Gyan Chand Jain vs State of M.P. and others

Hon''ble Shri Justice Sujoy Paul

The brief facts necessary for adjudication of this matter are as under:

Petitioner is aggrieved by order dated 28/11/2006 Annexure-P/1, whereby an amount of Rs. 43,390/-is sought to be recovered from him on the ground of alleged overpayment.

Shri Nirankari submits that this order is bad in law for two reasons:-(1) The impugned order entails civil consequences and could not have been passed without following the principles of natural justice. The impugned order is passed without affording any opportunity to the petitioner. (2) There was no misrepresentation on the part of the petitioner in getting the alleged overpayment and, therefore, recovery is bad in law. Apart from this, learned counsel submits that there are other prayers also for considering his case for grant of GPF/CPF by taking into account the service rendered by him on work charge basis and are calculated and pay the retiral dues. Petitioner has also prayed for grant of second time bound promotion from due date.

Shri Newaskar submits that there is no illegality in the order Annexure-P/1.

I have heard learned counsel for the parties and perused the record.

This is settled in law that any order which entails civil consequences could be passed only after giving opportunity to the person affected. However, at this stage when petitioner has already retired, I do not propose to enter into the technical and procedural aspect of the matter. In view of the judgment of Supreme Court reported in Sahib Ram Vs. State of Haryana and Others, , no recovery can be made where there was no misrepresentation of fact by the employee in getting the higher emoluments. On the basis of this judgment only, the impugned order is liable to be quashed and set aside. Accordingly, Annexure-P/1 is quashed and set aside. The amount aforesaid cannot be recovered from the petitioner. So far, the other relief claimed by the petitioner is concerned, the petitioner has placed reliance on Annexure-P/7 dated 30/01/1996 to submit that his services rendered on work charge basis are required to be counted as qualifying service. Since, respondents have not taken a final decision on this aspect, I deem it proper to dispose of this petition with the following directions:-

1) Petitioner shall resubmit a representation along with circular dated 30/01/1996 for counting the service aforesaid before respondent No.2.

2) If such representation is preferred, the said authority shall consider the entitlement of the petitioner in accordance with law and pass a reasoned and speaking order within two months. The petitioner may also include the relief of second time bound promotion and GPF/CPF in the said representation. The said authority is directed to deal with that aspect and pass a reasoned and speaking order about entitlement of the petitioner within two months. If the said authority comes to the conclusion that petitioner is entitled for any of the claim, the same be extended in favour of the petitioner within the same time.

Shri Nirankari submits that the amount mentioned in Annexure-P/1 dated 28/11/2006 has already been recovered.

In view of the aforesaid, it is directed that if the said amount is already recovered, the same be paid back to the petitioner within two months, failing which it shall carry interest at the rate of 6% p.a.

With the aforesaid, petition stands disposed of.