Omprakash Sharma Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 1266 of 2023

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Omprakash Sharma S/o Late Bhagwan Lal Sharma, Aged About 64 Years R/o Village Chaterji Line Block No-2 Quarter No. 18, Godripara Chirmiri, District Manendragarh Chirmiri Bharatpur Chhattisgarh.

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---- Petitioner

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Versus

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State of Chhattisgarh through The Secretary, Health Department Mahanadi Bhawan, Naya Raipur, District : Raipur, Chhattisgarh

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Director, Health Department Indrawati Bhawan, Naya Raipur, District : Raipur, Chhattisgarh

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Joint Director, Health Department, Ambikapur Division, Sarguja Chhattisgarh.

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Divisional Joint Director Kosh Lekha Avam Pension, Surguja Division, Surguja Chhattisgarh.

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Deputy Director, Kosh Lekha Avam Pension, Surguja Division, Surguja Chhattisgarh.

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Collector, District Manendragarh Chirmiri Bharatpur Chhattisgarh.

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Chief Medical Officer, District Manendragarh Chirmiri Bharatpur Chhattisgarh.

---- Respondents

For the Petitioner

Mrs. Ranjan Jaiswal, Advocate

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For the Respondent /State Ms. Nupur Trivedi, Panel Lawyer

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Hon'ble Shri Justice Narendra Kumar Vyas

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Order on Board 6-3-2024

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The petitioner has assailed the order of recovery of Rs. 90,374/passed by the respondent No. 4 against him on 13-10-2021 after his retirement.

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Facts of the case, in brief, are that the petitioner retired from the post of Radiographer at Khadgawa District Manendragarh Chirmiri Bharatpur (CG) after attaining the age of superannuation. It has been stated that before superannuation of the petitioner, no demand certificate was issued and all of a sudden, recovery letter dated 13-10-2021 of Rs. 90,374/- has been issued to the petitioner. The petitioner has challenged the said recovery by filing this writ petition.

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Learned counsel for the petitioner would submit that after retirement issuance of recovery order by the respondents is bad in law. She would further submit that before retirement no order of recovery was issued to the petitioner as such recovery after retirement is against the judgment of Supreme Court in the case of State of Punjab & others vs. Rafiq Masih (White Washer) (2015)4 SCC 334. Learned counsel for the petitioner would submit that recovery of excess payment cannot be made without giving any opportunity of hearing to the petitioner, therefore, recovery order may be quashed.

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Learned State counsel would submit that Rule 65 of the Pension Rules provides that if excess payment is made to the government servant the recovery can be made from him.

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I have heard learned counsel for the parties and perused the documents

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The issue involved in this petition is whether excess payment can be recovered in view of specific provisions made in Rule 65 of the Chhattisgarh Pension Rules, 1976.

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To better understand the issue raised in this petition, it is expedient for this Court to refer to the 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. Rule 65 of the Rules 1976 reads as under:

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"Rule 65 Recovery and adjustment of Government dues:- (1) It shall be the duty of every retiring Government servant to clear all Government dues before the date of his retirement.

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(2) Where a retiring Government servant does not clear the Government dues and such dues are ascertainable;-

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(a) an equivalent cash deposit may be taken from him; or

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(b) out of the gratuity payable to him, his nominee or legal heir, an amount equal to that recoverable on account of ascertainable Government dues shall be deducted"

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Explanation-1. The expression "ascertainable Government dues" includes balance of house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, over-payment of pay and allowances and arrears of income tax deductible at source under the Income Tax Act, 1961."

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Rules 65 empowered the State Government to recover the excess payment. The judgment cited by learned counsel for the petitioner in the case of State of Punjab & others vs. Rafiq Masih (supra) is not applicable to the present facts of the case as the petitioner was class-II gazetted officer and he was not wrongly permitted to work though he should have rightly been required to work against inferior post. In the present case, excess payment towards pay has been ordered to be recovered and the Chhattisgarh Pension Rules, 1965 empowers the State to recover. Even from the pleading made in the writ petition, it is quite vivid, that the petitioner has nowhere stated that excess payment was not made and it was right fixation of pay or not, the petitioner nowhere stated that pay fixation was made in accordance with the rules, as such recovery is bad-in-law.

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The Pension Rules 1976 have been framed by the State in exercise of power under Article 309 of the Constitution of India which is binding in nature and these Rules empowered the authorities to recover the excess amount, as such recovery order issued by the respondent is within the authority of respondent. But before recovery of excess amount any notice to the

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Government servant is required because any action of the State which has civil consequence has to be given an opportunity of hearing as held by Hon’ble Supreme Court in the case of Bhagwan Das Shukla vs. Union of India 1994(6) SCC 154 wherein the Hon’ble Supreme Court has held as under:-

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“ 3.We have heard learned counsel for the parties. That the petitioner's basic pay had been fixed since 1970 at Rs, 190 p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs. 181 p.m. from Rs. 190 pan. in 1991 retrospectively w.e.f. 1812.1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not, even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There, has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25.7.1991. which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17.9,1993 as well as the order (memorandum) impugned before the Tribunal dated 25.7.1991 reducing the basic pay of the appellant From Rs. 190 to Rs. 181 w.e.f. 18.12,1970”

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The Finance Department, Govt. of Chhattisgarh has also issued circular dated 06 July, 2015 wherein certain directions for

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recovery of excess payment has been issued. From bare perusal of the circular also provides that if any incorrect order of fixation of pay has been issued then a notice will be issued to him informing the fact that wrong fixation has been done and an opportunity to make representation will be given to the Government servant thereafter speaking order has to be issued. The relevant para of the circular is reproduced below:-

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“राज्य शासनय दारा उपरक् नयायालया भुगतााय के पकररण के सनंव्यवहार हेाु पशासनककय ववभागतण कक वयिमयायुसनार वयि र शशा वकया जााा है :-

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(i) शासनककय कररचाररयण कक तुवुपटरर वेाय वयिा र र के फलसववप वकये गतये। अधिक भुगतााय सनकर सववकृधा के वबया वेायराय का पिराय , वयिा र रा पवकया का पालय वकये वबया कक गतईि पिरक्धा अथ व ा वकसनव अनय कारर सने वकये गतये पाताा सने अधिक भुगतााय इत्याविर कक जायकारव जैसने हव धयाय रे आाव है , ात्काल उ् तुवु के सनुिार हेाु उपयु् कायरवाहव सनुवयधशा कक जाये।

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(ii). ऐसने पकरर जजसनरे सनकर अधिकारव दारा वकसनव तुवुपटरर आिरेश के सनंशकिय का वयररय ललया गतया है, सनंबंधिा शासनककय सनेवक कक एक कारर बााओ सनटचया यह सनटधचा कराे हुए जारव वकया जाएगता वक उ् तुवुपटरर आिरेश कक जजसनके फलसववप अधिक भुगतााय कक ससथवधा वयिरा हुईि है, सनंशकधिा कराे हुए अधिक भुगतााय कक वसनटलव का वयररय ललया गतया है। ा कारर बााओ सनटचया रे सनंशकिय सनंबंिव वयररय का सपप कारर उलेले वकया जायेगता, जजसनसने कररचारव यविर चाहे ाक उ् आिरेश के वववू

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अभ्यावेिरय पसाुा कर सनके। यविर कररचारव दारा ककईि अभ्यावेिरय पसाुा वकया जााा है, ाक उ् अभ्यावेिरय पर पटरराः ववचारकपरांा एक व्याख्यात्रक आिरेश (Speaking order) जारव वकया जायेगता।

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(v) वसनटलव आिरेश जारव कराे सनरय पकरर के सनभव पररससथवधायण कक वविार रे ललया जाया चावहये। जहां आवशयक हक सनंबंधिा कररचारव कक वकशाण रे भुगतााय करये कक सनुवविा िरव जा सनकाव है fdUrq ऐसनव fdUrq lqfo/kk हेाु पशासनककय ववभागत कक सववकृधा पार वकया जाया चावहए।

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In the present case the State has issued recovery notice without giving opportunity of hearing in violation of the direction contained in circular dated 6^th July, 2015, therefore, issuance of recovery notice without opportunity of hearing is bad-in-law. This Court cannot lose sight of the fact that the Rules 1976 provide power to the State to recover the excess amount but the power has to be exercised in judicial manner in conformity with the principle of nature justice, therefore, it is directed that recovery shall be kept in abeyance and a show cause notice will be issued to the petitioner where he can raise all his grievances whether recovery is justifiable or not, whether the pay fixation is wrong or correct and thereafter, the respondent who has issued recovery order will decide the same in accordance with the rules. The respondent shall issue notice to the petitioner and decision with regard to legality and propriety of recovery will be taken within outer limit of 4 months from the date of receipt of the copy of the order.

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Accordingly, writ petition is allowed in part.

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Sd/-

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(Narendra Kumar Vyas) Judge

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Raju

Omprakash Sharma v. State of Chhattisgarh

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Omprakash Sharma v. State of Chhattisgarh

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