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Madhya Pradesh High Court · body

2014 DIGILAW 1131 (MP)

Kudusi Maval v. State of M. P.

2014-09-09

SHEEL NAGU

body2014
ORDER 1. This petition under Article 227 prays for the following reliefs : 1. that the respondents be directed to release withheld amount of 10% pension and gratuity along with arrears and interest at the rate of 15% p.a. 2. That any other relief which is suitable in the facts and circumstances of the case in favour of the petitioner including the costs throughout may also be granted. 2. The foundational factual matrix involved in this case is that the original petitioner who is now been substituted by his wife on account of his death which took place during pendency of this petition, was initially appointed as Jamadar in Fisheries Department in1966 and promoted as LDC in 1972. He attained the age of superannuation on 30th of June, 2004. It is contended that due to non-handing over of charge of the Store on account of the petitioner being unwell, letter of request was written by the petitioner Annexure R-1 dated 1.9.2004 stating that as soon as the petitioner gets well he shall hand over the charge, awaiting which 90% of his pension be released so that he could make his ends meet. 3. The State has filed its reply initially relying upon the above said letter Annexure R-1 dated 1.9.2004 but later following it up with an order dated 13.9.2004 Annexure R-2 by which 90% pension of the petitioner i.e. 2340/per month was sanctioned w.e.f. 1.7.2004. 4. The counsel for the State contends that until and unless charge of the Store is handed over by the petitioner the withheld pension to the extent of 10% and gratuity to the extent of 10% cannot be released. 5. Per contra, learned counsel for the petitioner by filing rejoinder has submitted that the charge of the Store was handed over by the petitioner on 30th August, 2005 vide Annexure P-7 to another person. 6. Learned counsel for the State seeks some time to file additional reply to bring on record the factum of the petitioner having actually handedover charge or not. 7. This Court declines grant of time to the State to file additional reply, not only for eschewing delay but also for the reason that even if the charge of the Store was not handed over by the petitioner, the pension and gratuity could not bewithheld to any extent. 8. 7. This Court declines grant of time to the State to file additional reply, not only for eschewing delay but also for the reason that even if the charge of the Store was not handed over by the petitioner, the pension and gratuity could not bewithheld to any extent. 8. As regards withholding of pension the scheme of the Pension Rules is very clear that no recovery or withholding of pension due to a civil post holder can take place in full or in part without the order of the Governor of the State as per rule 9. 9. It is further not disputed that there are no disciplinary proceedings pending against the petitioner. 10. In view of the above, withholding of pension to the extent of 10% is unlawful. 11. Withholding of 10% gratuity is now taken up infra. Late husband of the petitioner was sanctioned and paid 90% gratuity in terms of rules 66(2)(c ) of the Pension Rules. As such 10% of the gratuity was withheld possibly due to the failure of the Government to assess and adjust the recoverable Government dues from the late husband of the petitioner. The material placed on record by the rival parties does not disclose that any security or cash deposit was taken from late husband of the petitioner at the time of his retirement on 30th of June, 2004, as provided in rule 66(1)(b) and 66(2)(a) and (b). Beside, the provision contained in rule 66(3)(a) provides for a maximum period of six months from the date of retirement for the government to assess and adjudge the recoverable dues. This very provision further stipulates that if no claim is made by the Government against the government servant within six months from the date of retirement it shall be presumed that no Government claim excluding claims of house rent and water charges are outstanding against him. Further, the contents of proviso to rule 66(4) prohibits the Government from recovery even of house rent and water charges after elapse of period of 12 months from the date retirement. Lastly rule 66(4) lays down that dues which remain unrealized within six months provided in rule 66(3)(a) and if the claims in respect of such dues are received after the said period of six months then the same shall be recoverable from the retired Government servant through legal procedure and not by any other means. Lastly rule 66(4) lays down that dues which remain unrealized within six months provided in rule 66(3)(a) and if the claims in respect of such dues are received after the said period of six months then the same shall be recoverable from the retired Government servant through legal procedure and not by any other means. 12. In the instant case not only the period of six months but also the period of 12 months after the date of retirement of the late husband of the petitioner has expired and, therefore, the Government is statutorily prohibited from making any recovery except by taking recourse to legal procedure. 13. In this view of the matter, since the Government dues did not relate to house rent and water charges, the same could have been recovered within six months from the date of retirement and not thereafter. Late husband of the petitioner retired on 30th of June, 2004. The dues if any could have been recovered only till 30th of December, 2004. Thus w.e.f. 1.1.2005, the withholding of 10% of gratuity by the Government became unlawful. 14. Rule 66 of the M.P. Civil Services (Pension Rules), 1966 is reproduced below for convenience and ready reference. “66. Furnishing of surety by retiring Government servant. -- (1)(a) If any of the Government dues other than those referred to in rule 65 remain unrealized and unassessed for any reasons, the retiring Government servant may be asked to furnish in Form 8 a surety of a suitable permanent Government servant, holding a pensionable post. (b) If the surety furnished by him is found acceptable the ground of his pension and gratuity shall not be delayed. (2) (a) If the retiring Government servant is unable or unwilling to furnish a surety, suitable cash deposit may be taken from him, or such portion of gratuity payable to him as may be considered sufficient may be held over till the outstanding dues are assessed and adjusted. (b) The cash deposit to be taken or the amount of gratuity to be withheld shall not exceed the estimated amount of the outstanding dues plus twenty five per cent thereof. (b) The cash deposit to be taken or the amount of gratuity to be withheld shall not exceed the estimated amount of the outstanding dues plus twenty five per cent thereof. (c ) Where it is not possible to estimate the approximate amount recoverable from the retiring Government servant the amount of deposit to be taken or to be withheld shall be limited to ten percent of the amount of gratuity or one thousand rupees, whichever is less. (3)(a) Efforts shall be made to assess and adjust the recoverable Government dues within a period not exceeding six months from the date of retirement of the Government servant and, if no claim is made on Government account against the Government servant within such a period it shall be presumed that no Government claim excluding claim of house rent and water charges is outstanding against him. (b) The Government deus as assessed shall be adjusted against the cash deposit or the amount withheld from the gratuity and the balance, if any, shall be released to the retired Government servant after the expiry of the period referred to in clause (a) (c ) Where a pensioner has furnished a surety, the surety shall be released after the expiry of the period referred to in clause (a) provided the dues assessed up to that time have been recovered. (4) The Government dues which remain unrealized within the period referred to in clause (a) of sub-rule (3) and such other dues, the claim for which is received after that period, shall be recoverable from the retired Government servant through legal procedure : Provided that in respect of house rent and water charges, the amount, if any, the claim for which is received after the period of 12 months from the date of retirement of the Government servant shall not be recoverable from the retired Government servant. Note: Where Public Works Department and Public Health Engineering Department have not found it possible within 1-1/2 months from the date of demand by Head of Office which shall be made immediately after the date of the retirement of the Government servant, whether any amounts are due from a retired Government servant, or have not issued no dues certificate, the Head of Office in addition to the action under this rule should call upon the retired Government servant concerned to furnish a declaration in Form 25. He should be further required to sign an undertaking in Form 26. On receipt of the aforesaid declaration and undertaking, Head of Office may write to the Audit Officer to release the pension/gratuity. If the demands for any amount due against such retired Government servant are not made within 12 months of his retirement the officers concerned in Public Works Department and Public Health Engineering Department as the case may be, would be held personally responsible for any loss incurred by the Government.” 15. Pension and other terminal dues including gratuity are no more bounty to be disbursed at the sweet will of the State. Pension is a precious right and is now treated to be akin to property under Article 300A of Constitution of India, deprivation of which without following due process of law is impermissible. 16. In view of the above, this petition deserves to be and is hereby allowed with the following directions : 1. The respondents are directed by writ of mandamus to release unduly withheld 10% pension of the petitioner w.e.f. 1.7.2004 along with all arrears arising therefrom calculated after taking into account the pay revisions which have since taken place with interest at the rate of 9% per annum computed from 1.7. 2005 till its realization. 2. The respondents are further directed to release 10% gratuity due to the petitioner w.e.f. 1.1.2005 along with interest calculated at the rate of 9% per annum from 1.1.2005 till its realization. 3. The petitioner is entitled to the cost of this avoidable litigation which is quantified at Rs.5,000/- to be paid by the respondents jointly with liberty to recover the same from erring officers/employees. ............