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2012 DIGILAW 31 (CHH)

KRISHNA MEHAR v. STATE OF C. G.

2012-01-23

SATISH K.AGNIHOTRI

body2012
ORDER 1. By this petition, the petitioner seeks a direction to the respondent authorities to pay an amount of Rs. 1,30,324/- deducted from the gratuity amount and Rs.69,750/- deducted from the leave encashment amount along with interest at the rate of 9% per annum till date of actual payment. 2. The facts, in brief, are that the husband of the petitioner was initially appointed as Skilled Assistant at Government Higher Secondary Technical School, Raigarh on 19-8-1964. Thereafter, he was posted at various places and when he was working as In-charge Librarian in Government Polytechnic College, Ambikapur, died on 4-4-2007 due to brain tumor. In fact, the deceased employee was to retire in the month of January, 2008. The husband of the employee was entitled to gratuity amount of Rs.l ,91,000/- and an amount of Rs.69,750/- as leave encashment. However, the respondent authorities deducted an amount of Rs.l,30,324/- from the gratuity amount, as is evident from the challan (Annexure - P/2) and an amount of Rs.69,750/- from the leave encashment amount, as is evident from Annexure - P/3. The aforesaid deductions have been made on the ground that while the husband of the petitioner was working as In-charge Librarian, some books were missing from the library of the Government Polytechnic College, Ambikapur. Thus, this petition. 3. Shri Patankar, learned counsel appearing for the petitioner, would submit that the petitioner is entitled to all the retrial dues being a legal representative and widow of the deceased employee, but the respondent authorities have illegally deducted the amount, though there was no misrepresentation or fraud on the part of the petitioner or her husband. Enquiry in respect of missing of books was not conducted during the life time of the deceased employee. The petitioner is entitled to all the retrial dues of her husband, as no sanction from the Governor was taken before conducting the enquiry. 4. Shri Dwivedi, learned Dy. Govt. Advocate appearing for the State, would submit that the husband of the petitioner was In-charge of Library since 1985. Thereafter, by order dated 25-5-2005 one Mahanand Tirkey had been posted against the vacant post of Librarian. After joining Mahanand Tirkey found shortage of books and other articles of Library amounting to Rs.2,08,352/- and the same was informed to the college. 5. On the basis of which a committee was constituted on 23-7-2007 (Annexure - R/2). Thereafter, by order dated 25-5-2005 one Mahanand Tirkey had been posted against the vacant post of Librarian. After joining Mahanand Tirkey found shortage of books and other articles of Library amounting to Rs.2,08,352/- and the same was informed to the college. 5. On the basis of which a committee was constituted on 23-7-2007 (Annexure - R/2). The committee submitted its report vide Annexure - R/3 and found shortage of Rs.3,12,701.30. Thereafter, the Principal asked the petitioner and her son to visit the library and verify the shortage of books and other articles as per the report submitted by the committee. Accordingly, the petitioner and her son appeared and found shortage to the tune of Rs.2,07,122/-. Subsequently, the Principal directed the petitioner to deposit the said amount so asto settle the retiral dues of the deceased employee, but no action was taken by the petitioner. Thus, the authorities have no other alternative than to deduct the amount from the death-cum-retiral dues of the deceased employee. The impugned action of the respondents is just & proper and does not warrant interference of this Court. 6. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 7. Indisputably, Mahanand Tirkey was appointed as Librarian of Polytechnic, Ambikapur, by order dated 25-5-2005 in place of late husband of the petitioner namely; late Shri P.N. Mehar. Late Shri P.N. Mehar died on 4-4-2007 due to brain tumor. Mahanand Tirkey could not examine the books and other articles of library before the death of late Shri P.N. Mehar. It is not clear asto when shortage of books was found by Mahanand Tirkey and when he reported to the Principal about the same. 8. After the death of late Shri Mehar, the committee was constituted by the Principal on 23-7-2007. The committee, without examining or issuing any notice to the petitioner (wife of the deceased employee) came to the conclusion that her husband P.N. Mehar had caused shortage of books valuing Rs.2,60,420/-. Thus, it is clear that no opportunity of hearing was afforded to the petitioner's husband when he was alive. Every step was taken after his death, including verification leading to shortage of books and other articles was done after death of the employee. 9. Thus, it is clear that no opportunity of hearing was afforded to the petitioner's husband when he was alive. Every step was taken after his death, including verification leading to shortage of books and other articles was done after death of the employee. 9. The law is well settled that no order adverse to the person, can I be passed without affording proper opportunity of hearing to the concerned person. 10. Had the enquiry been concluded in presence of late Shri Mehar then only liability was to be recovered, perhaps, it was possible but without holding proper enquiry, no liability or responsibility can be fastened on a dead Librarian and the same may not be deducted from the retiral benefits including gratuity to which widow and other legal representatives of the deceased employee are entitled. 11. Calling upon the petitioner and her son to verify the books and other articles of library is of no relevance, as the petitioner and her son were not aware of the presence of the books, name of books and missing of books, as pleaded by the petitioner. 12. Rule 9 of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short ''the Rules, 1976") confers right on the Governor to withhold or withdraw pension, subject to certain conditions. Firstly proper departmental proceeding should be initiated before his retirement. If the departmental proceeding was not initiated, the same shall not be instituted in respect of any event, which took place more than four years before such institution. In this case, the petitioner's husband has died in harness and no action could be taken when he was alive. Thus, Rule 9 of the Rules, 1976 conferring power on the Governor to withhold or withdraw pension would not be applicable in the case on hand. 13. Rule 65 of the Rules, 1976 provides for recovery and adjustment of Government dues. Sub-rule (2) (b) of Rule 65 of the Rules, 1976 provides that out of the gratuity payable to him, his nominee or legal heir, an amount equal to that recoverable on account of ascertainable Government dues shall be deducted. The same may also not be applicable in the instant case, as if the amount has been ascertained after proper enquiry and after affording opportunity of hearing to the concerned Government employee, the same is recoverable from the gratuity payable to him, his nominee or legal heir. 14. The same may also not be applicable in the instant case, as if the amount has been ascertained after proper enquiry and after affording opportunity of hearing to the concerned Government employee, the same is recoverable from the gratuity payable to him, his nominee or legal heir. 14. In the case on hand, the committee was even constituted for verification of books after death of late Shri Mehar and, as such, the petitioner and her son were not in a position to submit the response properly. Thus, it cannot be held that the amount was ascertained after proper enquiry and following the basic principles of natural justice. 15. For the reasons mentioned hereinabove, the respondent authorities are directed to refund an amount of Rs.l,30,324/- & Rs.69,750/- to the petitioner within a period of four weeks from the date of receipt of a copy of this order. 16. As an upshot, the writ petition is allowed to the extent indicated above. No order asto costs. Petition Allowed.