Research › Search › Judgment

Himachal Pradesh High Court · body

2006 DIGILAW 104 (HP)

KHIALI RAM v. STATE OF H. P.

2006-04-12

M.R.VERMA

body2006
JUDGEMENT M.R. Verma, J (Retd.), Chairman.: The applicant herein claims the following reliefs:- i) That the respondents be directed to pay retirement benefits; viz, DCRG, Leave Encashment etc, to the applicant, ii) That the orders/ notice dated 31.3.1995 (P-1), 22-11-1995 (P-3), 30- 12-1995 (P-6), 20-12-1996 (P-7) and 16.3.1996 (P-8) may be quashed; iii) That as the applicant has been forced to come to this Tribunal due to the illegal action of the respondents in not releasing DCRG and Leave Encashment to the applicant within time, therefore, the respondents be directed to pay 18% interest on the amount of DCRG and Leave Encashment with effect from 31.12.1995. 2. The case, of the applicant as made out in the original application is that while posited at Pooh in Cholang Beat in Mating Range (Changchino Area) District Kinnaur he was served with an office order Annexure A-1 dated 31.3.1995 to deposit a sum of Rs.43423/- without holding an inquiry and affording opportunity of being heard. The applicant instead of depositing the amount opposed the recoveries vide Annexure P-2. Annexure P-2 was rejected and various communications were issued to the applicant to deposit the amount in question. The applicant retired on] 31.12.1995 but he was not paid his DCRG and Leave Encashment despite representations. On the contrary vide Annexure P-8 he was called upon to deposit the amount in question failing which the recovery was to be effected from his DCRG and leave encashment. Various representations made by the applicant did not yield any result and his DCRG and leave encashment continues to be withheld, hence this original application. 3. The respondents filed reply wherein it is admitted that the applicant had retired on 31.12.1995 and he was called upon to deposit the aforesaid amount which he has not paid and his DCRG and leave encashment has not been released/paid to him. The defence of the respondents as averred in reply is that the Chang Chimo are was inspected by the chairman, Desert Development, Project-cum-Deputy, Commissioner, Kinnaur and Assistant Project Officer, Desert Development Project, Pooh jointly on 17.9.1992 in the presence of the concerned officials and it was found that no plant was surviving out of 37500 plants which were shown to have been planted in the pits and patches as per the record. It was found that this happened because of the negligency of the concerned Forest Ranger, Block Officer and Incharge beat. It was found that this happened because of the negligency of the concerned Forest Ranger, Block Officer and Incharge beat. In the meeting of the governing body of the Desert Development Project Pooh held on 26.7.1993 the Chairman of the Project i.e. the Deputy Commissioner, Kinnaur decide vide Annexure R-1 that the entire expenditure of Rs.1,30,270/- should be recovered from the erring officers/officials. During the course of the audit of the office of D.F.O. Pooh, the Audit party also found that the aforesaid loss had been caused. Against this background the impugned order was issued directing the applicant to deposit the amount which was followed by various subsequent communications asking the applicant to deposit the amount of loss caused to the state exchequer because of the negligence of the various officials including the applicant. It is, however, not the case of the applicant that any show cause notice or any opportunity of being heard was ever afforded to the applicant. 4. I have heard the learned counsel for the applicant and the learned Additional Advocate General for the respondents. 5. It was contended by the learned counsel for the applicant that the recovery in question has been ordered without adopting the requisite procedure and thus, the impugned order directing the applicant to deposit the amount followed by various subsequent communication is illegal and cannot be sustained and the applicant is entitled for the relief claimed. 6. On the other hand it was contended by the learned Additional Advocate General that negligency on the part of the applicant had resulted in huge loss to the tune of Rs.1,30,270/- to the state exchequer, therefore, the recovery could be effected from the retirement gratuity in view of the provisions contained in Rule 71 of the CCS (Pension) Rules, therefore, the action of the respondent in withholding the gratuity/leave encashment of the applicant cannot be said to be illegal but is in conformity with the said Rule. 7. Rule 11 of the CCS (CCA) Rules describes the penalties which can be imposed on a delinquent and one of the minor penalties provided there under is recovery from the pay of the whole or part in case pecuniary loss is caused by the delinquent to the government by negligence or breach of orders. 7. Rule 11 of the CCS (CCA) Rules describes the penalties which can be imposed on a delinquent and one of the minor penalties provided there under is recovery from the pay of the whole or part in case pecuniary loss is caused by the delinquent to the government by negligence or breach of orders. It is case of the respondents that the loss was caused to the government by negligence of the applicant and other officials, hence they are effecting the recovery and not releasing the gratuity/leave encashment. Thus, the action of the respondents is covered within the meaning of imposing the penalty of recovery from the applicant for the loss caused to the government that no show cause notice whatsoever, was ever issued to and served upon the applicant nor hew was given any opportunity of being heard before passing of the order directing him to deposit his share of the amount of loss vide Annexure P-1. The action of the respondents, thus, is in contravention of the provisions of Rule 16 of CCS (CCA) Rules and as a consequence is unsustainable. 8. In Amar Chand Vs. Union of India and another, (1985 All India Reports (Himachal Series) 601 wherein the petitioner amongst others was directed to voluntarily make good the loss in the sum of Rs.1000/- alleged to have been sustained by the government on account of the damage caused to the government vehicle which met with an accident the question arose whether it is competent to recover any amount from the salary of the government servant on the ground of alleged pecuniary loss except in exercise of the powers conferred in Rule 11 of the CCS (CCA) Rules or by institutions of Civil Suit. It was held that order calling upon the government servant without affording any opportunity to reimburse the loss caused to the government is devoid of power, authority and jurisdiction and is also contrary to the mandate of Article 300(A). 9. In D.V. Kapoor Vs. Union of India and others, (1990 (4) Supreme Court Cases 314) the Apex Court in a case whereon inquiry the appellant therein was found guilty of dereliction of duties held as under: - "The impugned order discloses that the President withheld on permanent basis the payment of gratuity in addition to pension. The right to gratuity is also a statutory right. The right to gratuity is also a statutory right. The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. No provision of law has been brought to out notice under which the President is empowered to withhold gratuity as well, after the retirement as a measure of punishment. Therefore, the order to withhold the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction." 10. Rule 71 of CCS (Pension) Rules relied upon by the learned Additional Advocate General in support of the defence of the respondents reads as under: "71. Recovery and adjustment of Government dues. (1) It shall be the duty of the Head of Office to ascertain and assess Government dues payable by a Government, servant due for retirement. (2) The Government dues as ascertained and assessed by the Head of Office which remains outstanding till the date of retirement of the Government servant, shall be adjusted against the amount of the (retirement gratuity) becoming payable. (3) The expression Government dues includes- (a) dues pertaining to Government accommodation including arrears of licence fee, if any: (b) dues other than those pertaining to Government accommodation, namely, balance of house building or conveyance or any other advance, overpayment of pay and allowances or leave salary and arrears of income tax deductible at source under the incomes Tax Act, 1961 (43 Of 1961)." 11. On a bare reading of the aforesaid provisions it is clear that this rule applies to such recovery which were to be effected from the employee as per the statue or the rule. Rule 71 Supra authorises adjustment of amount remaining outstanding for recovery against a government employee which the government employee fully know and is bound to pay and are dues payable on account of government accommodation including arrears of licence fee, balance of house building or conveyance or other advances, other payment of pay and allowances or leave salary and arrears of income tax deductible at source under the Income Tax Act. Evidently, these amounts are such which are recoverable from the employee either under the statue or under express/implied contracts. The amounts allegedly recoverable on account of the negligence without holding an inquiry cannot be treated as government dues within the meaning of Rule 71 Supra. 12. Evidently, these amounts are such which are recoverable from the employee either under the statue or under express/implied contracts. The amounts allegedly recoverable on account of the negligence without holding an inquiry cannot be treated as government dues within the meaning of Rule 71 Supra. 12. In view of the above discussion and conclusion the impugned orders/notices Annexures P-1, P-3, P6, P-7 and P-8 calling upon the applicant to deposit the amount in question on account of loss caused to the government on account of the alleged negligence of the applicant without due enquiry and affording opportunity of being heard to him are unsustainable and withholding of the DCRG/leave encashment of the applicant as a consequence is illegal and the respondents are liable to release the DCRG and leave encashment to the applicant without further delay. 13. As a result the orders/notices Annexure P-1, P-3, P-6, P-7 and P-8 and the action of the respondents in withholding the payment of DCRG and leave encashment of the applicant are quashed and set aside. The respondents are directed to pay the DCRG and leave encashment to the applicant within 8 weeks of the passing of this order and in the event of respondents failing to do to the withheld amount of DCRG and leave encashment shall be payable with interest at the rate of 12% per annum from 1.4.1996 till the date of payment. It may, however, be clarified that the allegations against the applicant are that of causing loss to the public exchequer by negligence, if so, nothing contained in this order shall be deemed to have debarred the respondents from recovering the loss from the applicant in accordance with law.