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Madhya Pradesh High Court · body

2013 DIGILAW 487 (MP)

Nand Kishore Shrivastava v. State of M. P.

2013-04-09

ALOK ARADHE

body2013
JUDGMENT : In this petition, the petitioner has assailed the validity of the orders dated 8-5-2009, 20-5-2009 and 6-6-2009 by which the respondent, No. 3, Executive Engineer, Water Resources Division, Multai, district-Betul has directed to disburse the amount of gratuity to the petitioner by withholding an amount of Rs. 1,06,531/-. 2. The facts giving rise to filing of the petition, briefly, stated, are that the petitioner held the substantive post of Sub-Engineer and was in-charge Sub-Divisional Officer and was posted at the relevant time in Water Resources Department at Multai, district-Betul. The petitioner attained the age of superannuation on 28-2-2005. After superannuation of the petitioner, the amount of gratuity was not paid to the petitioner. Thereupon, the petitioner approached this Court by filing the writ petition, namely, W.P. No. 15943/2005 (S). The aforesaid writ petition was disposed of by a Bench of this Court vide order dated 19-12-2008 with a direction to the respondents to release the amount of gratuity along with interest at the rate of 7% per annum within a period of three months. In pursuance of the aforesaid order, by impugned order dated 8-5-2009, an amount of Rs. 1,06,531/- was directed to be withheld from the amount of gratuity payable to the petitioner. In the aforesaid factual backdrop, the petitioner has approached this Court. 3. Learned counsel for the petitioner submitted that the action of the respondents in withholding the amount of gratuity without taking recourse to rule 9 of the M.P. Civil Service (Pension) Rules, 1976 (in short 'the Rules') is procedurally ultra vires. Attention of this Court has been invited to paragraph 3 of the reply and it has been submitted that the amount in question is sought to be recovered from the petitioner on account of negligence and, therefore, the respondents are duty bound to follow the procedure prescribed under rule 9 of the Rules. It is further submitted that alleged negligence was committed by the petitioner between the period from 1989 to 1996. It is also urged that reliance placed by the respondents on rules 62 and 65 of the Rules is misconceived as under the aforesaid Rules, ascertainable Government dues like house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, over-payment of pay and allowances and arrears of income- tax deductible at source under the Income Tax Act, 1961, can be recovered. 4. 4. On the other hand, learned Government Advocate for the respondents submitted that government dues which have been ascertained and assessed can always be recovered from the gratuity of a government servant. In this connection, learned Government Advocate has invited attention of this Court to Rule 60(2) of the Rules as well as Rule 61(c)(ii) of the Rules. It is further submitted that for recovery of ascertained government dues it is not necessary for the Department to initiate a departmental enquiry against the government servant. 5. I have considered the respective submissions made by learned counsel for the parties. Rule 3(l)(n) of the Rules defines Tension to include the gratuity except when it is used in contradistinction to gratuity. Rule 9(1) of the Rules reads as under: "9. Right of governor to withhold or withdraw pension.- (1) The Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from pension of the whole or part of any pecuniary loss caused to the Government if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement: Provided that the State 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 pension shall not be reduced below the minimum pension as determined by the Government from time to time." 6. From perusal of rule 9 (1) of the Rules, it is apparent that where a government servant is found guilty of grave misconduct or negligence during the period of his service including the service rendered upon-re-employment, the Governor has reserved the right of withholding or withdrawing the pension. Thus, rule 9 of the Rules operates in a case where a government servant is found to be guilty of grave misconduct or negligence during the period of service. Rule 60 (2) of the Rules provides that the Head of the Office shall furnish to the audit officer at least one and a half months before the date of retirement of the government servant the government dues recoverable out of the gratuity which have been ascertained and assessed. Rule 60 (2) of the Rules provides that the Head of the Office shall furnish to the audit officer at least one and a half months before the date of retirement of the government servant the government dues recoverable out of the gratuity which have been ascertained and assessed. Explanation to rule 65(2) of the Rules defines the expression "ascertainable government dues" to include balance of house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, over-payment of pay and allowances and arrears of income- tax deductible at source under the Income Tax Act, 1961, In any case, even if the government wants to recover the government dues, the same has to be ascertained and for that purpose an opportunity of hearing is required to be given to concerned government servant. 7. However, in the present case, from the stand which has been taken by the respondent in paragraph 3 of the return it is evident that amount in question has been withheld from the amount of gratuity of the petitioner on account of irregularities committed by him which has resulted in loss to the State Government. The aforesaid stand taken in paragraph 3 of the return, leaves no iota of doubt that the amount of gratuity has been withheld as the petitioner was negligent in performing the duties. Thus, the action which was contemplated against the petitioner which has culminated in passing the order dated 8-5-2009 clearly brings the impugned action within the purview of rule 9 of the Rules. In the facts of the case, the amount in question cannot be withheld from the gratuity of the petitioner without taking recourse to procedure prescribed under rule 9 of the Rules. 8. In view of the preceding analysis, the impugned orders dated 8-5-2009, 20-5-2009 and 6-6-2009 are procedurally ultra vires and the same cannot be sustained in the eye of law. Accordingly, the same are hereby quashed. The respondents are directed to release the amount in question to the petitioner within a period of three months from the date of production of certified copy of this order. Accordingly, the same are hereby quashed. The respondents are directed to release the amount in question to the petitioner within a period of three months from the date of production of certified copy of this order. Keeping in view the order dated 19-12-2008 passed by a Bench of this Court in W.P. No. 15943/2005 (S) it is directed that the aforesaid amount shall carry interest at the rate of 7% per annum from the date when it became due till its actual payment. Needless to state, the respondents would be at liberty to take action against the petitioner in accordance with rule 9 of the Rules or any other legal provision, if so advised. 9. With the aforesaid directions, the writ petition is disposed of. Orde accordingly.