Madhya Pradesh High Court
Chandramani Prasad Mishra vs The State Of Madhya Pradesh on 23 February, 2018
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
Writ Petition No.13915/2016 (s)
Chandramani Prasad Mishra
Vs.
The State of Madhya Pradesh & Ors.
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SINGLE BENCH: JUSTICE VIJAY KUMAR SHUKLA
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Shri Rahul Mishra, learned Counsel for the petitioner.
Shri A.K. Singh, Government Advocate for respondent/State.
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Whether approved for reporting ? Yes/No
Whether approved for reporting? Yes
Law laid down Recovery from a retired Government Servant - an
undertaking has to be in respect of the same pay scale
under which benefit is granted to the employee. Rule 65 of
Pension Rules does not permit such recovery from the
retired Government Servant.
Significant paragraph Nos. 5 &8
ORDER
(Jabalpur dated: 23.02.2018) Invoking the jurisdiction under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the recovery orders dated 05.02.2016 and 26.03.2016 passed by the respondent no.4 Executive Engingineer, Upper Purwa Canal Division, Rewa. The petitioner has also prayed for refund of the amount recovered from the gratuity i.e. Rs.2,09,595/- alongwith the interest @ 12% per annum.
2. Brief facts as adumbrated in nutshell are that the petitioner was initially appointed as Lower Division Clerk on 05.07.1979 by the Superintending Engineer, Bansagar Canal Division, Rewa. 2 He joined his duties on 06.07.1979 in the pay-scale of Rs.169- 300 per month with the increments. He retired from his service on attaining the age of superannuation w.e.f. 31.07.2014 from the post of Assistant Grade-II. A P.P.O. was issued by the respondent no.5 Divisional District Pension Officer, Division Rewa. The petitioner passed Hindi Typing Examination w.e.f. 20th September, 1981 and his services were regularized in the pay scale of Rs.169-300 w.e.f. 21.09.1982 alongwith the benefits of the increments. The pay scale of the petitioner was further revised in Rs.515-800 w.e.f. 1981. The same was again re-fixed in the pay scale of Rs.870-1420 w.e.f. 01.01.1986 and fixed Rs.910. The same was further revised to Rs.935 w.e.f. 21.09.1986. The same was also approved and verified by the respondents no.4.
3. The petitioner worked as Assistant Grade-II and retired from the said post w.e.f. 31.07.2014. After the retirement and issuance of the Pension Payment Order (PPO), the respondents found that the petitioner has been paid excess amount of Rs.2,09,595/- for the period 01.04.1981 to 01.07.2014. The respondents recovered the said amount from the gratuity of the petitioner. The respondents passed the impugned orders dated 3 05.02.2016 and 26.03.2016 (Annexure P-4 & P-5)). Earlier the respondents had issued an order of recovery dated 16.03.2015 and directed the petitioner to depositing the same within the period of 3 days but later the same was modified and the amount of Rs. 2,09,595/- has been recovered from the post retiral benefit. The petitioner submitted a representation after the said deduction.
4. Respondents filed the reply and submitted that the petitioner has been paid excess amount due to miscalculation of pay fixation made w.e.f. 01.04.1981 when Madhya Pradesh Pay Revision Rules 1983 had come in to force w.e.f. 01.04.1981. It is further submitted that the petitioner is not entitled to get the benefit of increment as he had not passed the Hindi Typing Examination. It is contended that the petitioner furnished an undertaking on 24.04.1983 that if during the course of pay fixation any excess payment is made, the same would be returned by him, therefore, in view of the undertaking of the petitioner, the said amount has been recovered. Reliance has been placed on the judgment passed by the Apex Court in the case of State of Punjab and Haryana Vs. Jagdev Singh (2016) 14 SCC267.
5. Learned counsel for the petitioner submitted that the 4 undertaking is not in respect of the Pay Revision Rules of 1983 and therefore, the undertaking (Annexure R-1) would not be applicable in the present case. He also submitted that indemnity bond referred by the respondent is not an undertaking. He relied on the judgment passed by the Division Bench of this Court in the case of W.A. No. 584/2016 (State of Madhya Pradesh Vs Devendra Prasad Dwivedi) whereby, the same contention of the counsel for the State was rejected on the ground that the undertaking which was furnished by the employees was not in respect of the same pay fixation which was found to be erroneous therefore, the judgment passed by the Apex Court in the case of Jagdev Singh (Supra) would not apply. He further relied on the judgment passed by the Division Bench of this Court in W.A. No. 649/2016 (State of Madhya Pradesh & Ors. Vs. Akhilesh Kumar Pandey) and submitted that this Court has not accepted the arguments of the counsel for the State regarding the undertaking and the indemnity bond. The Court has held in para - 3 of the order that the indemnity bond is not an undertaking as contemplated by the Apex Court in the Case of Jagdev Singh (Supra). Further the Court had found that the indemnity bond was executed not in respect of the wrong fixation of pay in the pay-scale in question. Para-3 of the orders reads as under:- 5
"3. The case in hand is a case based on a declaration given through an indemnity bond not at the time of revision of pay scale but after retirement. Admittedly in this case, the employee retired in the year, 2013 and re-fixation of pay took place in the year, 2004. It is not a case of the State Government that any undertaking was given by the employee in the matter of recovery in case of wrong pay fixation at that point of time. The indemnity bond (Annexure A-2) now relied upon in this appeal is an indemnity bond given by the employee to the Government of Madhya Pradesh, after his retirement. We find that except for the name and description of the employee in various places in the indemnity bond important columns are left blank. It is a general indemnity bond. Where the employee declares that if any loss occurs to the State Government or in case of over payment of pension etc. the same can be recovered. This indemnity bond does not show as to when and on what circumstances, it has been given, on what date it was signed and other particulars of indemnity bonds are not available. This is not an indemnity bond given by the employee at the time of pay fixation neither is it executed prior to retirement of the employee on 31.10.2013, there is nothing on record to show that this indemnity bond was executed prior to 31.05.2013. This seem to be indemnity bond filled up in a routine manner from every retiring employee as a precaution for settlement of his pensionary claim. Indemnity bond in question is not an undertaking as contemplated by the Supreme Court in the case of Jagdev Singh (Supra). Thereof, the principle of prohibiting recovery as laid down in the case of Jagdev Singh (supra) will not apply to the present case. There is no indemnity bond or undertaking furnished by the employee for recovery at the time of fixation of pay. That being so, the appeal is hereby dismissed. Amount recovered from the respondent be returned back now within two months in accordance with the directions issued by the learned writ court."
6. He further relied on the judgment passed by the Division Bench of this Court in the case of State of M.P. Vs. Chandrashwar Prasad Singh (W.A. No. 1232/2017). The 6 Division Bench relying on the judgment passed by the Apex Court in the case of Central Inland Water Transport Corporation Ltd. And another Vs. Brojo Nath Ganguly and another (1986) 3 SCC 136 held that the undertaking furnished in the case of the low paid employees, cannot be said to be voluntary act as the employee had no option but to give undertaking.
7. Learned Government Advocate for the State further submitted that the even if there is no undertaking, but in view of the Provisions of Rule 65 of Madhya Pradesh Pension Rules, 1976, the respondents can make the recovery.
8. This Court in the case of Vijay Shankar Trivedi Vs. State of M.P. (W.P. No. 2395/2017) had considered the aforesaid submissions in para-16 on wards. The relevant para 16, 17 & 18 of the said judgment are reproduced as under.
"16 Now reverting to question No. 2 whether Rule 65 of the Pension Rules would be applicable to the retired Government employee? In this regard, the stand taken by the State Government is that, it would apply to the retired employee, however, recovery can be made from him. To advert the said contention, the language engrafted in Rule 65 of the Pension Rules is relevant, however, it is reproduced as thus:-
"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.7
(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 the 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 (No. 43 of 1961)."
17. On perusal of the aforesaid, it is clear that sub-rule (1) specifies the dues of "retiring" Government servant while sub-rule (2) deals the deposit or deduction from the gratuity payable to "retiring" Government servant, therefore, Rule 65 deals the contingency casting the duty on the "retiring" Government servant as well as on the Government, it is nothing to do with the "retired" Government servant. It do not postulate the contingency which may be made applicable after retirement of the employee.
18. Learned Government Advocate made an attempt referring Rule 66 (3)(a) of the Pension Rules to contend that the words "retiring employee" would be deemed to be continued even after retirement upto the period of six months. After going through the entire Rule 66, it can safely be held that Rule 66(3)(a), (b) and (c) applies to deal with a situation, after retirement of the Government employee. In case the formalities as specified in Rule 66(1) (a) and (b) and Rule 66 (2)(a), (b) and (c) has been observed by the Government then what would be the validity period of the undertaking and effect of the amount so deposited by such employee for the purpose of recovery of Government dues, if any from him, otherwise as per sub-rule (4), the legal procedure which is permissible under the law can be taken. In view of the foregoing discussion repelling the argument of of learned Government Advocate, the questions posed for answers hereinabove are decided in favour of the petitioner and against the State Government."
9. After having heard learned counsel for the parties and bestowing anxious considerations, I find that the present case is 8 squarely covered by the judgment referred by the learned counsel for the petitioner. In the present case, the undertaking which has been relied upon by the learned Government Advocate for the State (R-1) is in respect of the Pay Revision Rules, 1987 where as the recovery is being sought to be made because of the mistake in calculation in respect of the pay fixation under Pay Revision Rules, 1983. The State Counsel could not bring to the notice of the Court any undertaking in respect of relevant Pay Revision Rules.
10. The contentions raised by learned Government Advocate for the State regarding furnishing of the undertaking, indemnity bond has alredy been rejected by this Court in the case of Devendra Prasad Dwivedi (supra) Akhilesh Prasad Pandey (supra) and Chandeshwar Prasad Singh (supra) by the Division Bench. The contention of learned Government Advocate regarding the recovery being made under Rule 65 of the Pension Rules has also been considered by a co-ordinate Bench in the case of Vijay Shankar Trivedi (supra).
11. From the aforesaid exposition of law, it is clear that the recovery made from the petitioner after his retirement is not sustainable in law. The impugned recovery orders (Annexure P-5 9 & P-6) are quashed. The amount recovered from the petitioner be returned back to him within a period of three months from the date of production of the certified copy of the order.
12. Accordingly the petition is allowed. No order as to costs.
(Vijay Kumar Shukla) Judge Digitally signed by AMITABH RANJAN Date: 2018.02.26 21:40:12 -08'00' Amitabh