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2015 DIGILAW 505 (JK)

A. B. Majid Gurkoo v. State

2015-09-23

ALI MOHAMMAD MAGREY

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JUDGMENT : ALI MOHAMMAD MAGREY, J. 1. In the instant petition, the petitioner has questioned communication no. PNR-V/S-1/ 12-13/37381/2333-85 dated 21.01.2013 addressed to the Executive Engineer Electric Division Rajbagh, Srinagar, whereby a process for recovery on account of excess pay and allowances drawn by petitioner is directed to be recovered out of Death-cum-Retirement Gratuity of the petitioner, besides also petitioner seeks direction for settlement of his post retrial benefits on the basis of order of superannuation dated September, 2012. 2. The Petitioner has been engaged as labour and came to be regularised as Lineman in the respondent department and after serving in the department with dedication reached to the age of superannuation and ultimately retired on September, 2012. It is submitted that instead of finalising the pension case, the respondents issued the aforesaid communication, whereby the respondents sought recovery of excess amount drawn by the petitioner during his service tenure. Feeling aggrieved of the action of respondents 1 to 4, petitioner challenges the same inter alia on the grounds detailed out in the petition. 3. On notice respondents appeared and submitted objections, respondent no. 4 in his reply stated that the petition is not maintainable. It is submitted that respondent is pension authorising agency while as the pension sanctioning authority is the parent department of the petitioner and the grievances put forth by the petitioner is purely an administrative in nature and required to be looked into and addressed by the respondent 1 to 3 other than the answering respondent. It is further submitted that the role of answering respondent is limited and has to authorise the pensionary benefits as and when it is sanctioned by the concerned Head of the Department under rules. It is submitted that as and when the pension case of the petitioner is forwarded to the answering respondent, the same will be settled as expeditiously as possible. 4. Heard learned counsel for the parties and considered the matter. 5. Mr. Misri Ld counsel for the petitioner submits that during the service tenure, respondents have never raised objection that the petitioner has drawn excess pay however after retirement respondents have without any authority stalled the process for settlement of the post retrial benefits due to petitioner. 4. Heard learned counsel for the parties and considered the matter. 5. Mr. Misri Ld counsel for the petitioner submits that during the service tenure, respondents have never raised objection that the petitioner has drawn excess pay however after retirement respondents have without any authority stalled the process for settlement of the post retrial benefits due to petitioner. The respondents having delayed the release of salary/post retrial benefits, time and again asked to settle the same, however, having denied the benefits have caused great prejudice to the interests of the petitioner and the arbitrary, unfairness and illegal action of the respondents has deprived the petitioner from legitimately earned salary/post retrial benefits which in terms of law is, his, property, thereby deprivation of the property amount violation of his fundamental right guaranteed under the Constitution of India. 6. Mr. Misri, learned appearing counsel for petitioner submits that there is no provision under Civil Service Regulations, which authorises respondents to pass such an order. 7. It is further submitted that no recovery can be affected in terms of Article 168-A: which is extracted as under:- "Art. 168-A. The Government reserves to itself the right to order the recovery from the pension of an officer of any amount on account of losses found in Judicial or Department proceedings to have been caused to Government by the negligence or fraud of such officer during his service provided that- (d) such Departmental proceedings if not instituted while the officer was on duty:- (v) shall not be instituted save with the sanction of Government. (vi) shall be instituted before the officer's retirement from service or within a year from the date on which he was last on duty, whichever is later. (vii) shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty. (viii) shall be conducted by such authority and in such places as the Government may direct. (e) all such departmental proceedings shall be conducted if the officer concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made. (f) such judicial proceedings if not instituted while the officer was on duty, shall have been instituted in accordance with sub clauses (ii) and (iii) of cause (a) above." 8. (f) such judicial proceedings if not instituted while the officer was on duty, shall have been instituted in accordance with sub clauses (ii) and (iii) of cause (a) above." 8. It is submitted that Article 168-B of CSR governs the recovery from pension and compassionate allowances, which is extracted as under: "168-B. In cases not governed by the provisions of rule 168-A, the following rules shall govern the recoveries from pension and compassionate allowances:- (4) A claim may become known and the question of recovery may arise:- (c) When the calculation of pension is being made and before the pension is actually sanctioned. (d) After the pension has been sanctioned. (5) The claim and the recovery may be one or other of the following:- (d) Recovery as a punitive measure in order to make good the loss caused to Government as a result of negligence or fraud on the part of the person concerned while he was in service. (e) Recovery of other Government dues such as over-issues of pay, allowances or leave salary or admitted and obvious dues such as house rent, life insurance premia, outstanding motor-car, house building travelling and other advances. (f) Recovery of non-Government dues. (6) In cases falling under clause (1) (A) above, none of the recoveries mentioned in clauses 2(a) to (c) above may be effected by a reduction of the pension about to be sanctioned except in the following circumstances:- (c) when the service of a Government servant can be held to have been not thoroughly satisfactory, a reduction in the amount of pension may be made under Article 234 by a competent authority although no direct penal recovery from pension is permissible. (d) when the pensioner, by request made or consent given, has agreed that the recovery may be made. If such request is not made or consent is not given by the pensioner, even sums admittedly due to Government such as house rent, outstanding advances etc. may not be recovered from pension." 9. Mr. B.A. Misri, Ld appearing counsel for the petitioner submits that the rules governing the recoveries from pension of the petitioner are quoted above, it does not authorise the official respondents to recover the amount from the pension of the petitioner. 10. may not be recovered from pension." 9. Mr. B.A. Misri, Ld appearing counsel for the petitioner submits that the rules governing the recoveries from pension of the petitioner are quoted above, it does not authorise the official respondents to recover the amount from the pension of the petitioner. 10. It is submitted that promotion given to the petitioner under rules cannot be declared as illegal after considerable time authorising the respondents to recover the amount received by petitioner out of such promotion. 11. It is submitted that promotion order of petitioner during his service has neither been reviewed nor rescinded and the benefit on account of promotion obtained by the petitioner are not outcome of misrepresentation on the part of petitioner, therefore, no recovery can be made from him. 12. Ld counsel for the petitioner while strengthening his argument has referred to and relied upon case titled State of Punjab and Others vs. Rafiq Masih (White Washer), AIR 2015 SC 696 and Rajinder Kumar Gupta vs. State of J&K and Others, 2005 (4) JKJ 199 : 2006 SLJ 368 . 13. Learned counsel for the petitioner submits that since petitioner has retired from service on September, 2012 on reaching the age of superannuation and ceases to be an employee of the Government and submits that there is no Rule which provides for recovery after retirement of an employee. Once an employee retires and ceases to be so, no recovery can be made from pension or allowances of the petitioner. 14. There is no provision under rules which authorises/empowers respondents to make recovery after the retirement when admittedly the petitioner has ceased to be an employee of the Government. 15. Viewed thus, the writ petition is allowed. (i) By writ of certiorari impugned communication No. PNR-V/S-1/12-13/37381/2333-85 dated 21.01.2013 is quashed. (ii) By writ of mandamus respondents are directed to settle the post retrial benefit case of petitioner and release the same including pensionary benefits in favour of the petitioner within a period of three months from today, failing which petitioner shall be entitled to the interest @ 6% on the amount due on account of post retrial benefits from respondents 1 to 3. Respondents 1 to 3 shall submit the pension case of petitioner to respondent no. 4 who shall finalise the same within a period of one month thereafter. In case, respondent no. Respondents 1 to 3 shall submit the pension case of petitioner to respondent no. 4 who shall finalise the same within a period of one month thereafter. In case, respondent no. 4 fails to finalise the pension case of petitioner within aforesaid period he shall be liable to pay amount of Rs. 2/- lacs (Rs. Two lacs) as compensation to the petitioner. Contempt No. 424/2014: 16. Since the writ petition stands allowed in terms of final order/judgment passed on 23.09.2015, the instant contempt petition shall stand settled. 17. Disposed of 18. Registry to place a copy of the judgment on the file of contempt petition.