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2018 DIGILAW 706 (MP)

Ram Avtar Singh v. State of Madhya Pradesh

2018-08-16

SUJOY PAUL

body2018
JUDGMENT : SUJOY PAUL, J. 1. The petitioner, who retired on attaining the age of superannuation on 30.11.2001, has assailed the order dated 22.02.2008 (Annexure-P/13) whereby respondents have decided to recover Rs. 18,081.50 from the gratuity of the petitioner. This order is assailed by contending that after retirement of the petitioner, the respondent No.2 has no authority, jurisdiction and competence to withhold the said amount from gratuity. 2. Mrs. Gulab Kali Patel, learned counsel for the petitioner submits that as per the M.P. Civil Services (Pension) Rules, 1976, the pension or gratuity can be withheld only as per the provisions mandated in the said rules. Neither Rule 9 of Pension Rules nor Rule 65 of the said Rules permit the respondent No.2 to pass the impugned order. 3. Per conta, learned counsel for the State submits that Rule 9 of Pension Rules is confined to stoppage/withholding of pension and it does not include gratuity. Rule 65 in specific, deals with the aspect of gratuity. Since the Government dues were not cleared by the petitioner, in exercise of power under Rule 65, the aforesaid impugned order is passed, which is in consonance with law. 4. No other point is pressed by learned counsel for the petitioner. 5. I have heard learned counsel for the parties at length and perused the record. 6. This is trite law that retiral dues of a Government servant are not bounty. Retiral dues are earned by him by rendering long services to the department. The retiral dues are paid at the December of his career so that he can settle down in his life and discharge his family and social obligations. Retiral dues are held to be "property" within the meaning of Article 300-A of the Constitution. In catena of judgments, it was held that the retiral dues can be withheld only if a statutory provision is there which permits the department to withhold/withdraw or stop the pension/retiral dues. This Court in Bhaskar Ramchandra Joshi Vs. State of M. P. and others, (2013) 4 MPLJ 35 ) has held as under: "10. The Apex Court on different occasions had considered the scope and ambit of property. In Madhav Rao Scindia Vs. Union of India, (1971) AIR SC 530 opined that Privy Purse payable to ex-rulers is property. In Nagraj, K Vs. State of M. P. and others, (2013) 4 MPLJ 35 ) has held as under: "10. The Apex Court on different occasions had considered the scope and ambit of property. In Madhav Rao Scindia Vs. Union of India, (1971) AIR SC 530 opined that Privy Purse payable to ex-rulers is property. In Nagraj, K Vs. State of A. P., 1985 AIR SC 553, Apex Court opined that right of person to his livelihood is property which is subject to rules of retirement. In State of Kerala Vs. Padmanabhan, (1985) AIR SC 356, the Apex Court opined that right of pension is property under the Government service rules. In Madhav Rao Scindia Vs. State of M. P., (1961) AIR SC 298 and State of M. P. Vs. Ranojirao, (1968) AIR SC 1053, the Apex Court opined that property in the context of Article 300-A includes 'money' salary which has accrued pension, and cash grants annually payable by the Government; pension due under Government Service Rules; a right to bonus and other sums due to employees under statute. This view was also taken in Deokinandan Vs. State of Bihar, (1971) AIR SC 1409. Bombay High Court in the case Shapoor M. Mehta Vs. Allahabad Bank, (2012) 3 MhLJ 126 opined that retiral benefits including pension and gratuity constitute a valuable right in property. In Deokinandan, Apex Court opined as under: "(i) The right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no powers to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order denying the petitioner right to receive pension affects the fundamental right of the petitioner under Article 19(1)(f) and 31(a) of the Constitution and as such the writ petition under Article 32 is maintainable." 7. The same view is taken in the case of State of Jharkhand and others Vs. Jitendra Kumar Shrivastava and another, (2013) 12 SCC 210 . 8. "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". 9. Rule 9 makes it clear that pension can be withheld only as per the procedure prescribed in the said Rule 9. Jitendra Kumar Shrivastava and another, (2013) 12 SCC 210 . 8. "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". 9. Rule 9 makes it clear that pension can be withheld only as per the procedure prescribed in the said Rule 9. The said power can be exercised by the Governor. In the present case, the respondents have not followed the method prescribed under Rule 9 of the Pension Rules. The impugned order is not passed by the Governor. Rule 65 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 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." 10. A plain reading of this rule makes it clear that the Law Makers have decided to permit the department to recover or adjust "ascertainable Government dues". A plain reading of Rule 65 and explanation 1 shows that the amount mentioned in Annexure-P/13 does not fall within the ambit of "ascertainable Government dues". In (Ramesh Chandra Gupta Vs. State of M. P. and others, (2010) ILR (MP) 2506), the question cropped up before this Court was : whether the dues would include "Miscellaneous Advance". It was held that for applicability of Rule 65, firstly the amount should fall into the category of "dues" and secondly, such dues should be specified dues like house building or conveyance advance or arrears of rent or overpayment of salary or allowances as prescribed. In view of this judgment, the amount mentioned in the impugned order dated 22.02.2008 cannot fall within the ambit of "dues" and consequently within the expression "ascertainable Government dues". In view of this judgment, the amount mentioned in the impugned order dated 22.02.2008 cannot fall within the ambit of "dues" and consequently within the expression "ascertainable Government dues". The respondents are unable to show any enabling statutory provision which empowers them to withhold the gratuity of the petitioner for the alleged loss caused to the department. 11. Resultantly, the order dated 22.02.2018 is set aside. The respondents are directed to release the withheld amount to the petitioner within 60 days from the date of production of copy of this order, failing which it will carry 12% interest till date date of actual payment. 12. Petition is allowed.