ORDER : 1. This petition under Article 226 of the Constitution of India has been filed by the petitioner seeking for the following reliefs: (i) This Hon'ble Court may kindly be pleased set-aside the order dated 31.07.2014 (Annexure P-1) passed by the respondent No.2 in the interest of justice. (ii) Cost of the proceedings. (iii) Any other relief in the discretion of this Hon'ble Court. 2. Brief facts of the case as projected by the petitioner are that, the petitioner was working in the establishment of respondent No.1 and retired from the post of Assistant Manager (Store) in July, 2013. On account of alleged irregularities and negligence in discharge of duties while the petitioner was posted as Manager, Kisan Rice Mill, Dhamtari, he was placed under suspension and charge sheet & additional charge sheet were served on the petitioner calling upon him to submit his explanation. Being dissatisfied with the explanation offered by the petitioner, a departmental proceeding was initiated against the petitioner after appointing enquiry officer, who after conducting enquiry submitted his report on 22.04.2008. However, despite lapse of sufficient time final decision could not be taken and the petitioner was going to retire shortly, therefore, the petitioner has submitted a representation before the respondent No.1 praying for disposal of the departmental proceedings pending against him at the earliest so that the petitioner will not be any impediment in disbursement of retiral dues of the petitioner. Thereafter, the petitioner submitted reminders dated 13.03.2012 & 29.07.2013 in which the petitioner has stated that till date the enquiry pending against him have not been decided and he is going to retire on 31.07.2013, therefore, as per verdict of the Hon'ble Supreme Court, payment of gratuity & group insurance be made to the petitioner. 3. On 31.07.2014 the respondent No.2 has passed the order impugned and since charge No.3 was found proved against the petitioner, it has been directed that amount of financial loss caused to the respondent No.1 on account of negligence of the petitioner i.e. Rs.9264/- along with interest, be recovered from the dues payable to the petitioner. 3. On 31.07.2014 the respondent No.2 has passed the order impugned and since charge No.3 was found proved against the petitioner, it has been directed that amount of financial loss caused to the respondent No.1 on account of negligence of the petitioner i.e. Rs.9264/- along with interest, be recovered from the dues payable to the petitioner. Since charge No.4(a) has also been found proved against the petitioner, therefore, it has been ordered that since 5,46,266 numbers of jute bags were found short in the physical verification report dated 31.03.2003 in the go-down of Kisan Rice Mill, Dhamtari, therefore, 50% of total loss occasioned to the respondent No.1 be calculated as per the price prevailing at the relevant time and recovered from the retiral dues payable to the petitioner. Further, suspension period of the petitioner has been declared as dies-non and it has been directed that the petitioner will not be entitled for payment of balance amount for the said period. 4. On coming to know about the order dated 31.07.2014, the petitioner has submitted a detail representation dated 25.08.2014 before the respondent No.1 praying for recall of the order dated 31.07.2014. The petitioner has stated that although the petitioner was present on 09.07.2014 for personal hearing but personal hearing could not take place. The petitioner has submitted detailed explanation in respect of the charges for which he has been held guilty, hence this petition. 5. Learned counsel for the petitioner submits that the order impugned is illegal, arbitrary and contrary to the law applicable to the facts and circumstances of the case. The order of recovery from the retiral dues payable to the petitioner amounts to infringement of his statutory right. The order directing recovery from the retiral dues must be correlative to commensurate with the gravity of grave misconduct or irregularity as it offends the right to assistance at the evening of the life of any employee as assured under Article 41 of the Constitution of India. Counsel for the petitioner further submits that under the law any amount cannot be recovered from the retiral dues of the petitioner i.e. gratuity etc., because it is statutory right and the respondent authorities are not empowered to recover any amount as a measure of punishment from the retiral dues after the retirement of any employee. 6. Counsel for the petitioner further submits that under the law any amount cannot be recovered from the retiral dues of the petitioner i.e. gratuity etc., because it is statutory right and the respondent authorities are not empowered to recover any amount as a measure of punishment from the retiral dues after the retirement of any employee. 6. Further, he submits that it is a settled law that if any loss is occasioned to the department on account of lapses of any employee, then the amount can be recovered only from the salary payable to concerned employee and not from his retiral dues. He submits that in the present case the petitioner was not given any opportunity that the amount would be recovered from his retiral dues as a measure of punishment. Thus, the order directing recovery of the amount from the retiral dues payable to the petitioner i.e. gratuity, group insurance etc., is illegal and devoid of jurisdiction and liable to be interfered. The petitioner submits that the petitioner has now retired and only amount, which the petitioner has saved during his entire service career is the amount of gratuity etc. by which the petitioner will manage himself and his family members. The order impugned dated 31.07.2014 (Annexure P-1) suffers from malice in law and it is a malafide exercise of powers. The order impugned has been passed in violation of the principles of natural justice, therefore the same is liable to be set-aside. In support of his contention, counsel for the petitioner placed reliance on the judgments passed by the Hon’ble Supreme Court in the case of “State of Jharkhand and others v. Jitendra Kumar Srivastava and another” reported in (2013) 12 Supreme Court Cases 210 and “D.V. Kapoor v. Union of India and others”, reported in AIR 1990 Supreme Court 1923, as well as the order passed by this Court on 30.11.2015, in WPS No. 1264/2013 (Udho Prasad Sharma v. Chhattisgarh State Civil Supplies Corporation Ltd. and others), order dated 04.05.2022 passed in WPS No. 505/2018 (B.M. Yagik v. State of Chhattisgarh and others) and the order dated 09.02.2021 passed in WPS No. 412/2021 (S.K. Jangde v. State of Chhattisgarh and others), so also the Office Memorandum dated 2nd March, 2016 issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training. 7. 7. Learned counsel appearing for the respondents strongly opposed the submission of the petitioner and submits that this petition is not maintainable in view of the fact that the petitioner without availing alternative and statutory remedy had rushed to this Hon'ble Court. The petitioner was working as an Assistant Manager in Kissan Rice Mill, Dhamtari. During his service tenure, he committed various financial irregularities due to which a charge-sheet was issued to him and in the departmental enquiry, the petitioner was found guilty for the charges framed. At the time of imposition of punishment, the petitioner already stood retired, therefore, in view of Rule 25(A) of C.G. Rajya Sahakari Vipnan Sangh Sewa Niyam 2007, it was directed that the loss suffered by the society be recovered from the retiral dues of the petitioner. No illegally has been caused by the respondent. The respondent has suffered loss and in view of service rules the aforesaid punishment has been imposed. The grounds raised by the petitioner has no merit and the petitioner has an alternative remedy to file appeal, therefore, this petition is liable to be dismissed on this ground alone. In support of his contention, counsel for the respondents placed reliance on the order passed by this Court on 17.08.2016 in WPS No. 3703/2013 (Bhola Prasad Chandrakar v. Chhattisgarh State Co-Operative Marketing Federation Ltd. and others) and other connected matters. 8. I have heard the contentions put forth by learned counsel for the parties and perused the material available on the record. 9. It is not disputed in this case that the petitioner was retired on July, 2013 and it is also not disputed that before retirement he was requested the respondent-Department to conclude the departmental enquiry before his retirement, and after his retirement vide order dated 31.07.2014 (Annexure P/1) punishment was imposed upon the petitioner. 10. The Hon'ble Apex Court in the matter of “Jitendra Kumar Srivastava” (supra) observed in para 16 & 17 as under: “16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in "property". 10. The Hon'ble Apex Court in the matter of “Jitendra Kumar Srivastava” (supra) observed in para 16 & 17 as under: “16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in "property". Article 300-A of the Constitution of India reads as under: "300-A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law." Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced. 17. It hardly needs to be emphasised that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different.” 11. This Court in the matter of “Udho Prasad Sharma” (supra) after observing the order passed in the case of “State of U.P. and others v. Harihar Bholenath”, “Girijan Cooperative Corporation Limied, Andhra Pradesh v. K. Satyanarayana Rao” and “Dev Prakash Tewari v. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others” observed in para 11 & 12 as under: “11. Applying the law laid-down by Their Lordships of the Supreme Court in the aforesaid cases to the factual matrix of the present case, it is quite vivid that CCA Rules are applicable to the petitioner. There is no express provision incorporated in the said Rules authorizing the Corporation to continue the disciplinary proceedings after the authority concerned superannuates from service, as such, there is no enabling provision in the relevant rules (CCA). 12. There is no express provision incorporated in the said Rules authorizing the Corporation to continue the disciplinary proceedings after the authority concerned superannuates from service, as such, there is no enabling provision in the relevant rules (CCA). 12. The inevitable consequence of absence of such enabling provision in the CCA Rules would be that the Corporation is denude of its authority to continue the disciplinary proceedings after the petitioner stood superannuated from Corporation employment on 31.1.2013 and necessary fall out would be that disciplinary proceeding issued vide order dated 14.2.2008 (Annexure P/3) and charge-sheet dated 29.8.2008 (Annexure P/4) deserves to and are hereby quashed.” 12. In the matter of “S.K. Jangde” (supra) this Court observed in para 7 to 9 as under: “7. At this juncture it would be relevant to refer to the judgment of the Hon’ble Supreme Court in the case of “State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc.” reported in 2015 AIR SCW 501. The Hon’ble Supreme Court while deciding the said matter has laid down certain situations under which the recovery is totally impermissible under law. The situations as envisaged in the said judgment are as under : “(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” 8. If we consider the situations, which the Hon’ble Supreme Court has held to be impermissible under law and compare the facts of the present case, it would clearly reflect that the case of the petitioner would squarely fall within the situations as envisaged in the judgment of the Hon’ble Supreme Court in the case of “Rafiq Masih” (supra). 9. If we consider the situations, which the Hon’ble Supreme Court has held to be impermissible under law and compare the facts of the present case, it would clearly reflect that the case of the petitioner would squarely fall within the situations as envisaged in the judgment of the Hon’ble Supreme Court in the case of “Rafiq Masih” (supra). 9. The impugned order of recovery thus on the face of it is not sustainable and same deserves to be and is accordingly set aside/quashed. Respondents are directed to ensure that an amount of Rs. 3,07,928 is refunded back to the petitioner at the earliest within a period of 90 days.” 13. In the matter of “B.M. Yagik” (supra) this Court observed in para 11 & 12 as under: “11. The issue involved in the instant case came up for consideration before this High Court in W.P.(S) No.2199/2013 in the matter of “Badri Prasad Mishra Vs. State of Chhattisgarh & Others” reported in 2015 SCC Online Chh 407 where in Paragraphs 6 to 8 it has been held as follows :- “6. A careful perusal and meaningful reading of sub-rule (1) of Rule 9 of the Rules, 1976 would show that the authority to pass an order for recovery of any pecuniary loss caused to the Government after retirement of Government servant is reserved only to the Governor and no other authority. Proviso to sub-rule (2) (a) of Rule 9 of the Rules, 1976 makes it ample clear 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 and the Governor in accordance with the procedure applicable to the departmental enquiry may pass appropriate order, but the disciplinary authority who has initiated action prior to retirement of Government servant is not entitled to impose penalty. 7. Rule 9 (1) of the Rules, 1976 came up for consideration before a Division Bench of the M.P. High Court in the matter of State of M.P. and others v. R.L. Ogale and others [ 2006 (2) M.P.H.T. 202 (DB)] in which it has been held in paragraph 8 as under:- “8. 7. Rule 9 (1) of the Rules, 1976 came up for consideration before a Division Bench of the M.P. High Court in the matter of State of M.P. and others v. R.L. Ogale and others [ 2006 (2) M.P.H.T. 202 (DB)] in which it has been held in paragraph 8 as under:- “8. A reading of sub- rule (1) of Rule 9, quoted above, shows that the power to pass an order for recovery of any pecuniary loss caused to the Government is reserved only to the Governor and no other Authority. Sub-rule (2) (a) of Rule 9 of the Rules of 1976 however, provides that if departmental proceedings were instituted while the Government servant was in service whether before his retirement or during his re-employment, all such departmental proceedings shall be deemed to be proceedings under Rule 9 of the Rules of 1976, after the final retirement of the Government servant and shall be continued and concluded by the Authority by which they were commenced, in the manner as if the Government servant had continued in service. Hence, if the Conservator of Forest was the Disciplinary Authority in the case of the original respondent and before the retirement of the original respondent from service on 31-8-1985, departmental proceedings have been initiated and charge-sheet has been issued on 22-8-1984 by the Conservator of Forest, the said departmental proceedings are deemed to be proceeding under Rule 9 of the Rules of 1976, even after retirement of the original respondent. The proviso of sub-rule (2) (a) of Rule 9 of the Rules of 1976, however, makes it amply clear that where the departmental proceedings are instituted by the Authority subordinate to the Governor, that Authority shall submit a report regarding its findings to the Governor. In the present case, therefore, the Conservator of Forest having initiated the departmental proceedings, before the retirement of the original respondent, was only entitled to continue and complete the same and submit a report to the Governor regarding his findings in the departmental proceedings, but was not entitled to pass a final order for recovery of the loss of Rs.4,10,071.84 from the original respondent. In our view, therefore, the Tribunal was right in quashing the order dated 1-6-1991 passed by the Conservator of Forest, Khandwa for recovery of Rs.4,10,071.84 from the original respondent after his retirement on 31-8-1985.” 8. In our view, therefore, the Tribunal was right in quashing the order dated 1-6-1991 passed by the Conservator of Forest, Khandwa for recovery of Rs.4,10,071.84 from the original respondent after his retirement on 31-8-1985.” 8. Applying the mandate flowing from the provisions contained in Rule 9 (1) and proviso to sub-rule (2)(a) of Rule 9 of the Rules, 1976, it is held that once the concerned Government servant has retired after initiation of departmental enquiry and departmental proceeding could not be concluded during his service tenure and concerned Government servant has retired from service, the only course available to respondent No.2 was to submit report to the Governor after conclusion of enquiry along with his finding for appropriate order which he has admittedly, not done and straightway has passed order for recovery of Rs.54,255/-which is in teeth of proviso to Rule 9 (1) of the Rules, 1976 and proviso to sub-rule (2) (a) of Rule 9 of the Rules, 1976, therefore, such an order of recovery cannot be sustained.” 12. Given the aforesaid factual matrix of the case as also the legal position as it stands, the impugned Order dated 17.10.2016 (Annexure P-10) having been issued only by the Respondent No.2 and being issued without the permission or the Order passed by the Governor of the State, the same is apparently bad in law, illegal and therefore deserves to be and is accordingly set-aside.” 14. The Government of India, Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training issued office memorandum dated 2nd March, 2016. Para 4 of this memorandum held as under: “4. The Hon'ble Supreme Court while observing that it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement has summarized the following few situations, wherein recoveries by the employers would be impermissible in law:- (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” 15. In the present petition also, it is clear that the petitioner was retired in July, 2013 and before his retirement, he requested to the respondent authorities to conclude his departmental enquiry, but the respondent authorities did not conclude his departmental enquiry before his retirement and after one year imposed the penalty of recovery against the petitioner, which is against the guidelines of Government of India and the order passed by the Hon'ble Apex Court. 16. In the light of aforesaid orders passed by this Court and Hon'ble Apex Court the order passed by the respondent authorities after 10 years of departmental enquiry and after retirement of petitioner, is not sustainable. The impugned order dated 31.07.2014 (Annexure P/1) is therefore set-aside. The respondents are directed to ensure that the entire admissible dues payable to the petitioner is released to him forthwith within a period of 60 days from the date of receipt of the copy of this order, including the arrears of pension and the entire gratuity amount payable to the petitioner. Any amount recovered from the petitioner after his retirement, shall also be refunded to him forthwith. 17. With the aforesaid observations and directions, the present writ petition stands allowed and disposed of.