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Himachal Pradesh High Court · body

2006 DIGILAW 370 (HP)

Puran Chand v. State of H. P.

2006-11-24

M.R.VERMA, VIJAY PAL SINGH

body2006
JUDGMENT M.R. Verma, Chairman 1. The applicant in this original application has claimed the relief that the Respondents may be directed to pay the DCRG and benefit of 16 years service to the applicant immediately with interest. 2. The case of the applicant in brief is that he retired from the post of Agriculture Extension Officer from Mandi on 30.11.1998 afternoon. He was charge sheeted and inquiry was instituted in which the charges against him were not proved, therefore, he was exonerated vide Annexure-P/1 dated 30.6.1998. However, some retiral benefits including DCRG and increment on completion of 16 years of service were not released to the applicant. In the month of March, 1997 Respondent No. 2 vide communication Annexure P-3 directed the applicant to deposit a sum of Rs. 40,849/- in the Government Treasury within 7 days. The applicant made the whole position clear about the alleged recovery. However, the dues of the applicant were not released. Instead Respondent No. 3 vide communication Annexure P-4 dated 18.11.1998 claimed that the aforesaid amount is recoverable from the applicant or he be directed to settle the matter at Kaza to which the applicant submitted his reply Annexure P-5 dated 10.12.1998. Since the dues of the applicant were still not paid he served notice Annexure P72 dated 5.4.1999 through his Counsel but of no avail. It is claimed that act of the Respondents in not releasing the DCRG and arrears of the applicant is highly illegal, arbitrary and amounts to victimisation resulting in unbearable financial loss and mental agony to the applicant, hence this original application. 3. The Respondents contested the claim of the applicant. It has been averred in the reply that the payment of DCRG of the applicant had been withheld because there is recovery against the applicant. In so far as the benefit of service after completion of 8 years is concerned the same had been given to the applicant, however, the benefit of 16 years service which accrued in favour of the applicant w.e.f. 22.2.1995 could be released on issue of certificate from DDO to the effect that there is no Vigilance/Departmental inquiry/proceedings/recovery/cases pending against the applicant. Since the recovery is pending against the applicant, therefore, such certificate could not be issued till the recovery of Rs. 40,848/- from him. Since the recovery is pending against the applicant, therefore, such certificate could not be issued till the recovery of Rs. 40,848/- from him. It is further averred that the applicant was charge sheeted for misappropriation/embezzlement of sale proceeds of pesticides amounting to Rs. 1,34,748/-, however, the amount in question i.e. Rs. 40,848/- was not included in that charge sheet wherein the applicant was exonerated. The withheld amount is still recoverable from the applicant who was asked to reconcile the P.P. material but failed to do so. It is claimed that DCRG is payable to the applicant only after adjustment of the recoverable amount. Thus the claim in the original application has been denied. 4. The applicant filed rejoinder wherein he reiterated his claim as in the original application and denied the grounds of defence taken by the Respondents. 5. The Respondents filed supplementary affidavit dated 20.6.2005. It has been clarified therein that the applicant was charge sheeted for different recovery case wherein it was found that the sale proceeds were duly deposited and the material was duly handed over, therefore, the applicant was exonerated. However, the applicant was informed vide letter dated 18.7.2001 to reconcile the account of store articles valuing Rs. 37,220/- vide Annexure S/2-3. Out of total amount of Rs. 40,848/- the applicant deposited a sum of Rs. 1,814/- accountable to Rs. 3,628/- leaving recoverable remainder of Rs. 37,220/- with interest at the rate of 12% per annum which works out to Rs. 78,421/-, therefore, a sum of Rs. 56,400/- has been adjusted out of the DCRG of the applicant vide Annexures S/4-5-6 and a sum of Rs. 22,021 is still recoverable from him and it is thus claimed that the applicant is not entitled to the DCRG and benefit of 16 years of service cannot be allowed to him till the recovery of Rs. 22,021/-. 6. We have heard the learned Counsel for the applicant and the learned Deputy Advocate General for the Respondents. 7. It was contended for the applicant that the amount of gratuity in question and the benefit of increment after 16 years of service has been withheld by the Respondents without any rhyme or reason and without any enquiry into the matter, therefore, their impugned acts are unwarranted and illegal. 8. On the other hand the learned Deputy Advocate General contended that a sum of Rs. 8. On the other hand the learned Deputy Advocate General contended that a sum of Rs. 40,848/- is recoverable from the applicant on account of his having failed to account for the Plant Protection material and to deposit its sale proceeds into the Government Treasury. Therefore, in view of the recovery pending against the applicant, the impugned actions have been taken by the Respondents legally. 9. To appreciate the respective submissions of the parties a reference may be made to Annexure-P/3 on the subject of "non accountal of PPM-misappropriation/embezzlement of sale proceeds thereof". As per contents of Annexure-P/3 while conducting audit of the office of APO Kaza it was found that P.P. Material was not accounted for in the Central Store Books nor its sale proceeds amounting to Rs. 40,849/- had been deposited into the Government treasury by the applicant who had received the aforesaid material from the Deputy Director of Agriculture Shimla on bill basis. It is also stated therein that the applicant had misappropriated/embezzled the said sale proceeds for which disciplinary action could be initiated against him. However, it was desired that the applicant be directed to deposit the above amount into the Government treasury within seven days from the date of receipt of Annexure-P/3 by the Deputy Director of Agriculture Mandi District. Thus evidently and undisputably the allegations against the applicant are that he is guilty of misappropriating/embezzling the sale proceeds of PPM amounting to Rs. 40,849/-. 10. It is not in dispute that no departmental proceedings under the relevant rules for the alleged misconduct by the applicant had ever been instituted nor it is case of the Respondents that any judicial proceeding is pending against the applicant on the basis of alleged misappropriation/embezzlement. 11. Though at the time of arguments no law or rule enabling the Respondents to withhold the payment of DCRG or benefit of 16 years service to the applicant has been brought to our notice nor is pleaded in the reply of the Respondents, yet we find that the recoverable Government dues can be recovered from a retired employee either under Rule 73 or Rule 9 of the CCS. (Pension) Rules, 1972 (hereinafter referred to as the Rules). 12. (Pension) Rules, 1972 (hereinafter referred to as the Rules). 12. A perusal of the provisions of Rule 73 of the Rules reveals that the provisions of this rule will apply to assessable amounts recoverable by the Government on account of bona fide or mistaken over payments and other such amounts which are recoverable in she normal course of service but it does not include such recoverable amounts which are alleged to be recoverable because of any grave misconduct or negligence on the part of the employee during the period of service for which separate provisions have been made under Rule 9 of the Rules. 13. The relevant part of the Rule 9 of the Rules reads as follows: 9. Right of President to withhold or withdraw pension.--(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part; or withdrawing a pension in full or in part, whether permanently or for a specified period of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement: Provided that the Union Public Service Commission shall be consulted before any final orders are passed: Provided further that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy five per mensem). (2)(a) X X X X X X X X X X X X X X X X (b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment,-- (i) shall not be instituted save with the sanction of the President. (ii) shall not be in respect of any event which took place more than four years before such institution, and (iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. 14. 14. It is evident on a bare reading of the aforesaid provisions that the rule reserves to the President the powers to withhold or withdraw pension or gratuity or both and to order recovery therefrom of the whole or part of any pecuniary loss caused to the Government if on a departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of service. Thus the condition precedent to withhold the pension or gratuity or a part thereof is that in any departmental inquiry or the judicial proceedings the applicant must have been found guilty of grave misconduct or negligence during the period of his service. 15. In the case in hand it is not the case of the Respondents that the amount recovered and sought to be recovered from the applicant was found recoverable as a result of any departmental inquiry or judicial proceeding. It is also not their case that any departmental inquiry during the employment of the applicant or subsequent to his retirement was ever conducted as provided under Clause (b) of Sub-rule 2 of Rule 9. The case in hand is thus, not covered within the ambit and scope of Rule 9 of the Rules. 16. As already stated no other enabling rule or law has been brought to our notice under which the Respondents could have effected the recovery of the value of the Articles allegedly misappropriated/embezzled by the applicant. 17. In view of above without any finding after a departmental inquiry or judicial proceeding holding the applicant guilty of grave misconduct or negligence the claim of the Respondents that the amount in question has been rightly recovered from his DCRG and by withholding grant of benefit of 16 years service to him is not legally sustainable. 18. In view of above the Respondents are directed to release the withheld amount of DCRG of the applicant and also settle and release the benefit of 16 years service to the applicant on his furnishing sufficient security to refund the cost of PP Material amounting to Rs. 40,848/- with interest at the rate of 12% per annum or any other amount if any which may be found recoverable from him on account of the alleged misappropriation/embezzlement after enquiry as contemplated under Rule 9 supra. 40,848/- with interest at the rate of 12% per annum or any other amount if any which may be found recoverable from him on account of the alleged misappropriation/embezzlement after enquiry as contemplated under Rule 9 supra. The applicant -shall furnish the requisite security to the satisfaction of the Registrar of this Tribunal within four weeks of the passing of this order and in case the security is so furnished the Respondents shall release the withheld amount of DCRG to him within four weeks of his furnishing the security and the amount payable to the applicant on account of benefit of 16 years service shall also be released within the said period. It may be observed that nothing contained in this order shall be construed to have debarred the Respondents from taking action in the matter of alleged misappropriation/embezzlement against the applicant in accordance with relevant rules and the law. This original application is disposed of in terms of above orders with no order as to costs.