Research › Search › Judgment

Madhya Pradesh High Court · body

2021 DIGILAW 155 (MP)

Nirmala Chouhan v. State of M. P.

2021-02-15

SUBODH ABHYANKAR

body2021
JUDGMENT : Subodh Abhyankar, J. 1. The petitioner, who is a retired employee, having retired from the post of Subedar, has filed this writ petition under 226 of the Constitution of India, seeking the following reliefs:- (1) It is, therefore, prayed that this Hon'ble Court may pleased to issue appropriate writ, order or direction and the order of recovery (P/3) and (P/7) may kindly be modified and the interest charged on the principal amount may kindly be quashed. (2) That, the interest amount charged in the order of recovery (P/3) may kindly be quashed. (3) That, respondent may kindly be directed to refund the amount charged in head of interest with an interest of 12 percent per annum from the date of recovery. (4) That, any other relief which this Hon'ble Court deem fit may grant to the petitioner. 2. The case of the petitioner is that she was serving in the police department on the post of Subedar and thereafter retired from the service on 31.5.2013. The petitioner was given the benefit of ad-hoc increment of Rs.70/- per month. However, vide orders dated 29.3.2019 (Annexure P/3) and 13.2.2020 (Annexure P/7), the Government has sought to recover the excess amount paid to the petitioner in respect of additional ad-hoc increment of Rs. 70/-. 3. Shri Amit Raj, learned counsel for the petitioner has submitted that so far as the principal amount of ad-hoc increment is concerned, which has been given to the petitioner, she has no objection regarding the recovery of the said amount. However, it is submitted that the respondents are also bent upon to recover the interest amount of the said principal amount which cannot be claimed by the State Government, as the petitioner was not at fault if the excess amount has been paid to her y the respondent. It is further submitted that the principal amount is 8,90,632/-, whereas the interest part of the same is Rs.12,44,993/-. Learned counsel for the petitioner has also relied upon various judgments rendered by the co-ordinate Bench of this Court. He has also specifically referred to a decision rendered by the ordinate bench of this Court vide order dated 13.9.201(sic) passed in Writ Petition No. 826/2017 (Rajendra Bhawsar vs. State of M.P. and others) wherein, in similar circumstances, this Court has held as under:- "6. He has also specifically referred to a decision rendered by the ordinate bench of this Court vide order dated 13.9.201(sic) passed in Writ Petition No. 826/2017 (Rajendra Bhawsar vs. State of M.P. and others) wherein, in similar circumstances, this Court has held as under:- "6. It is true that the respondent may recover the excess amount from the retiral dues after his retirement in certain occasion, but petitioner was not at fault in getting ad-hoc increment of Rs. 70/-. The respondent has recovered the amount paid in excess to the petitioner, but they have wrongly recovered the interest amount. Since the petitioner was not at fault, hence he is not liable to pay the interest, therefore, the respondents are directed to refund the interest amount of Rs. 1,64,990/- to the petitioner within a period of 60 days from the date of production of certified copy of this order." 4. Learned counsel for the petitioner has further submitted that even otherwise, according to Rule 65 of the Madhya Pradesh Civil Services (Pension) Rules, 1976, the amount of interest cannot be recovered from a retired government employee as the said rule refers to recovery and adjustment of retiral dues of the government employee but does not include interest. It is thus submitted that the amount of interest claimed by the respondent/State in the impugned orders is liable to be quashed. 5. To support his contentions, Shri Amit Raj has also relied upon the decision of a co-ordinate Bench of this Court in the case of Ramesh Chandra Gupta vs. State of M.P. and others reported in 2010 (4) M.P.L.J. 345 wherein this Court has held that the State Government cannot recover any amount which is not mentioned in the Rule 65 of the Pension Rules of 1976. 6. On the other hand, learned Panel Lawyer for the respondent/State has also filed the reply and has opposed the prayer. It is submitted that this Court under consideration of the decision of the Larger Bench as in W.A. No. 815/2017 the Division Bench of this Court has referred to the question of excess amount of recovery from the retired employee to the Larger Bench. It is submitted that this Court under consideration of the decision of the Larger Bench as in W.A. No. 815/2017 the Division Bench of this Court has referred to the question of excess amount of recovery from the retired employee to the Larger Bench. Learned counsel has also relied upon the decision rendered by the co-ordinate Bench of this Court passed in W.P. No.11497/2020 (Manohar Joshi vs. Home Department and others) vide order dated 18.8.2020, whereby this Court has also taken into account of the decision rendered in the case of Rajendra Bhavsar (supra) and has held that the aforesaid case is based on equity only as no provisions of law is referred to. 7. On due consideration of the rival submissions and on perusal of the documents placed on record, this Court is of the considered opinion that the petitioner is entitled to the claim that he is not liable to pay the amount of interest to be recovered with the principal amount. At this juncture, it would also be useful to 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 a 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 or house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, overpayment of pay and allowances and arrears of income-tax deductible at source under the Income Tax Act, 1961 (No. 43 of 1961)." 8. In the case of Ramesh Chandra Gupta (supra), this court in para 9 has held as under:- "9. So far as the applicability of Rule 65 of Pension Rules is concerned, the plain language of the rule makes it very clear that 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 over payment of salary or allowance etc. So far as the applicability of Rule 65 of Pension Rules is concerned, the plain language of the rule makes it very clear that 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 over payment of salary or allowance etc. as prescribed in the Explanation appended to Rule 65, but it would not include "Miscellaneous Advance" upon not falling into the category of "dues" therefore, it would be difficulty to stretch the scope of Rule 65 to such unimaginable length and breadth and only for the purpose of searching some source of power for withholding retiral Dues of an employee, no such offence could be permitted to be done with an innocently carved out provision of law, by allowing the State Government to commit such an illegality." 9. So far as the reference of the claim of the excess amount from a retired government employee to a larger Bench is concerned, in W.A. No. 815/2017 (supra) the Division Bench of this Court has formulated the following questions:- (1) Whether the recovery can be ordered to be affected from the pensionary benefits or from the salary in view of an undertaking or indemnity Bond taken by the employer before the grant of benefit of pay refixation. (2) Whether the recovery on account of excess payment to an employee can be made in exercise of power conferred under Rule 65 of M.P. Civil Services Pension Rules, 1976 (3) Whether the undertaking sought at the time of grant of financial benefits on account of refixation of pay is a forced undertaking and thus not enforceable in light of judgment of Supreme Court in (1986) 3 SCC 136 (Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another). (4) Any other question which is raised for decision before the Large Bench or which the Larger Bench considers arising out of the issues canvassed." 10. Apparent from the aforesaid, the question of interest is not referred to the Larger Bench and even if it is assumed that the issue of interest is intrinsic in the aforesaid reference, in that case also, the respondents ought to have stayed their hands till a final order is passed by the larger bench. Apparent from the aforesaid, the question of interest is not referred to the Larger Bench and even if it is assumed that the issue of interest is intrinsic in the aforesaid reference, in that case also, the respondents ought to have stayed their hands till a final order is passed by the larger bench. So far as the decision rendered by the co-ordinate Bench of this Court in the case of Manohar Joshi (supra) is concerned, this Court has not considered the Rule 65 of the Pension Rules, 1976. 11. On the aforementioned analysis of the facts and the circumstances, this Court is of the considered opinion that the amount of interest which is claimed by the State Government cannot be sustained in the eyes of law, thus, the impugned order dated 29.3.2019 (Annexure P/3) in respect of recovery of amount of the interest of Rs.12,44,993/- is hereby quashed. However, the respondents are free to recover the principal amount in accordance with law. Needless to say, if any order is passed by the Full Bench in W.A. No. 815/2017, touching the interest part also, the parties shall be governed by that order only. 12. With the aforesaid, the present writ petition stands disposed of.