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2015 DIGILAW 459 (MP)

Devesh Kumar Singh Parihar v. State of M. P.

2015-04-21

SUJOY PAUL

body2015
JUDGMENT : Sujoy Paul, J. 1. Learned counsel for the parties contended that the matters involve similar question of facts and law and, therefore, may be heard analogously. Accordingly, matters were analogously heard and decided by this common order. Writ Petition No. 5550/2010 2. The petitioner was working as Sub-Engineer in the respondent- department. He retired on attaining the age of superannuation on 29.2.2008. The petitioner prayed for releasing the retiral dues including pension, gratuity and other benefits. It is contended that the respondents have only released 90 per cent pension to the petitioner. Rest of the amount was not released by contending that an amount of Rs. 18,71,421/- is due on the petitioner and unless that amount is adjusted, full benefits cannot be extended. 3. Criticizing this order, Shri Rohit Jagwani contended that the action of the respondents is contrary to rule 9 of M.P. Civil Services (Pension) Rules, 1976 (for short, "Pension Rules"). He further submits that the circular dated 4.6.2009 (Annexure P/9) shows that the PWD Department has disapproved the practice of the department in not releasing the retiral dues on the ground of alleged adjustment. It is further contended that the department found that one V.K. Mishra has not committed any error and, therefore, amount in relation to said Shri Mishra can be adjusted. The petitioner being similarly situated is entitled for same benefits. It is further contended that the period for which adjustment is sought for is four years prior to the retirement of the petitioner. Thus, no adjustment or recovery can be made in this regard. He submits that pension can be stopped only in consonance with rules 8 and 9 of the Pension Rules. Writ Petition No. 3225/2011 4. This petitioner was also working as Sub-Engineer. He retired on 30.6.2008. In his case, an amount of Rs. 5,74,755/- is shown as outstanding and he was directed to adjust this amount. This order is criticized on same ground which is assailed in the above matter. The reliance is placed on note sheet (Annexure P/11) to contend that the amount outstanding against the petitioner is liable to be adjusted. Reliance is also placed on the judgment of this Court in Writ Petition No. 6583/2006 (Annexure O/8). In support of aforesaid contentions, Shri Jagwani relied on following judgments:- (1) AIR 2013 SC 3383 (State of Jharkhand & ors. vs. Jitendra Kumar Srivastava and another). Reliance is also placed on the judgment of this Court in Writ Petition No. 6583/2006 (Annexure O/8). In support of aforesaid contentions, Shri Jagwani relied on following judgments:- (1) AIR 2013 SC 3383 (State of Jharkhand & ors. vs. Jitendra Kumar Srivastava and another). (2) (2008) 3 SCC 44 (S.K.Dua vs. State of Haryana & another). (3) 2013 (4) MPLJ 35 (Bhaskar Ramchandra Joshi vs. State of MP). (4) 2013 (4) MPLJ 39 (Bhavuti vs. Alam (deceased) through L.Rs. & another. (5) 2013 (2) MPLJ 696 (Nand Kishore Shrivastava vs. State of MP). (6) 2013 (2) MPLJ 699 (Yashraj Datta (dead) through LR Kamlabai vs. Bherulal. (7) 2010 (3) MPHT 172 (D.D. Jalota vs. State of MP & others). (8) Writ Petition No. 4540(2009 (Shyam Babu Sharma vs. State of MP). 5. Per Contra, Smt. Patankar supported the action of the respondents and contended that unless the amount is adjusted, petitioners are not entitled to get pension. She drew the attention of this Court on various paragraphs of the return filed. 6. I have bestowed my anxious consideration on rival contentions and perused the record. 7. Petitioners have heavily relied on rule 9 of the Pension Rules. It is contended that the aforesaid action could have been taken only for a period which is within four years from the date of retirement. For this, reliance is placed on the judgment of this Court in Nand Kishore Shrivastava (supra). A careful scrutiny of facts in these cases will make it clear that there is no allegation against the petitioner about any misconduct. Thus, rule 9 has no application in the facts and circumstances of this case. In para 7 of the judgment of Nand Kishore Shrivastava (supra), this Court opined that the action which was contemplated against the petitioner and ultimately resulted in passing the impugned order brings the action within the purview of rule 9 of the said rules. In the present case, the facts are totally different. Thus, rule 9 has no role to play. The opening words in rule 9 are "when employed has caused any pecuniary loss to the department and if he is found guilty in a departmental or judicial proceedings, his pension can be withheld etc". 8. In my view, this case is covered under rule 65 of the Pension Rules, which reads as under:- 65. The opening words in rule 9 are "when employed has caused any pecuniary loss to the department and if he is found guilty in a departmental or judicial proceedings, his pension can be withheld etc". 8. In my view, this case is covered under rule 65 of the Pension Rules, which reads as under:- 65. Recovery and adjustment of Government dues.- (1) It shall be the duty of every retiring Government servant to clear all Government dues before the date of his retirement. (2) Where a retiring Government servant does not clear the Government dues and such dues are ascertainable.-- (a) an equivalent cash deposit may be taken from him; or (b) 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. Explanation.-1. The expression "ascertainable Government dues" includes 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." 9. Shri Rohit Jagwani has taken pains to contend that rule 65 is not applicable in the present matter. He relied on Explanation-I, appended to the sad rules. He contends that the dues which are only pertaining to occupation of Government accommodation, over-payment of pay and allowances and arrears of income tax alone can be deducted under the said rules. Nothing beyond can be deducted as per said provision. 10. I do not see any merit in this contention. Rule 65(1), in no uncertain terms, makes it clear that every Government servant is required to clear "all Government dues" before the date of his retirement. "All Government dues" are wide enough to include the dues in question in this case. The Explanation- I makes it clear that ascertainable Government dues includes certain dues which are mentioned in the later part of the Explanation- I. The word "includes" has a definite connotation. In (1971) 3 SCC 550 (C.I.T., Andhra Pradesh vs. M/s. Taj Mahal Hotel, Secunderabad), the Apex Court opined that the word "includes" is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the "Statute". In (1971) 3 SCC 550 (C.I.T., Andhra Pradesh vs. M/s. Taj Mahal Hotel, Secunderabad), the Apex Court opined that the word "includes" is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the "Statute". When it is so used, these words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include. The word "include" is also susceptible of other constructions. In (2008) 5 SCC 449 (Ramanlal Bhailal Patel and others vs. State of Gujarat), the Apex Court opined that where a definition uses the word "includes", as contrasted from "means", the word defined not only bears its ordinary, popular and natural meaning, but in addition also bears the extended statutory meaning. In my view, the Statute by using the word "includes" added and explained certain dues in addition to "all Government dues" mentioned in rule 65(1) of the Pension Rules. 11. The petitioners have relied on the judgment of Apex Court in the case of State of Jharkhand vs. Jitendra Kumar Srivastava (supra). However, a plain reading of para 2 shows that this judgment is applicable in cases where there is no enabling provision in the Pension Rules in relation to withholding part of pension and gratuity. In the present case, as noticed above, rule 65 specifically deals with the said aspect. Thus, this judgment is of no assistance to the petitioner. The judgment of S.K. Dua (supra) is also based on a disciplinary proceeding. The said case has no application in the factual matrix of the present matter. In Bhaskar Ramchandra Joshi (supra), this Court held that pension and retiral dues are not bounty. These benefits cannot be withheld without following the due process. Similarly, in Shyambabu Sharma (supra) this Court was dealing with a case, which has applicability under rule 9(2)(b)(ii) of the Pension Rules. The said case has no application because in this case the adjustment is not arising out of any disciplinary case or judicial proceedings. For the same reason, the judgment of D.D. Jalota (supra) has no application. 12. The ancillary question is that whether the department was justified in not releasing the pension. In my view, the department has erred in withholding the pension. For the same reason, the judgment of D.D. Jalota (supra) has no application. 12. The ancillary question is that whether the department was justified in not releasing the pension. In my view, the department has erred in withholding the pension. "Pension" is defined in rule 2(n) of the Rules, which reads as under:- "(n) "Pension" includes gratuity except when it is used in contradistinction to gratuity". A conjoint reading of rule 2(n) with rule 65 will make it clear that the Legislature in its wisdom has decided to confine the action of deducting the amount from gratuity under rule 65 of Pension Rules. In my view, in rule 65, the gratuity is used in contradistinction to pension. Thus, by invoking rule 65 the deduction can be made from gratuity only. Thus, the action of the respondents in withholding pension and releasing only 90 per cent pension is without authority of law. Apart from this, rule 65(2)(b) makes it clear that the amount arising out of Government dues can be recovered in equal proportion from the gratuity. For example, if Rs. 3.50 Lacs is the outstanding Government dues and amount of gratuity is more than that, the respondents can withhold only an amount which is equal to the recoverable due on account of ascertainable Government dues. Therefore, if respondents have withheld more amount of gratuity than the outstanding dues, the action to that extent is impermissible. 13. It is noticed that the name of petitioner of Writ Petition No. 3225/2011 is mentioned in order dated 19.4.2011 (Annexure P-6) along with one Shri Sitaram Gupta, Sub-Engineer. By order dated 19.4.2011 the department decided to withhold the benefits on the basis of adjustable amount. It is noticed that said Shri Sitaram Gupta approached this Court in Writ Petition No. 6583/2006 (Annexure P/8). So far the question of adjustment is concerned, this Court directed as under:- "9. So far as other dues are concerned, as there is statement that the petitioner has not appeared before the competent authority for resolving the outstanding amount showing against him, the petitioner is directed to appear before the Executive Engineer, Public Works Department, Gohad district Bhind to resolve the controversy relating to the amount stated in Annexure R/1 dated 30/08/2006. The petitioner shall appear before the Executive Engineer on or before 25th May, 2009. The petitioner shall appear before the Executive Engineer on or before 25th May, 2009. The Executive Engineer shall look into the matter and shall decide the statement submitted by the petitioner in respect of outstanding amount shown against the petitioner in respect of certain work carried out by the petitioner during his tenure and even if there is some outstanding amount against the petitioner, a proper show cause notice shall be issued to the petitioner enabling the petitioner to file a reply in the matter. The respondents shall conclude all the proceedings and shall release all other terminal dues to the petitioner within a period of three months from the date of order passed by the Executive Engineer in the matter." 14. Since the petitioner and Sitaram Gupta are sailing in the same boat, so far adjustment is concerned, I find no reason to deviate from the direction given in Sitaram Gupta (supra). At the cost of repetition, I am unable to hold that the department cannot adjust the amount if the same is illegally liable to be adjusted. The document dated 30.8.2006 (Annexure P/2) shows that the head and amount which are required to be adjusted were shown to the petitioner much before his retirement. For this reason also, I am unable to hold that the respondents' action is without authority and jurisdiction. 15. As analyzed above, the action of the respondents in not releasing the pension runs contrary to rule 65 of the Pension Rules. The respondents are directed to release the remaining pension to the petitioners from due date within 90 days from the date of production of copy of this order. This amount was unauthorisedly withheld by the respondents and, therefore, the petitioner shall get 12 per cent interest on delayed payment on this withheld amount till the date of realisation. If the gratuity amount of the petitioners is more than recoverable dues/outstanding amount, the respondents' action of retaining the entire amount of gratuity would be improper. In other words, if the total amount of gratuity payable to the petitioners was more than the amount of outstanding/recoverable dues, the amount which is beyond the recoverable dues was improperly withheld. In that case, the said amount needs to be refunded within ninety days with the same amount of interest which is given on pension. 16. In other words, if the total amount of gratuity payable to the petitioners was more than the amount of outstanding/recoverable dues, the amount which is beyond the recoverable dues was improperly withheld. In that case, the said amount needs to be refunded within ninety days with the same amount of interest which is given on pension. 16. So far the question of adjustment is concerned, the respondents are directed to follow the same procedure which was directed by this Court in para 9 of the judgment of Sitaram Gupta (supra). 17. Resultantly, petitioners are directed to appear before the concerned Executive Engineer on 11.5.2015 along with copy of this order. The said authority shall thereafter deal with the matter as per para 9 of the judgment of Sitaram Gupta (supra). 18. Petitions are partly allowed to the extent indicated above.