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2013 DIGILAW 22 (CHH)

S. N. CHISHTI v. STATE OF C. G.

2013-01-10

SATISH K.AGNIHOTRI

body2013
ORDER 1. With the consent of learned counsel appearing for the parties, the matter is heard finally. 2. Challenge in this petition is to the order dated 22.05.2012 (Annexure P/1), whereby, the petitioner has been directed to deposit a sum of Rs. 35,667/- holding it to be excess payment made to the petitioner during the course of his service. 3. Shri Prajapati, learned counsel for the petitioner submits that the punitive order of recovery has been passed without affording an opportunity of hearing to the petitioner. Shri Prajapati also submits that the issue as to whether recovery of excess payment for no fault of the employee can be made without following the principles of natural justice is no longer res integra. The same has been settled by the Supreme Court in various decisions (See Syed Abdul Qadir and others Vs. State of Bihar and others (2009)3 SCC 475 ). This Court, relying on the above decisions has passed several orders, directing refund of the amount, if any, recovered from the employees, where the employees were not given any opportunity to explain about the excess payment, if any, made to them. 4. On the other hand, learned counsel appearing for the State while supporting the impugned action taken by the respondent authorities submits that any amount paid/ received without any authority of law can always be recovered. In support of his contention, learned counsel placed reliance upon the decision of the Supreme Court rendered in Chandi Prasad Uniyal and Ors. Vs. State of Uttarakhandand and Ors 2012 AIR SCW 4742. 5. In Chandi Prasad Uniyal (supra), the Supreme Court observed as under : "16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 17. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (2009 AIR SCW 1871) (supra) and in Col. B.J. Akkara (retd.) case (2006 AIR SCW 5252) (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered." 6. There is no quarrel on the point that no employee is entitled to retain the public money as a matter of right. However, recovery of payment, which is punitive in nature, cannot be passed without following the basic principles of natural justice. According to the learned counsel for the petitioner no notice has been given to the petitioner to put forward his case as to whether the amount was excess, as the decision was taken by the authorities ex parte, which is not permissible under the provisions of law. 7. Be that as it may, it is a trite law that no order prejudicing the interest of an employee can be passed without affording an opportunity of hearing. It is not the case of respondents that opportunity of hearing was afforded to the petitioner, and the present case is such wherein notice of hearing is to be dispensed with. 8. The Supreme Court, in Rajasthan State Road Transport Corporation & another Vs. Bal Mukund Bairwa (2) (2009) 4 SCC 299 , observed as under: "35. Any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be a nullity. In A.R. Antulay this Court held: (SCC p. 660, para 55) '55. No prejudice need be proved for enforcing the fundamental rights. Bal Mukund Bairwa (2) (2009) 4 SCC 299 , observed as under: "35. Any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be a nullity. In A.R. Antulay this Court held: (SCC p. 660, para 55) '55. No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity.’ 47. The purpose of the principles of natural justice is prevention of miscarriage of justice and hence the observance thereof is the pragmatic requirement of fair play in action. (See Sawai Singh v. State of Rajasthan and Narinder Mohan Arya .v. United India Insurance Co. Ltd.)." 9. Accordingly, the impugned communication dated 22.05.2012 (Annexure P/1) directing recovery of a sum of Rs. 35,667/- from the salary of the petitioner, on account of excess payment made to the petitioner, is hereby quashed. However, liberty is reserved to the State/respondents to take steps for affording an opportunity of hearing, if so advised, in accordance with law for recovery of excess payment. 10. The petition is allowed to the extent indicated above. No order as to costs. Petition Allowed.