1) directed to recover a sum of Rs. 47,075.40 from the retiral dues of the Petitioner on the ground that excess payment has been made to him for the period from 01-04-1982 to 30-06-2008.

In reply, the State counsel submits that the Respondent authorities have already initiated recovery proceedings for excess payment by order dated 26-06-2008 (Annexure P/4). However, the same was communicated to the Petitioner vide order dated 29-09-2008 (Annexure P/1) after his superannuation. Learned State counsel relies on an undertaking, which was obtained from the Petitioner on the date of his retirement to the effect that if any amount is due, the same will be recovered from the Petitioner.

I have heard learned Counsel appearing for the parties, perused the pleadings and the documents appended thereto. The reliance of the State counsel on so-called undertaking obtained on 30-06-2008 does not deal with recovery of any excess payment when law is well settled that if on account of miscalculation or misinterpretation, excess payment has been made to the employee, the same may not be recovered, except in cases where payment was made on account of misrepresentation or fraud on the part of the employee. It is also not a case of the State that the Petitioner/employee knew the fact that the Petitioner was receiving excess payment. In that view of the matter, recovery of the amount by the impugned order is not sustainable in the eye of law.

The Supreme Court in Syed Abdul Qadir and Others Vs. State of Bihar and Others, , observed that 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. In the case on hand, the benefit of revised pay-scale was granted to the Petitioner from the date 01-04-1982, but the revised pay-scale ought to have been granted with effect from 01-04-1983, therefore, the recovery proceedings for the excess amount were initiated against the Petitioner by sending a letter dated 29-09-2008 (Annexure P/1), after attaining the age of superannuation on the ground that the revised pay-scale has been granted to the Petitioner wrongly. Thus, it cannot be said that the recovery proceedings 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 Petitioner can be recovered, is answered negatively, as the recovery proceedings have been initiated after lapse of more than two years.

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, it appears that 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 v. The State of Chhattisgarh and Ors. 2006 (1) MPHT 105 (CG), 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 (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 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 misrepresentation 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. Thus, the Petitioner is entitled to full benefits without any deduction/adjustment of excess payment and the employer is not entitled to recover any excess amount from the Petitioner.

In view of foregoing and as admitted by learned Counsel appearing for the parties, this petition is allowed and the impugned order dated 29-09-2008 (Annexure-P/1) is hereby quashed. If any amount is already recovered from the Petitioner, the same shall be payable to the Petitioner with simple interest @ 6% per annum from the date it became due till the payment is made. No order asto costs.