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Madhya Pradesh High Court · body

2012 DIGILAW 1208 (MP)

S. S. Nafde v. State of M. P.

2012-11-22

K.K.TRIVEDI

body2012
JUDGMENT : By this petition under Article 226 of the Constitution of India, the petitioner has called in question the action of respondents of recovering certain amount from the retiral dues of the petitioner, as is indicated in the Pension Payment Order dated 28-2-2001. It is contended that the petitioner was serving on the post of Deputy Chief Medical Officer at Kurai, District Seoni, when he gave a notice for his voluntary retirement. The said notice was not acted upon on first occasion, therefore, a repeated request was made on 1-9-1999, categorically indicating in the notice that the petitioner would retire from service on 30-11-1999. However, the notice of voluntary retirement given by the petitioner was not accepted for a long period. Certain correspondence was done of which a reply was submitted by the petitioner, yet the orders were not issued accepting the voluntary retirement of petitioner from the proposed date. Ultimately, final order was passed on such a request of the petitioner on 14-8-2000, accepting the notice of voluntary retirement with retrospective effect, i.e. the date from which the petitioner was willing to voluntary retire. Even after the date of retirement indicated by the petitioner in his notice, he was made to work and ultimately was relieved on 31-8-2000, .The petitioner was sent for training in between this period and was paid the salary. However, while passing the order, nothing was said in this respect, erroneously, the petitioner was voluntary retired with retrospective effect and when the pension case of the petitioner was prepared, it was said that salary was not to be paid to the petitioner after 30-11-1999 and calculating the said amount paid to the petitioner upto 31-8-2000, the same has been recovered from the retiral dues of the petitioner. It is contended that such an action of the respondent is per se illegal as it was their folly not to retire the petitioner from the date of his choice by accepting the notice of voluntary retirement timely and since the petitioner was made to work, even after the period of notice of voluntary retirement, he was entitled to the payment of salary for the said period. The recovery so made from the petitioner is, thus, illegal and the said amount is required to be refunded to the petitioner with interest. 2. The recovery so made from the petitioner is, thus, illegal and the said amount is required to be refunded to the petitioner with interest. 2. Refuting the allegations made by the petitioner in his petition, the respondents have filed a detailed return-.' They have contended that in fact in terms of the provisions of Rule 42 of M. P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as the Rules for short), the petitioner was not to work even for a single day after 30-11-1999, even if there was no communication made by the competent authority with respect to the acceptance of the notice of voluntary retirement. It is contended that the voluntary retirement if opted for from a future date, for which a notice is given, if the same is not withdrawn by the employee, it become operative from die date indicated in the notice and the employee concerned stood voluntary retired from the date of his choice indicated in the notice. He is not entitled to hold the post for any date hence after and neither he is entitled to payment of any salary nor any other service benefits. In view of this, it is contended that the continuance of services of the petitioner after 30-11-1999 was not justified. He was not entitled to work on the post nor any salary was to be paid to him. The fact was not communicated to the higher authorities of the department and, thus, the petitioner was not entitled to any relief claimed in the petition. Since the amount of salary paid with effect from 1-12-1999 upto 30-8-2000 was illegally received by the petitioner, in terms of the provisions of Rule 65 of the Rules, the said amount was rightly recovered from the retiral dues of the petitioner. Thus, no wrong is committed by the respondents and, as such, the petition is liable to be dismissed. 3. Heard learned counsel for the parties at length and perused the record. 4. First of all, it has to be examined whether any acceptance of the notice of voluntary retirement is required under Rule 42 of the Rules or not. Rule 42 (1)(a) of the Rules is materially important for consideration of the present controversy. However, for the better appreciation, the entire Rule 42 of the Rules, is reproduced hereunder :- "42. Retirement on completion of 15/20 years qualifying service : (1)(a). Rule 42 (1)(a) of the Rules is materially important for consideration of the present controversy. However, for the better appreciation, the entire Rule 42 of the Rules, is reproduced hereunder :- "42. Retirement on completion of 15/20 years qualifying service : (1)(a). Government servant may retire at any time after completing 15 years qualifying service, by giving a notice in form 28 to the appointing authority at least (one month) before the date on which he wishes to retire or on payment by him of pay and allowances for the period of (one month) or for the period by which the notice actually given by him falls short of (one month): Provided that this sub-rule shall not apply to the Government servants mentioned in brackets against each of the following Departments, until they have not completed 20 years qualifying service :- (a) Public Health and Family Welfare Department (Medical, Paramedical and Technical Staff); (b) Medical Education Department (Teaching Staff, Paramedical and Technical staff); (c) Technical Education and Man Power Planning Department (Teaching staff); (d) Higher Education Department (Teaching staff); (e) School Education Department (Teaching staff); (f) Tribal Welfare Department (Teaching staff); (g) Home (Police) Department (Non-ministerial staff); Provided further that such Government servant shall not be allowed to retire from service without prior permission in writing of the appointing authority under the following circumstances :- (i) Where the Government servant is under suspension; (ii) Where it is under consideration of the appointing authority to institute disciplinary action against the Government servant; Provided also that if the appointing authority has not taken the decision under clause (ii) of the second proviso, within six months from the date of notice given by the Government servant with regard to such disciplinary action it shall be deemed that the appointing authority has allowed to such Government servant to retire from service on the date after expiry of the period of six months. (b) The appointing authority may in the public interest require a Government servant to retire from service at any time after he has completed 20 years qualifying service or he attains the age of 50 years whichever is earlier with the approval of the State Government by giving him three months notice in Form 29 : Provided that such Government servant may be retired forthwith and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate at which he was drawing immediately before his retirement or, for the period by which such notice falls short of three months, as the case may be. NOTE-1. - Before a Government servant service notice of retirement under clause (a) above, he should satisfy himself by means of a reference to the appointing authority that he has in fact, completed 15 or 20 years qualifying service, as the case may be, for pension. Similarly, the appointing authority, while giving notice of retirement to a Government servant under clause (b), above, should also satisfy itself, that the Government servant has, in fact completed 20 years qualifying service or he attains the age of 50 years. NOTE-2. - The period of notice of [one month or three months] or the notice period which is short of [one month or three months] as the case may be, shall be reckoned from the date on which it is signed and put in communication under registered post. Where the notice is served personally, the period shall be reckoned from the date of receipt thereof. NOTE-3. The Government servant, on submission of an application shall be granted such leave during the period of notice to which he is entitled according to rules : Provided that no leave shall be granted beyond the expiry of the period of notice. NOTE-4. - The payment of pension for the period for which pay and allowances have been paid to a Government servant in lieu of notice, shall be regulated by the provision of sub-rule (2) of Rule 33 of these rules. NOTE-4. - The payment of pension for the period for which pay and allowances have been paid to a Government servant in lieu of notice, shall be regulated by the provision of sub-rule (2) of Rule 33 of these rules. (2) A Government servant who has elected to retire under clause (a) of sub-rule (1) and has given the necessary intimation to that effect to the appointing authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority on consideration of the circumstances of the case to withdraw the notice given by him: Provided that the request for withdrawal shall be prior to the intended date of his retirement. (3) Where the notice of retirement has been served by appointing authority on the Government servant, it may be withdrawn, if so desired for adequate reasons, provided that the Government servant concerned is agreeable." 5. Once a notice in prescribed proforma is given, there is a specific bar under sub-rule (2) of Rule 42 of the Rules that the same will not be withdrawn by the Government servant without the approval of the competent authority. This is indicative of the fact that the acceptance of a notice of voluntary retirement is not required or contemplated for full operation of the said notice of voluntary retirement. If no orders are communicated in this respect or if the notice of voluntary retirement is not withdrawn before the date indicated in the said notice of voluntary retirement, it will become automatically operative from the date indicated in the notice of voluntary retirement and the Government servant would retire voluntarily from the date of his choice indicated in the aforesaid notice. This particular aspect has been considered by this Court in the case of Indra Prakash Bhatnagar vs. State of M. P. and another, 1985 MPLJ 229 , wherein this Court has categorically held that once the notice of voluntary retirement is given, indicating a choiced date, the same will become operative from the date mentioned in the notice. For better appreciation, the findings given by this Court in paragraphs 27, 28 and 29 of the report are reproduced hereunder :- "27. it is, therefore, such a statutory right, indefeasible and absolute in nature that is enshrined in clause (a) of sub-rule (i) of Rule 42 of the Civil Services (Pension) Rules, 1976. 28. For better appreciation, the findings given by this Court in paragraphs 27, 28 and 29 of the report are reproduced hereunder :- "27. it is, therefore, such a statutory right, indefeasible and absolute in nature that is enshrined in clause (a) of sub-rule (i) of Rule 42 of the Civil Services (Pension) Rules, 1976. 28. The next factor is the choice of the Government servant of the date of his retirement. Now the first part of clause (a) of sub-rule (i) of Rule 42 says that a Government may retire at any time which falls after completing the period of 20 years qualifying service. The second part of clause (a) of sub-rule (i) of Rule 42 gives the Government servant a wide choice. He may choose to retire on the date of his notice. He may also choose to retire on the date of expiry of a period of three months, the beginning of which period is reckonable in accordance with note 2 below sub-rule (i) of Rule 42, or any date within the aforementioned period of 3 months or any date following after a period of 3 months from the date of the giving of the notice under clause (a) but in such a case -understandably-before the date of his superannuation. 29. Now where a Government servant chooses to retire on the date of sending of the notice under clause (a) or on a date which falls after the date of sending or on a date which falls before expiry of a period of three months, he has to make payment of pay and allowances respectively for a period of three months or for the period by which the notice period falls short of a period of three months in both cases reckoning of the beginning of the period of three months will be done in accordance with note 2, which is the second of the four Notes set out after the end of clause (b) of sub-rule (i) of Rule 42. However, even in these two cases it is the Government servant's choice of the date of his retirement which determines the date of his retirement under clause (a)." 6. Thus, the allegation made by the petitioner that the notice of voluntary retirement was required to be accepted and then only it would become operative, cannot be accepted. However, even in these two cases it is the Government servant's choice of the date of his retirement which determines the date of his retirement under clause (a)." 6. Thus, the allegation made by the petitioner that the notice of voluntary retirement was required to be accepted and then only it would become operative, cannot be accepted. However, if the petitioner was asked to continue on the post, even after the date of voluntary retirement whether he would be entitled to payment of salary for the period he worked or not has to be examined. The question is whether the petitioner was ever willing to voluntary retire or not ? From the record it is clear that the petitioner submitted his notice of voluntary retirement earlier indicating a date on 1-9-1999. However, such a notice was not acted upon. Thereafter, the petitioner submitted the application again on 1-9-1999 indicating that he was willing to voluntary retire with effect from 30-11-1999 i.e. after the period of three months. A query was made from the petitioner on 4-9-1999 and it was specifically asked whether the petitioner was willing to continue in the employment or not, or whether he was willing to accept the voluntary retirement. In response to such a letter, the petitioner again submitted an application on 10-9-1999 saying that he was willing to voluntary retire with effect from 30-11-1999. This fact is clear from the reply of the petitioner that he was not willing to continue in the employment after 30-11-1999. The matter was referred to the higher authorities for information. Thus, after making of such a reference, there was no question for the petitioner to continue in the employment after 30-11-1999. He in fact by operation of law stood voluntary retired with effect from 30-11-1999. However, it appears that since the petitioner was not relieved, he remained continued in the employment and because of some confusion, the petitioner was sent for certain training and was paid the salary till an order was issued on 14-8-2000, ultimately accepting the voluntary retirement of the petitioner with retrospective effect. 7. As has been pointed out hereinabove, no such acceptance of the voluntary retirement of the petitioner by the employer was necessary in terms of the provisions of the Rules. 7. As has been pointed out hereinabove, no such acceptance of the voluntary retirement of the petitioner by the employer was necessary in terms of the provisions of the Rules. The petitioner should have handed over the charge of his post on 30-11-1999 itself and should have relinquished the post, but he continued in the garb of awaiting the acceptance of such voluntary retirement. Ultimately, the petitioner was relieved on 31-8-2000 and this is how the salary was paid to him for the aforesaid period. In fact, the petitioner was not to be paid the salary after 30-11-1999, but was entitled to payment of pension. Therefore, if something more than the entitlement of the petitioner was paid to him, the said amount was required to be recovered from the petitioner. It has to be examined whether even by mistake if excess payment was made to the petitioner, the amount could be recovered from him or not. The Apex Court in the case of Chandi Prasad Uniyal and others vs. State of Uttarakhand and others, (2012) 8 SCC 417 has categorically dealt with such a situation and has held that in case any amount is illegally paid by mistake, the same can be recovered. In paragraphs 13, 14, 15 and 16, the Apex Court has dealt with such a situation, which read thus :- "13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy. 14. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B. J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered. 16. Appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order the excess payment made be recovered from the appellant's salary in twelve equal monthly instalments starting from October, 2012." 8. This particular aspect whether an amount paid in excess by mistake could be recovered or not has been dealt with by the Division Bench of this Court also in the case of Union of India and others vs. Devraj Bais (DB), 2012 ILR 311 (M.P.), wherein the Division Bench of this Court has considered these aspect and has categorically held that no right accrues on the basis of a mistaken act and the same can be undone by taking recourse to the due process of law. Here in the case in hand, the petitioner was aware of the fact that he has given a choiced date of his voluntary retirement in his notice of voluntary retirement. It was the necessary requirement of law that the petitioner should have relinquished the post on the date of his choice of voluntary retirement but in the garb that the notice of voluntary retirement was not accepted he continued on the post and under certain confusion, the authorities of the department have allowed the petitioner to continue on the post even after the choice date of voluntary retirement which according to law was not permissible. Therefore, the petitioner was not to be paid any salary whatsoever for the period after the choiced date of voluntary retirement. If the recovery of such an amount has been directed, nothing wrong is committed by the respondents. 9. In view of the aforesaid, there is no force in the writ petition. The same deserves to be and is hereby dismissed. However, there shall be no order as to costs. Petition dismissed.