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Rajasthan High Court · body

2006 DIGILAW 976 (RAJ)

Shyam Manohar Sharma v. Union of India

2006-03-27

N.P.GUPTA

body2006
Judgment N.P. Gupta, J.-By this petition, the petitioner substantially claims the following relief :-“16. It is therefore, most respectfully prayed that:- (a) Byan appropriate writ, order or direction the order for recoveries being effected from the petitioners pension (Annexure-12 B) may be quashed. The amount recovered and held back be remitted back to the petitioner with 24% interest thereon. (b) Byan appropriate writ, order or direction the respondents be directed to release the amount standing to the credit of petitioner as per pay-slip for the month of December 1989. 2. The relevant averments of the petitioner are that the petitioner was retired from the substantive rank of Sq. Leader on 31.01.1986 and was re-employed on 03.02.1986 initially for a period of two years. However, it continued upto 06.01.1990. The terms of salary etc. which were to be paid to such re-employed persons are alleged to be governed by the provisions laid down in Air Force Instruction 124/1970 (Annexure-2). Thereafter, as a result of Fourth Pay Commission, instead of Annexure-2, new instructions were issued vide letter dated 31.01.1991 whereby certain changes were made, which are alleged to be adversely affecting the emoluments. According to the petitioner, no options were asked from him about revised pay scale, consequent upon the Fourth Pay Commission. However, the formula, made applicable with retrospective effect, gave rise to huge recoveries, even from the officers who had long back retired before that date. It is then alleged that after re-employment, the petitioners pay was fixed and re-fixed and finally, pay slip for December, 1989 (Annexure-3) was issued, according to which, calculations were made, about the amounts payable to the petitioner, and the amounts paid to him. According to this slip, a sum of Rs. 1,38,353/-was stated to be due to the petitioner, as against which, a sum of Rs. 97,809/-was shown to have been drawn by him, and out of the amount due to the petitioner, 10% being Rs. 13,835/-was withheld and thus, out of the remaining amount of Rs. 1,24,518/-after deducting the amount drawn, and the amount withheld, the difference amount payable was found to be Rs. 26,709/-. Case of the petitioner is, that thereafter, vide letter dated 17.07.1990 (Annexure-4), he was informed, that his Individual Running Ledger Account (IRLA) shows a debit balance of Rs. 412/-and in the final audit, the amount was demanded. 1,24,518/-after deducting the amount drawn, and the amount withheld, the difference amount payable was found to be Rs. 26,709/-. Case of the petitioner is, that thereafter, vide letter dated 17.07.1990 (Annexure-4), he was informed, that his Individual Running Ledger Account (IRLA) shows a debit balance of Rs. 412/-and in the final audit, the amount was demanded. According to the petitioner, the details furnished with this letter (Annexure-4) did not show, as to how the amount of Rs. 13,835/-has been adjusted. Against this, the petitioner represented and asked for being remitted the withheld amount. Thereupon, the aforesaid amount of Rs. 412/-was not only recovered, but communication dated 31.07.1991 was addressed, showing further debit balance of Rs. 21,871/-including the sum of Rs. 412/-, without giving any opportunity of hearing; and the petitioner was required to forward the demand draft of this amount. This letter has been produced as Annexure-7. Petitioner again represented, but to no good. However, action was initiated for recovery of the amount. In these circumstances, the petitioner has challenged action of recovery of 21,871/-, and has also prayed for a direction to the respondents, to refund the 10% amount, withheld as shown in Annexure-3. 3. In reply, according to the learned Counsel for respondents, the stand taken is, that this amount, shown in Annexure-3, was withheld as 10% for final adjustments, if any amount is found due against the employee. It is, however admitted position, that during the pendency of the writ petition, respondents themselves considered the matter of retired and re-employed officers, and the recovery of Rs. 21,459/-was waived off , by the Government of India. 4. In these circumstances, the only question remains about the petitioners entitlement to get the relief (b) of the writ petition. 5. Learned Counsel for the petitioner has made available for perusal of the Court, communication dated 02.08.2005 of the respondents, which shows that recovery of Rs. 21,459/-has been waived off . Thus, the prayer (a) stands granted. 6. With respect to prayer (b), from Annexure-3, it does transpire, that it is the statement of amounts, to which the petitioner was entitled, according to the respondents, and the amounts paid to him, and after deducting that, showing the amount, to which the petitioner remained entitled. In this statement, a sum of Rs. 13,835/-, being 10% of the emoluments, has been withheld. In this statement, a sum of Rs. 13,835/-, being 10% of the emoluments, has been withheld. This withholding of 10% amount is a fact, which is not in dispute. A look at Annexure-18, filed with the writ petition, alongwith the rejoinder, shows that on fixation, an amount of Rs. 26,709/-was paid to the petitioner, as pay fixation arrears during December, 1989, and an amount of Rs. 13,835/-was kept as reserve, to cater, if any recovery arose at a later stage. It is then mentioned therein, that subsequently on receipt of letter dated 31.07.1991, the pay of all re-employed persons was fixed and simultaneously, due and drawn statement was prepared. In the petitioners case, the statement was prepared for the period from 03.02.1986 to 06.01.1990, and while preparing the due and drawn statement, debit balance of Rs. 21,459/-was noticed deducting Rs. 26,709/-as drawn. As such it was conveyed that Rs. 13,835/- was kept reserve, which was admissible to him. In this letter dated 02.08.2005, shown by the learned Counsel today, it is however mentioned, that recovery of Rs. 9,424/-, which had arisen due to double credit of rank pay, has not been waived. In the present case, it is not shown that this amount of Rs. 9,424/-was double credited in the case of the petitioner. 7. Thus, sequence of circumstances, shows, rather a combined reading of Annexure-3 and 18 makes it clear, that Rs. 21,459/-was found to be over due, taking a sum of Rs. 26,709/-as drawn by the petitioner, and from Annexure-3 it is clear, that the petitioner was held entitled to Rs. 26,709/-after withholding 10% amount being Rs. 13,835/-. Thus, when the recovery of Rs. 21,459/-has been waived off , it necessarily means, that the petitioner is entitled to be refunded the 10% amount, withheld from him as shown in Annexure-3. The respondents have not produced the statement of due and drawn amounts, as is alleged to have been prepared, as per the recitals of Annexure-18, while the petitioner has produced the old statement (Annexure-3). 8. In these circumstances, in absence of any factual data being made available by the respondents, I am left with no alternative, but to conclude, that consequent upon a combined reading of Annexure-3 and 18, the petitioner does remain entitled to be refunded the 10% amount withheld as shown in Annexure-3. 9. 8. In these circumstances, in absence of any factual data being made available by the respondents, I am left with no alternative, but to conclude, that consequent upon a combined reading of Annexure-3 and 18, the petitioner does remain entitled to be refunded the 10% amount withheld as shown in Annexure-3. 9. Accordingly, the writ petition is allowed in part, and the respondents are directed to refund to the petitioner, the 10% amount withheld from him, as shown in Annexure-3. This amount be paid to him within a period of two months, with interest at the rate of 6% per annum, from the date of withholding the same, till the date of actual payment thereof . 10. It is further directed that if the amount is not paid within the aforesaid time, the amount will carry interest at the rate of 12% per annum, and it is also directed, that in that event, this order will be executable by the concerned principal civil Court of original jurisdiction, as a decree of the civil Court, in accordance with provisions of Order XXI, CPC. The parties shall bear their own costs.