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Madhya Pradesh High Court · body

2019 DIGILAW 510 (MP)

Bhagirath Prasad v. State of M. P.

2019-07-11

VISHAL MISHRA

body2019
ORDER 1. The present petition has been filed by the petitioner being aggrieved by the illegal arbitrary action of the respondents whereby they have made recovery for amount of Rs. 1,46,878/- at the time of settling of retiral dues of the petitioner. The recovery made is reflected in the P.P.O. (Pension Payment Order) and the same has been done without issuing any show cause notice to the petitioner or without providing any opportunity of hearing to the petitioner. 2. The Learned Counsel for the petitioner submits that the petitioner has retired from the post of Inspector on 30th June, 2016 after completing the age of 60 years. It is alleged that no penalty can be imposed on a retired Government servant without the approval of the Governor of the State as per the rules 8 and 9 of M.P. civil-Services (Pension) rules, 1976 and the recovery made on the petitioner amounts to forceful recovery in excess of its jurisdiction, which is unsustainable. 3. The Learned Counsel for the petitioner has relied upon the judgment passed by the Hon'ble Supreme Court in the case of State of Punjab and ors. v. Rafiq Masih (White Washer) etc. reported in 2015(1) MPHT 130 (SC), wherein it is held that the recovery which is made from the retiral dues of the Government employee is impermissible. "16. This Court in Syed Abdul Qadir v.State of Bihar (2009) 3 SCC 475 held as follows: (SCC pp. 491-92, para 59) "59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. The learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. The learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." (Emphasis supplied) Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir (2009) 3 SCC 475 , that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year from the date of his retirement on superannuation." 4. The Learned Counsel for the petitioner placing reliance on the aforesaid law laid down by Hon'ble Supreme Court has prayed for quashment of the recovery and has prayed for the refund of the recovered amount along with interest. 5. The Learned Counsel for the petitioner placing reliance on the aforesaid law laid down by Hon'ble Supreme Court has prayed for quashment of the recovery and has prayed for the refund of the recovered amount along with interest. 5. Per-contra, it is contended by the Learned State Counsel that prior to superannuation the petitioner himself has submitted an indemnity bond wherein an undertaking is being given by the petitioner that if he fails to pay any amount demanded from him the same may be recovered from him by civil suit or as an arrears of land revenue. It is contended that the recovery is of the excess payment made to the petitioner at the time of revision of pay, to which he is not entitled. He has relied upon the judgment passed by the Hon'ble Supreme Court in the Case of Punjab and Haryana v. Jagdev Singh in Civil Appeal No. 3500/2006, wherein, it has been held that undertaking furnished by the officer while obtaining the benefit of revised pay-scale he is bound by such undertaking, therefore, the recovery is rightly being made from the petitioner as he has submitted indemnity bond for which have given the right to the respondents to recover the amount. Accordingly, has prayed for dismissal of the writ petition. 6. Heard learned counsel for the parties and perused the record. 7. The petitioner was initially appointed as Constable on 1.9.1983, subsequently promoted as a Head Constable in 1990 and Assistant Sub-Inspector in 2003 and he was promoted as an Inspector in the year 2011. He stood retired on attaining the age of superannuation on 30th June, 2016. The respondents have processed the case of the petitioner for settlement of his terminal dues and during the aforesaid period it was found that the petitioner has been made excess payment which was recovered from the petitioner as has been reflected in Pension Payment Order, an amount of Rs. 1,46,878/- has been recovered from the retiral benefits of the petitioner. The indemnity bond which has been filled by the petitioner was at the time of settlement of his terminal dues and not at the time of revision of his pay. Petitioner counsel has relied upon rules 8 and 9 of Pension Rules, 1976. Rules 8 and 9 of Pension Rules, 1976 are reproduced as under;- 8. Pension subject to future good conduct. Petitioner counsel has relied upon rules 8 and 9 of Pension Rules, 1976. Rules 8 and 9 of Pension Rules, 1976 are reproduced as under;- 8. Pension subject to future good conduct. - (1) (a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these Rules. (b) The pension sanctioning authority may, by order in writing withhold or withdraw a pension or part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct: Provided that no such order shall be passed by an authority subordinate to the authority competent at the time of retirement of the pensioner, to make an appointment to the post held by him immediately before his retirement from service : 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]. (2) Where a pensioner is convicted of a serious crime by a Court of law, action under clause (b) of sub-rule (1) shall be taken in the light of the judgment of the Court relating to such conviction. (3) In a case not falling under sub-rule (2), if the authority referred to in sub-rule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under sub-rule (1)- (a) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the pension sanctioning authority, such representation as he may wish to make against the proposal; and (b) take into consideration the representation, if any, submitted by the pensioner under clause (a). (4) Where the authority competent to pass an order under sub-rule (1) is the Governor, the State Public Service Commission shall be consulted before the order is passed. (4) Where the authority competent to pass an order under sub-rule (1) is the Governor, the State Public Service Commission shall be consulted before the order is passed. (5) An appeal against an order under sub-rule (1); passed by any authority other than the Governor, shall lie to the Governor and the Governor shall in consultation with the State Public Service Commission pass such order on the appeal as he deems fit. Explanation. - In this rule,- (a) the expression "serious crime" includes a crime involving an offence under the Official Secrets Act 1923 (No. 19 of 1923); (b) the expression "grave misconduct" includes the communication or disclosure of any secret official code or pass word or any sketch, plan, model, article, note, document or information such as is mentioned in section 5 of the Official Secrets Act, while holding office under the Government so as to prejudicially affect the interests of the general public, or the security of the country. 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]; (2) (a) The departmental proceedings [xxx], if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced, in the same manner as if the Government servant had continued in service : Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report regarding its findings to the Governor. (b) The departmental proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re-employment :- (i) shall not be instituted save with the sanction of the Governor; (ii) shall not be in respect of any event which took place more than four years before such institution; and [(iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings : (a) in which an order of dismissal from service could be made in relation to the Government servant during his service in case it is proposed to withhold or withdraw a pension or part thereof whether permanently or for a specified period; or (b) in which an order of recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders could be made in relation to the Government servant during his service if it is proposed to order recovery from his pension of the whole or part of any pecuniary loss caused to the Government]. (3) No judicial proceeding, if not instituted while the Government servant was in service, whether before his retirement or during his reemployment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution. (3) No judicial proceeding, if not instituted while the Government servant was in service, whether before his retirement or during his reemployment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution. (4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension and death-cum-retirement gratuity as provided in [rule 64], as the case may be, shall be sanctioned : [Provided that where pension has already been finally sanctioned to a Government servant prior to institution of departmental proceedings, the Governor may, by order in writing, withhold, with effect from the date of institution of such departmental proceedings fifty per cent of the pension so sanctioned subject however that the pension payable after such withholding is not reduced to less than [the minimum pension as determined by the Government from time to time] : Provided further that where departmental proceedings have been instituted prior to the 25th October, 1978, the first proviso shall have effect as it for the words "with effect from the date of institution of such proceedings" the words "with effect from a date not later than thirty days from the date aforementioned," had been substituted : Provided also that- (a) If the departmental proceedings are not completed within a period of one year from the date of institution thereof, fifty per cent of the pension withheld shall stand restored on the expiration of the aforesaid period of one year; (b) If the departmental proceedings are not completed within a period of two years from the date of institution the entire amount of pension so withheld shall stand restored on the expiration of the aforesaid period of two years; and (c) If in the departmental proceedings final order is passed to withhold or withdraw the pension or any recovery is ordered, the order shall be deemed to take effect from the date of the institution of departmental proceedings and the amount, of pension since withheld shall be adjusted in terms of the final order subject to the limit specified in sub-rule (5) of rule 43]. (5) Where the Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. (6) For the purpose of this rule- (a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to be instituted- (i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and (ii) in the case of civil proceedings, on the date the plaint is presented in the Court. 8. From the perusal of aforesaid rule, it is apparently clear that no recovery can be made from the terminal dues of the employee after his retirement and without the approval of Hon'ble Governor of the State. Similar aspect was considered by the Coordinate Bench of this Court in W.P. No. 9184/2018 (Krishan Kumar Sharma v. State of M.P. and others) decided on 14.5.2019; [Published in 2019 (2) VB 144] wherein after due consideration of the case of Rafiq Masih (supra) the Hon'ble High Court has quashed the recovery and has directed for refund of the amount to the petitioner along with interest. 9. It is seen that since the petitioner has not questioned the re-fixation of his pay under the Madhya Pradesh Pay Revision rules, 2009. The issue which crops up for consideration is whether the authorities were justified in recovering the excess amount said to have been paid to the petitioner at the time of wrong fixation. There is nothing on record to show that the petitioner has ever applied for or has misrepresented at the time of pay-fixation, rather there is no material on record to show that any role is being played by the petitioner at the time of his pay-fixation under Madhya Pradesh Pay Revision rules, 2009. It was the Competent Authority has revised the pay-scale of the petitioner from time to time, found the petitioner entitled for the same and the petitioner was accordingly made the payments. It was the Competent Authority has revised the pay-scale of the petitioner from time to time, found the petitioner entitled for the same and the petitioner was accordingly made the payments. At the time of retirement when the matter was taken up by the respondent authorities for settlement of terminal dues of the petitioner and when the matter was sent to Treasury Accounts and Pensions section, the wrong fixation has been noted and the excess amount was directed to be recovered from the petitioner on the basis of indemnity bond submitted by the petitioner. There is nothing on record to show that any undertaking was submitted by the petitioner at the time of his pay-fixation. 10. Thus, looking to the settled position of law by the Hon'ble Supreme Court which was subsequently being considered by our Hon'ble High Court in the case of Krishan Kumar Sharma (supra) the recovery effected by the respondent authorities from the terminal dues of the petitioner is found to be unsustainable and the order for the recovery is quashed. Respondents are directed to refund the amount which was duly recovered from the petitioner along with interest of 7.5% from the date when the recovery was made. The aforesaid amount be refunded to the petitioner within a period of three months from the date of passing of this order. Petition is allowed. No order as to costs.