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2014 DIGILAW 280 (CHH)

Vidya Devi Sharma v. State of Chhattisgarh

2014-07-25

PRASHANT KUMAR MISHRA

body2014
ORDER Heard learned counsel for the parties. 2. Original petitioner J.P. Sharma now represented by his legal heir Smt. Vidyadevi Sharma, has assailed the legality and validity of the order Annexure A/10 dated 24/06/1987, the order Annexure A/16 dated 21/11/1994 and the appellate authority’s order Annexure A/17 dated 07/02/1996. By Annexure A/10 the original petitioner was visited with penalty of stoppage of one increment with cumulative effect and by order Annexure A/17 his appeal against this order was dismissed as barred by limitation. By order Annexure A/16 the Divisional Deputy Director, Tribal Development, Bilaspur Division directed recovery of a sum of Rs.60,508/-from the gratuity amount of the original petitioner on the ground that the said amount was the excess payment made to him during the period 01/03/1983 to 31/01/1994. 3. It is mentioned in the order Annexure A/10 that the petitioner remained absent from duty without obtaining leave, therefore, he should show cause as to why he should not be penalized by stopping two increments. He submitted explanation on 16/02/1984 and 28/01/1987 which was found unsatisfactory, therefore, under Rule 16 of Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, 1966 (for short, ‘Rules, 1966’) he is visited with minor penalty of stoppage of one increment with cumulative effect. 4. In Kulwant Singh Gill Vs. State of Punjab, 1991 Supp (1) SCC 504 it has been held by the Supreme Court that penalty of stoppage of increment with cumulative effect is a major penalty. Since admittedly the order in posing penalty of stoppage of one increment with cumulative effect was passed under Rule 16 of the Rules, 1966 which empowers the authority to impose only minor penalty and for the fact that a regular inquiry contemplated under Rule 14 of the Rules, 1966 was not conducted, the order Annexure A/10 is vitiated because it is settled law that major penalty cannot be imposed without serving a charge-sheet, constituting a regular enquiry in the manner provided under Rule 14 of the Rules, 1966. Accordingly, the order Annexure A/10 dated 24/06/1987 and the appellate order Annexure A/17 dated 07/02/1996 are quashed. 5. In so far as order for recovery of Rs.60,508/-vide Annexure A/16 dated 21/11/1994 is concerned, suffice it would be to mention that the said order was passed without giving any opportunity of hearing and that too after about 10 months of his retirement, the petitioner having retired on 31/01/1994. 6. 5. In so far as order for recovery of Rs.60,508/-vide Annexure A/16 dated 21/11/1994 is concerned, suffice it would be to mention that the said order was passed without giving any opportunity of hearing and that too after about 10 months of his retirement, the petitioner having retired on 31/01/1994. 6. Relying on the judgment of Supreme Court in the matter of Sahib Ram Vs. State of Haryana and others, 1995 Supp (1) SCC 18 which has been followed by this Court in the matter of Vidyadhar Tiwari Vs. The State of Chhattisgarh and others, 2006 (1) MPHT 105 and Ramchandra Kurup Vs. State of C.G. & others, 2010 (3) CGLJ 400 learned counsel for the petitioner would submit that recovery of excess payment cannot be made without giving any opportunity of hearing to the petitioner when payment has not been obtained by him by committing fraud or mis-representation. 7. On the other hand, learned State Counsel has relied on judgment of Supreme Court in the matter of Chandi Prasad Uniyal and Ors. Vs. State of Uttarakhand and Ors. 2012 AIR SCW 4742 to argue that recovery of excess payment of public money paid to an employee has to be made as the concept of fraud or misrepresentation is not applicable to such situation. According to the learned State Counsel, any amount paid/received without authority of law can always be recovered. 8. In the matter Col. B.J. Akkara (Retd.) V. Government of India and others, [ (2006) 11 SCC 709 ] : (2006 AIR SCW 5252), the Supreme Court has held that restraining recovery back of excess payment is granted by the Courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees from the hardship that will be caused if recovery is implemented with further observation that a Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, and relief was granted in that behalf. 9. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, and relief was granted in that behalf. 9. In Syed Abdul Qadir and others vs. State of Bihar and others [ (2009) 3 SCC 475 ] : (2009 AIR SCW 1871), the Supreme Court restrained the department from recovery of excess amount paid by holding thus : “Undoubtedly, the excess amount that has been paid to the appellants – teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bonafide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.” 10. While holding in Chandi Prasad Uniyal (supra) that any amount paid/received without authority of law can always be recovered and the concept of fraud or misrepresentation is not applicable in such situation, the Supreme Court has clearly laid down the exceptions to the rule and the exceptions mentioned in the Judgment of Col. B.J. Akkara (Retd.) (supra) and Syed Abdul Quadir (supra) has been referred with approval. One of the exceptions carved out by the Supreme Court in the matter of Syed Abdul Qadir (supra) is that where the beneficiary of excess payment has either retired or is on the verge of it, to avoid any hardship to such employees/teachers, the recovery was quashed. 11. One of the exceptions carved out by the Supreme Court in the matter of Syed Abdul Qadir (supra) is that where the beneficiary of excess payment has either retired or is on the verge of it, to avoid any hardship to such employees/teachers, the recovery was quashed. 11. In the present case also, the original petitioner has retired in 31/01/1994. Steps for recovery of excess payment made to the petitioner was initiated after his retirement. Therefore, the case clearly falls within the exception carved out by the Supreme Court in the matter of Syed Abdul Qadir’s case (supra) and approved in Chandi Prasad Uniyal (supra). 12. For the foregoing reasons, this Court has no hesitation in quashing the impugned order Annexure A/16 whereby recovery of amount of Rs. 60,508/- has been directed on account of excess payment made to him without giving opportunity of hearing. 13. In the result, the writ petition is allowed.