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[Cites 21, Cited by 0]

Central Administrative Tribunal - Delhi

Viney Shukla vs M/O Personnel,Public Grievances And ... on 30 April, 2024

                               1
                                                   OA 1011/2016

C-5/item-8


              CENTRAL ADMINISTRATIVE TRIBUNAL
                 PRINCIPAL BENCH, NEW DELHI


                        O.A./1011/2016
                        M.A./1742/2022
                        M.A./3115/2022
                        M.A./1074/2018


                            Order reserved on:02.04.2024
                         Order pronounced on:30.04.2024


             Hon'ble Dr. Chhabilendra Roul, Member (A)


Vinay Shukla through L.R. K.M. Shukla
P-38, Kranti Nagar, Near Jain Mandir,
Bilaspur, Chhattisgarh, PIN-495001              ...Applicant

(Appeared in person)

       VERSUS

1.     Union of India
       Through Secretary,
       Deptt. of Pension & Training,
       North Avenue, New Delhi.

2.     State of Madhya Pradesh,
       Through it's Chief Secretary
       Vallabhawan, Bhopal (M.P.)            ...Respondents

(Through Mr. Vipul Gupta, Mr. Sunny Chaudhary, Mr.
         Rajeev Kr., Ms. Mrigna Shekhar, Advocates)


                        ORDER

Hon'ble Dr. Chhabilendra Roul, Member (A) The present OA has been filed by the applicant seeking the following relief:

2

OA 1011/2016

C-5/item-8 "8.(a) to issue direction to the respondents to calculate and pay retiral benefits to the applicant which has been paid to his immediate junior officer.

(b) to issue direction to the respondents to calculate and pay retiral benefits to the applicant as per law including arrears.

(c) to issue directions to the respondents to continuously pay on month to month basis the pension which will be fixed after proper calculation in accordance with above prayer (a) & (b).

(d) to issue directions to the respondents to pay interest @ 24% to the applicant on the amount of the arrear from the date when the said amount was due till its payment.

(e) the Hon'ble Tribunal may pass any other order/direction as deemed fit and proper in the circumstances of the present case and in the interest of justice."

2. The factual matrix of the case is as follows:

2.1 Applicant was an IAS officer of the 1974 batch and was allotted Madhya Pradesh Cadre. The Union of India passed the Madhya Pradesh Reorganization Act in 2000 and the State was bifurcated into M.P. and Chhattisgarh vide notification dated 1.01.2000. Vide notification dated 31.10.2000 issued by GoI, the applicant was allotted Chhattisgarh cadre. The applicant felt that the allotment was not proper and submitted representation to the respondents to change his allotment to Madhya Pradesh. In anticipation of a favourable outcome of his representation, he did not join the Chhattisgarh cadre. He challenged the said allotment in various judicial forums/Tribunals. 3 OA 1011/2016

C-5/item-8 Ultimately, he won the case and was re-allotted the Madhya Pradesh cadre vide notification dated 24.08.2007 by Government of India. The M.P. Government filed objections before Govt of India for reconsideration of said notification. The Government of India, vide communication dated 27.04.2008 rejected the objection by the M.P. Government. 2.2 In the meanwhile the applicant, who was not allowed to join M.P. Government, filed OA No.518 of 2008 in Jabalpur Bench of CAT and also W.P. (C) No.982/2009 before the High Court at Jabalpur. The coordinated Bench of CAT at Jabalpur decided the case in favour of the applicant. The M.P. High Court upheld the decision of the CAT, Jabalpur. The M.P. Government filed two Writ Petitions 13660/2008 and 15122/2008 against the said decisions. The applicant had also filed Writ Petition No.928/2009 challenging the original notification dated 31.10.2000 vide which he was allotted Chhattisgarh Cadre. The said three Writ Petitions were decided vide order dated 2.04.2009 by the Hon'ble High Court, Jabalpur passing the following order:

"19. A peculiar feature in the present case is that when the order impugned (Annexure P-12 in W.P. No. 15122/2008 (S) was passed, the State of M.P. refused to accept the joining without even challenging the said order. The State being the guardian of its employees and officers should have respected the order passed by the Central Government and if the order passed by the Central Government was not acceptable then they should have challenged the same before appropriate forum. This aspect has already been dealt with by us in the earlier paragraph. In this context the decision 4 OA 1011/2016 C-5/item-8 rendered by the Apex Court in S.I. Rooplal and another Vs. Lt. Governor, through Chief Secretary Delhi and others, AIR 200 SC 594 is relevant. Though the said decision deals with the role of the State Government being an impartial employer with regard to dispute relating to the determination of the seniority, the Apex Court in Para 25 has held as under-
"Before concluding, we are constrained to observe that the role played by the respondents in this litigation is far from satisfactory. In our opinion, after laying down appropriate rules governing the service conditions of its employees, a State should only play the role of an impartial employer in the inter se dispute between its employees. If any such dispute arises, the State should apply the rules laid down by it fairly. Still if the matter is dragged to a judicial forum. State should confine its role to that of an amicus curiae by assisting the judicial forum to arrive at a correct decision. Once a decision is rendered by a judicial forum, thereafter the State should not further involve itself in litigation. The matter thereafter should be left to the parties concerned to agitate further, if they so desire. When a state, after the judicial forum delivers a judgement, filed review petition, appeal etc. it gives an impression that it is espousing the cause of a particular group of employees against another group of its own employees, unless of course there are compelling reasons to resort to such further proceedings. In the instant case, we feel the respondent has taken more than necessary interest which is uncalled for. This act of state has only resulted in waste of time and money of all concerned."

On the basis of aforesaid, it is clear that the State should not have involved itself in the litigation with regard to reallocation of the original applicant particularly when if finding was recorded by the Central Government that the earlier allocation of the original applicant to the State of Chhattisgarh was based upon wrong facts then the observations made by the Apex Court in para 25 would be relevant and apparently it appears that an impression is being created by the State Government that it is espousing the cause of a particular group of employees but may be affected because of the reallocation of the original applicant to the State of Madhya Pradesh.

20. In view of the aforesaid, we concur with the finding arrived at by the Tribunal in its order dated 23.10.2008 and uphold the same. It is observed that the question of delay and laches with regard to entitlement of the applicant for salary and other emoluments shall depend upon the nature of the 5 OA 1011/2016 C-5/item-8 order to be passed by the State Government. We also refrain ourselves from passing such orders for payment of salary because the Tribunal itself has not addressed itself to the said issue. However, we are inclined to direct the State Government shall pass appropriate orders with regard to payment of salary and other emoluments for the period the original applicant was kept out of job because of wrong allocation, within a period of three months from the date the State Government obtains the copy of this order. In case, any adverse order is passed by the State Government, the original applicant shall have a right to challenge the same in appropriate forum. 2.3 In pursuance to the said order of the High Court, the applicant was allowed to join as Member, Board of Revenue, Madhya Pradesh on 13.04.2009. He attained the age of superannuation on 31.07.2010 and retired from service of the respondents on the same day.

2.4 The State Government of Madhya Pradesh vide order dated 13.11.2015 treated the period of absence of the applicant from 3.11.2000 to 11.09.2007 as compulsory waiting. Similarly, the M.P. Govt. had earlier ordered the period from 12.09.2007 to 21.04.2009 as compulsory waiting period. It implies, the respondent no.2 has treated the period from 3.11.2000 to 21.04.2009 as compulsory waiting. (The applicant re-joined active duty on 13.04.2009). 2.5 The applicant has been paid Rs.15,300/- per month as pension vide order dated 11.04.2012 and he was also paid Rs.16818/-under the Family Welfare Scheme. The payment of other retirement benefits was withheld on account of 6 OA 1011/2016 C-5/item-8 absence of No Objection Certificates in respect of occupation of government accommodation and related issues. 2.6 The respondent No.2 have submitted in their counter affidavit the periods of unauthorized retention of government accommodation by the applicant in paragraph 16 of their counter affidavit which reads as follows:

S.No. Place of occupation The period of occupation
1. Government Circuit House 14.08.1986 to No.1/DXD-1, Char Imly, 08.12.2005 (228 Bhopal months)
2. PWD, New Guest House, 13.09.2007 to Bhopal, Room No.21 21.04.2009 (20 months)
3. Circuit House, Gandhi Road, 19.12.1996 to Gwalior, One Room 20.09.2006 (116 months)
4. Circuit House, Gandhi Road, 21.04.2009 to Gwalior, One Room 01.02.2012 (34 months) 2.7 The respondent No.2 in their counter affidavit have mentioned that as the applicant has not cleared the dues in respect of the aforementioned unauthorized occupation of government accommodation, they were unable to finalize the release of other retirement benefits of the applicant. The respondents, vide their additional reply filed on 2.05.2016, have calculated that the dues payable to the applicant, comes to a total of Rs.82,24,834/-. A copy of the chart prepared by the answering respondent with regard to payable dues to the applicant is annexed and marked as Annexure R-3. As per Annexure R-1 (colly) attached to the 7 OA 1011/2016 C-5/item-8 said additional reply, the respondent no.2 has admitted that the following amounts have not been paid to the applicant: 
S.No.   Item                                  Amount payable to the
                                              applicant
1. Arrears of pension (because of Rs.25,72,466/-

revision of pay scale) from 1.08.2010 to 31.03.2016

2. Gratuity Rs.10,00,000/-

3. Leave encashment Rs.10,39,040/-

4. CGEGIS It has been stated that this is payable by the concerned agency of the Govt. of India

5. GPF It has been stated that this is payable by the concerned agency of the Govt. of India

6. Arrears of pay from 1.12.2000 to Rs.29,75,138/-

21.04.2009 (after requisite deduction)

7. Arrears of pay from 22.04.2009 to Rs.6,37,290/-

        31.07.2010      (after   requisite
        deduction)
        Total                              Rs.82,24,834/-




2.8     Various departments of respondent No.2 had issued

communications/        letters/       notices     dated    7.07.2000,

4.09.2001,       6.02.2002,   10.04.2002,          20.05.2002     and

21.04.2009, requiring the applicant to pay the rents and penal rents for occupation of government accommodation/guest houses beyond the period of official permission. The petitioner did not pay the dues. Copies of such notices are annexed as Annexure R/1 (colly). 8 OA 1011/2016 C-5/item-8 2.9 The respondent No.2 finally issued a notice dated 18.04.2016 (received through his brother) to submit No Dues Certificate (NDC) regarding the recoverable dues amounting to Rs.1,22,89,799/- so that his retirement dues could be settled. The respondents have furnished a detailed statement vide their additional affidavit dated 2.05.2016 (Annexure R/3), containing the details of recoveries payable by the applicant, which are as under:

S.No. Place of occupation The period of Dues (Rs.) occupation
1. Government Circuit 14.08.1986 to 9,78,215 House No.1/DXD-1, 08.12.2005 (231 Char Imly, Bhopal months & 26 days)
2. PWD, New Guest 13.09.2007 to 17,64,830 House, Bhopal, 21.04.2009 (19 Room No.21 months & 9 days)
3. Circuit House, 19.12.1996 to 64,43,964 Gandhi Road, 20.09.2006 (117 Gwalior, One Room months & 2 days)
4. Circuit House, 21.04.2009 to 31,02,790 Gandhi Road, 01.02.2012 (33 Gwalior, One Room months & 11 days) Total 1,22,89,799 2.10 The applicant claims that he has submitted a representation dated January, 2019 against the recovery notice dated 18.04.2016 issued by the respondents for recovery of Rs.1,22,89,799/- as outstanding rent and penal rent for alleged unauthorized occupation of government accommodation by the applicant. The applicant has also submitted a copy of the representation vide his affidavit dated 12.02.2019, which is a part of the present OA. The 9 OA 1011/2016 C-5/item-8 applicant has disputed the contention of the respondents that he was in unauthorized occupation of various government accommodations for different periods. He has recalculated the penal amount at normal rent which comes to Rs.7,63,700/-. To be specific, in his representation attached to affidavit dated 12.02.2019, the applicant has admitted that:
"On the basis of the aforesaid assessment made by the applicant the total amount payable to the State Government was only Rs.7,63,700/- only and definitely not Rs. 1,22,89,799/- as maliciously assessed by the State Government to harass the applicant."

2.11 The respondents vide their order dated 31.08.2019 attached with the affidavit filed by respondent no.2 dated 9.09.2019, rejected the contention of the applicant in reply to the recovery notice dated 18.04.2016.

3. In the Instant OA Notices were issued to the respondents and they have filed their counter reply, to which the applicant has also filed rejoinder. The respondent No.2 has twice filed additional affidavits in response to the directive issued by the Tribunal. The first is regarding the decision taken in response to the representation submitted by the applicant in response to the recovery notice issued by Respondent no.2 vide notice dated 18.4.2016. The second is relating to whether the applicant was entitled for government accommodation during various periods for 10 OA 1011/2016 C-5/item-8 which the Respondent no.2 has issued notice for rent and penal rent for allegedly unauthorised occupation of government accommodation. The third affidavit by Respondent No.2 pertains to the directive of this Tribunal regarding details of due and drawn statement in respect of salaries of the applicant with effect from 2000. The applicant had also filed counter replies in respect of the additional affidavits.

4. The applicant in his OA and through his averments during arguments has taken the following grounds in support of the relief sought by him.

4.1 The applicant would state that the Respondent No. 2 were/are bent upon to teach the applicant a lesson because he fought for his rights as an Officer of the Indian Administrative Service, and he was successful against the respondents in the legal fight. The state of Madhya Pradesh had initially misled the concerned authorities regarding applicant's home town, which resulted in erroneous allotment of cadre, after the bifurcation of the erstwhile Madhya Pradesh to the present state of Madhya Pradesh and Chhattisgarh. The applicant was wrongly allotted the Chhattisgarh Cadre. He ultimately approached the judicial forums to get his rightful cadre. Based on the judicial pronouncements, Respondent No.1 re-allotted the Madhya 11 OA 1011/2016 C-5/item-8 Pradesh Cadre to the applicant vide notification 24.08.2007. Respondent No.2 did not accept this decision and represented to Respondent No.1 to reconsider the re- allotment, which the latter rejected vide their decision dated 27.04.2008. Despite this, Respondent no.2 did not allow the applicant to join on duty in Madhya Pradesh. Again, the applicant had to knock the appropriate forum and ultimately the applicant was allowed to join in Madhya Pradesh Cadre on 13.04.2009. The applicant had not joined in Chhattisgarh Cadre after the initial reallocation notification dated 31.10.2000 and fought for his rights for nearly 9 years. This is the primary reason for which Respondent No.2 adopted vindictive attitude towards him. All the subsequent actions by Respondent No.2, viz. (i) not giving the applicant proper posting; (ii) initiating action for vacation of government accommodation duly allotted and occupied by the applicant;

(iii) issuing notice for recovery of exorbitant high rents and penal rents for government accommodation amounting to Rs.1,22,89,799/- after the applicant filed the present OA;

(iv) not promoting and giving higher grades to him at appropriate time; and ultimately (v) denying the rightful retirement dues to the applicant are the manifestation of frustration on the part of Respondent No.2 that it could not prevent the applicant rejoining Madhya Pradesh Cadre. 12 OA 1011/2016 C-5/item-8 The applicant drew attention of this Tribunal to the rejoinder filed by him on 2.08.2016, in response to the additional reply filed by Respondent No.2 on 2.05.1016. Particularly, he refers to paragraph 12 of the said affidavit which reads as follows:

"12. The Apex Court has held in many cases that pension is deferred wage and that it is not a bounty and that it as well as the salary and emoluments payable to Civil servant cannot be arbitrarily reduced. Therefore, there is no merit, justice are equity in the various contentions raised in the counter and prayers made by the petitioners in the OA deserve to be allowed. Even according to the Respondent no 2, the petitioner was not a trespasser to begin with and this allotment of the Room was valid, legal and authorized. It was an allotment which was valid at its inception, it does not become unauthorized unless the State government so declares it and notify to the petitioner to this effect. In this case the petitioner was never intimated that on and with effect from any particular date his occupation will be illegal, unauthorized and invalid. Only at the time of settlement of accounts, the respondent no. 2 found itself liable to pay dues of the petitioner which came to a substantial amount, R has for the first time invented this plea so called unauthorized occupation as an after thought and a counterblast."

4.2 The applicant would argue that all the above actions by Respondent No.2 are illegal and irregular, not supported by any statutory backing. All these actions on the part of Respondent No.2 amount to mala fide on their part. All these actions point to the devious way of Respondent No.2 to punish the Applicant for challenging the might of the State of Madhya Pradesh to get his rightful place and dues. 13 OA 1011/2016 C-5/item-8 4.3 The applicant would further argue that the actions of the respondents in withholding the payment of retirement benefits till now, from his date of retirement on 31.07.2010, are not permissible under any statutory provisions and hence, are illegal. There was no disciplinary or criminal case pending against the applicant at the time of his retirement. No order has been passed by the competent authority invoking any clause of the All India Services (Death-cum- Retirement Benefits) Rules, 1958 in withholding the other retirement benefits, apart from granting him provisional pension at a meagre amount of Rs 15,300/ per month vide order dated 11.04.2012.

4.4 The applicant would further argue that Respondent No.2 has illegally shown some outstanding dues like rent and penal rent for occupation of Govt. accommodation and rooms in govt Circuit/Guest Houses at Bhopal and Gwalior. The Respondent No.2 did not issue any appropriate recovery order prior to applicant's retirement on 31.07.2010. It is only after the applicant filed the present OA on 14.03.2016 that the Respondent No.2 issued recovery notice on 18.04.2016. This is an afterthought, and the recovery notice has been issued nearly 6 years after the retirement of the applicant. This notice has been issued with the sole intention of denying the legitimate retirement benefits to the applicant. 14 OA 1011/2016 C-5/item-8 4.5 The applicant would state that the Respondent No. 2 has not only denied the retirement benefits to the applicant but it has also not granted proper scale as has been granted to the immediate juniors to him in service, thereby reducing the quantum of pension receivable by the applicant. In his prayer clause, he has prayed for recalculation of the pension payable to the applicant, after re-fixation of the pay scales and grades as given to his immediate juniors. 4.6 The applicant during his arguments drew attention of this Tribunal to the law settled by the Apex Court in State of Punjab vs Rafiq Masih (White Washer), (2015) 4 SCC 334 wherein it has been held that it is impermissible by law to start recovery after retirement and that too for periods spanning five years prior to the date of issuance of recovery notice. For better appreciation, he drew attention to paragraph 12 of the said judgement which reads as follows:

"12. 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. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarize 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.
15 OA 1011/2016

C-5/item-8

(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."

4.7 In view of the aforesaid reasoning and case law, the applicant avers that the recovery order dated 18.04.2016 is impermissible by law. The respondents are duty bound to release all pending retirement dues to the applicant and pay interest on delayed payment of such benefits.

5. Per contra, the learned counsel for the Respondent no.2 states that the applicant owes significant amount to Respondent no.2 on account of rent and penal rent in respect of his unauthorised occupation of Government accommodation and Guest Houses/ Circuit Houses at Bhopal and Gwalior. The amount outstanding against him is Rs.1,22,89,799/- as per recovery notice dated 18.04.2016. 5.1 The learned counsel for Respondent No.2 states that the gross amount payable to the applicant in respect of arrears of pay and other retirement benefits amounts to Rs.82,24,834/-. The applicant has been given notice to 16 OA 1011/2016 C-5/item-8 clear outstanding dues to the tune of Rs 1,22,89,799/- so that the respondent No. 2 can release the pending dues to the tune of Rs 82,24, 834/-.

5.2 The learned counsel for the Respondent No. 2 states that Respondent No.2 has taken legally permissible steps to recover the outstanding dues on account of unauthorised occupation of Govt. accommodation and Guest houses at Bhopal and Gwalior. She refers to Paragraph 4 to 11 of the additional Reply filed by the Respondent No.2 on 2.05.2016. For convenience, the said Paragraph 6 is reproduced here:

"6. That various letters/notices dated 07.07.2000, 04.09.2001, 06.02.2002, 10.04.2002, 20.05.2002, 21.04.2009 was issued by the concerned departments/competent authorities to the petitioner requiring him to pay the recoverable dues. However, the petitioner did not pay the said amount. Copies of various letters/notices dated are annexed herewith and marked as ANNEUXRE : R/1 (Colly).

5.3 The learned counsel for the Respondent no. 2 drew attention of the Tribunal to Clause 7 of the Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam, 1974, which reads as follows:

"7. Power to require payment of rent or damages in respect of public premises. - (1) Where any person is in arrears of rent payable of any public premises, the competent authority may, by order, require that person to pay the same [within such time and in such instalments] as may be specified in the order.
(2) Where any person is, or has at any time been, in unauthorised occupation of any public premises, the competent authority may, having regard to such principles of assessment of damages, as may be prescribed assess the 17 OA 1011/2016 C-5/item-8 damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order.
(3) No order under sub-section (1) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice, why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the competent authority."

5.4 The learned counsel for Respondent No.2 states that due notice for vacation of unauthorised occupation of Govt. accommodation has been issued to the applicant under clause 7 of the Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam, 1974. She refers to the notices issued 7.07.2000, 4.09.2001, 6.02.2002, 10.04.2002, 20.05.2002 and 21.04.2009 (Annexure R/1 (colly)) attached to additional reply filed by Respondent No.2 on 2.05.2016. Hence, it is wrong on the part of the applicant to state that the respondents have issued the recovery notice only on 18.04.2016 and without any basis.

5.5 The learned counsel for the Respondent No.2 further avers that this Tribunal has no jurisdiction under the Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam, 1974. Hence, it cannot interfere with the orders passed by competent authority as per the statutory provisions under the said Act.

18

OA 1011/2016 C-5/item-8 5.6 The learned counsel for the respondents further avers that as per Rule 19-C of the All India Services (Death-cum- Retirement Benefits) Rules, 1958, unless the No Dues Certificate (NDC) from various government authorities are obtained by the Applicant, the pending retirement benefits cannot be released to the applicant. For better appreciation, she refers to Paragraph 8.6 of the decision of the competent authority dated 31.09.2019 (page 247 of the OA), rejecting the reply and contention of the applicant in response to the recovery notice dated 18.04.2016. Rule 19-C of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 states:

"19-C. Recovery and Adjustments of Government dues:-
(1) It shall be the duty of every retiring member of the service to clear all Government dues before the date of his retirement.
(2) Where a retiring member of the service does not clear the government dues not clear the government dues and such dues are ascertainable: -
(a) An equivalent amount shall be taken from him; or
(b) An equivalent amount shall be deducted from the gratuity and the death-cum-retirement gratuity.

Explanation: For the purpose of this rule, dues which are ascertainable shall include balance of house building or conveyance advance, arrears of rent other charge pertaining to occupation of government accommodation, over payment of pay and allowances and arrears of income-tax deductable at source under the income-tax act 1961 (43 of 1961)"

5.7 The learned counsel for the respondent No. 2 states that the outstanding arrears of rent and penal rent against 19 OA 1011/2016 C-5/item-8 the applicant for unauthorized occupation of govt. accommodation has been calculated as per the provision of Madhyam Pradesh Vishram Bhawan Abhiyog Niyam (Rest House Occupancy Rules), 2001. As per this rule, if a resident resides in the rest house unofficially, then the person will be charged double the rent fixed after one week and four times after four weeks and thereafter 10 times the fixed rate. In view of this, the outstanding dues pertaining to the unauthorzied occupation of Rest House Rooms is as per these Rules and there is no irregularity or illegality in issuing the recovery order dated 18.04.2016. 5.8 In view of the above, the learned counsel for the Respondent No.2 states that the pending retirement benefits of the applicant would be released to him after he clears the outstanding dues pending against him and after he submits the no dues certificate from various authorities.
6. The learned counsel for the Respondent No.1 states that the onus to pay the retirement benefits lies with respondent no.2 and hence, they have nothing to add on their behalf.
7. I have heard the arguments by the applicant and the learned counsels for the respondents carefully and perused the records of the case thoroughly.
20
OA 1011/2016 C-5/item-8 7.1 This is a tragic case involving one member of the Indian Administrative Service and the State Government of Madhya Pradesh, supposed to be representative ideal employer. We need not go into the details of acrimonious allegations levelled by the applicant against Respondent no.2. It is a fact that the Respondent No.2 took nearly 5 years from the date of retirement i.e. from 31.07.2010 to 13.11.2015 to decide how to treat the period of absence by the applicant from 3.11.2000 to 12.04.2009 as the applicant re-joined in Madhya Pradesh Cadre on 13.04.2009. It is also fact that the Respondent no. 2 issued a consolidated notice on 18.04.2016, after the applicant had filed the present OA on 14.03.2016 and after issuance of notice to them in the OA on 15.03.2016. It is also an admitted fact that Respondent No.2 had initiated eviction proceedings under the Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam, 1974 from the residential accommodation, House No.X-D-I Char Imli, Bhopal and vide Order dated 28.06.1999 the competent authority issued eviction of the applicant from the said premises. It has not been brought to our notice that any statutory order has been issued by the competent authority working under the Respondent No.2 regarding imposition of rent and penal rent under the Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam, 1974. The respondents have only referred to various recovery notices issued in 21 OA 1011/2016 C-5/item-8 2000, 2001, 2002 and 2009. In addition to that, the respondent no.2 has issued the consolidated recovery notice on 18.04.2016. In none of these recovery notices, the provisions under the relevant rules/Acts have been invoked, nor the issuing authority had mentioned that he/she is authorised under those Rules/Acts to issue the recovery notices.
7.2 Respondent No.2 also did not categorically clarify whether the applicant was entitled for any government accommodation during the periods for which the applicant was issued notices for recovery of penal rent for occupation of government accommodation/guest houses and whether he was occupying any legitimately allotted government accommodation. The Respondent no.2 also did not categorically clarify whether the applicant was entitled for house rent, in absence of non-allotment of government accommodation as per rules and entitlement for the period when the applicant was in compulsory waiting. 7.3 The actions by the applicant in not regularising his occupation of rest houses/official accommodation at appropriate time, and the actions or counter-actions by the Respondent No.2, can be termed as not appropriate for a Member of the Indian Administrative Service (the applicant) and the Representative, the Ideal Employer i.e. State of 22 OA 1011/2016 C-5/item-8 Madhya Pradesh (Respondent no.2) respectively. Be that as it may, this inference cannot take away the legal rights of either party in respect of the present litigation, i.e. the present OA.
7.4 The Apex Court in catena of judgments has held that pension is like private property and the government cannot deprive the govt. employee of this property without following due procedure when specific statutory provisions allow to the government authorities do so. The Apex Court in State of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Anr in Civil Appeal No. 6770 of 2013 decided on 14 August, 2013 held that :
"7. It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service.....
"The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors.[1971] Supp. S.C.R. 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Anr. V. Iqbal Singh (1976) IILLJ 377SC".

8. It is thus hard earned benefit which accrues to an employee and is in the nature of "property". This right to property cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India.

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       xxxx            xxxx             xxxx            xxxx

12. Right to receive pension was recognized as right to property by the Constitution Bench Judgment of this Court in Deokinandan Prasad vs. State of Bihar; (1971) 2 SCC 330.......... It was held that such a right constitutes "property" and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension.....

"35. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power 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 dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1)of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law".

Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in "property".

14. Article 300 A of the Constitution of India reads as under:

"300A. 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.

15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of aforesaid Article 300A. 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." 24 OA 1011/2016 C-5/item-8 7.5 Now the question arises whether Respondent No.2 has withheld the payment of various retirement benefits, which are like private property, by invoking any statutory provision relevant to the present case and following due procedure under such provision. The respondents have refereed to Rule 19-C of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, stating that the applicant should have cleared the outstanding dues to the government of Madhya Pradesh to get the retirement dues released. But, there is not a single show cause notice by the competent authority to the applicant invoking Rule 19-C of the said Rules. The various notices of recovery of rent and penal rent in respect of alleged unauthorised occupation, that too by various administrative authorities (as back as 2000, 2001, 2002 and 2009), without invoking authority under any statutory Rules/enactments, cannot be termed a formal notice, before retirement or just after retirement of the applicant to withhold payment of the retirement benefits to him. There were no criminal or disciplinary cases pending against the applicant at the time of his retirement nor any disciplinary proceedings initiated against him within stipulated period after his retirement. By merely referring to the aforementioned recovery notices issued in the remote past (except the 2009 one), Respondent no.2 has failed to substantiate that it had withheld the payment of retirement 25 OA 1011/2016 C-5/item-8 benefits, which are like private property, invoking any statutory provision to deprive the constitutional right of the applicant to such private property. The reference to the Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam, 1974, Madhyam Pradesh Vishram Bhawan Abhiyog Niyam (Rest House Occupancy Rules), 2001 and the Rule 19-C of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 are only afterthought after the OA has been filed. No competent authority has passed any speaking order, after giving due opportunity to the applicant, invoking these statutory provisions.

7.6 The matter regarding recovery for dues from a government servant pertaining to wrongful payments or outstanding dues of an employee in relation to the service period and after superannuation has been succinctly discussed by the Apex Court in its judgment in Rafiq Masih (supra) case. This judgment derived its basis from the Directive Principles of the Constitution of India enshrined in Articles 38,39, 39-A,43 and 46. The said judgment states:

"A holistic essence of these Articles mandates the State to ensure adequate means of livelihood by providing for adequate wages so as to ensure appropriate standards of living to the citizens of this country. This extends to the employees, serving or retired, of the State. Hence, any action by the State, as an employer, ordering recovery from an employee would be sustainable as 26 OA 1011/2016 C-5/item-8 long as it is not rendered iniquitous to extent that action of recovery would be more unfair, wrongful, improper, unwarranted than corresponding right of employer to recover."

7.7 The Rafiq Masih judgment has not completely taken away the right of the State to recover any amount from the employee under these circumstances, but it has restricted the scope of non-recovery to specific instances, keeping the basic duty of the State to ensure the bare necessity and standards of livelihood to the employee to maintain dignity of life. These guidelines since then have been accepted as the gold standard for such recovery. Though, this judgment has given a list of circumstances when recovery is impermissible by law, it has left to the scope to add other such circumstances to qualify such gold standard for non- recovery. Paragraphs 8 and 10 of the said judgment say:

"8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. 

       xxxx         xxxx          xxxx          xxxx
                                      27
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"10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law."

7.8 With the above contextual background, the Apex court has laid down specific instances/circumstances when recovery from the employee would be impermissible, which has been reproduced as part of averment by the applicant. 7.9 The principles set in the Rafiq Masih (supra) case has been reiterated by the Apex court in Thomas Daniel Vs. State of Kerala and Ors. in Civil Appeal No. 7115 of 2010 decided on 2nd May 2022.

7.10 Drawing parallel to the ratio of the Rafiq Masih judgement to recoveries pertaining to outstanding dues, the action of recovery by the government authorities should be judged from the angle of ensuring reasonable standard of livelihood to the retired employee. Many a time, employer itself allows or acquiesces the non-recovery of the outstanding dues. In the instant case, though applicant was in service when he was allegedly in unauthorised occupation of Govt. premises for various periods (except for the period of 28 OA 1011/2016 C-5/item-8 non-joining on duty from 2002 to 2009), Respondent no.2 was within their rights to recover the dues (rent and penal rent) from his monthly salary. Even after the applicant joined back in Madhya Pradesh Cadre on 12.04.2009, Respondent no.2 could have recovered the outstanding dues from his monthly salary from April 2009 to July 2010, following due procedure of law. Respondent no.2 did not act during the relevant appropriate time. Respondent No.2 did not take any punitive action against any of the officials working under its jurisdiction for not enforcing the recovery of outstanding dues.

7.11 Question has been raised whether the Rafiq Masih judgment has overruled the provisions in the relevant Rules regarding recovery of Government dues from the government employee. In the instant case, the relevant Rule is Rule 19-C of the All India Services (Death-cum-Retirement Benefits) Rules, 1958. The details have been given in Paragraph No. 3.4 under the submission by the learned counsel for the respondent no.2. The learned counsel for the Respondent no.2, citing the provisions of the said Rules, has argued that the State Government has every right to recover the outstanding dues from the retiring/retired Government Servant from the retirement dues, if the same has not been cleared by the said government servant. Or in the alternative, the government can withhold the payment of 29 OA 1011/2016 C-5/item-8 retirement dues till the government servant clears such dues. In other words, she argues that payment of retirement dues is contingent upon clearing the outstanding recoverable amount from the government servant. 7.12 From a plain reading of Rule 19-C of the said Rules, it is clear that when such dues are ascertainable, and a member of the Service does not clear the government dues, then an equivalent amount shall be deducted from the gratuity and death-cum-retirement gratuity. There are two connotations from the plain reading of the Rule:

(i) The Rule does not say anything regarding deducting from the leave encashment, GPF, CGEGIS, arrears of salary etc. and the provision of such Rule does not automatically extend to other retirement benefits apart from death-cum- retirement Gratuity.
(ii) Principle of natural justice would imply that the competent authority shall issue notice invoking Rule 19-C to the retiring/retired government servant that such amount is outstanding against him and afford him an opportunity to put forth his view or provide clarification/proof if any amount has already been paid.

7.13 Invoking the principles laid down in Rafiq Masih case, it can be fairly stated that the notice for recovery should be prior to the retirement of the government servant or at the time of his retirement. Drawing analogy with the ratio of the 30 OA 1011/2016 C-5/item-8 Rafiq Masih case, a notice of recovery after lapse of considerable time period, irrespective of the rank/grade of the employee is impermissible in law. In the instant case, there was no proper notice invoking Rule 19-C of the said Rules to the applicant at the time of or immediately after his retirement. The formal recovery notice, without invoking Rule 19-C was ultimately issued on 18.04.2016, after the applicant filed the present OA and after 5 years of his retirement. Such recovery, is impermissible by law. Hence, there is no legal sanctity of the notice dated 18.04.2016. 7.14 When Rafiq Masih case stipulated the restrictions, though the above rules/provisions were not expressly discussed, the invocation of Articles 38, 39, 39-A,43,46 under the Directive Principles of Constitution of India and the fact that it has considered the overall mandate of the Apex Court to do "complete justice" under Article 142 of the Constitution, it could be deduced that these statutory/rule position has been implicitly taken into consideration. Hence, unless the Government refers the matter to the Constitutional Bench for further clarification, the ratio of judgment in Rafiq Masih case can be interpreted that it has considered the Rule position under Rule 71 and 72 of the CCS (Pension) Rules, 1972 as well as Rule 19-C of the All India Services (Death-cum-Retirement Benefit) Rules, 1958 and stipulated the instances when it is impermissible in law 31 OA 1011/2016 C-5/item-8 to recover excess amount paid to a government servant or effect recoveries otherwise under the stipulated circumstances.

7.15 The Rafiq Masih (supra) case has expanded few instances as mentioned in Chandi Prasad Uniyal & ors. Vs. State of Uttarakand & ors., Civil Appeal No.5899/2012 and said that in the instances and circumstances mentioned in the said case, it is impermissible in law to recover excess amount paid to the government servant on account of irregular or wrong pay fixation or allowances. The ratio of these can be extended to recoveries of other government dues too.

7.16 Furthermore, the ratio of judgement of the Supreme Court in Union of India and others Vs. N. Murugesan etc. in Civil Appeal Nos.2491-2492 OF 2021 decided on October 07, 2021 is also applicable in the sense that Respondent no.2 has failed to recover the recoverable amount in time and has acquiesced in the non-recovery, giving benefit to the applicant herein on account of delay and laches. This judgement has given a clear exposition regarding the relationship between delay, laches and acquiesces. For better appreciation the relevant portion of the judgment is quoted as below:

"DELAY, LACHES AND ACQUIESCENCE:
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20.The principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions.

However, they have their distinct characters and distinct elements. One can say that delay is the genus to which laches and acquiescence are species. Similarly, laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create non-consideration of 8condonation in certain circumstances. They are bound to be applied by way of practice requiring prudence of the Court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel. The question of prejudice is also an important issue to be taken note of by the Court.

LACHES:

21.The word laches is derived from the French language meaning "remissness and slackness". It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party. It is neglect on the part of a party to do an act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy.
22.Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. As stated, it would also involve acquiescence on the part of the party approaching the Court apart from the change in position in the interregnum. Therefore, it would be unjustifiable for a Court of Equity to confer a remedy to a party who knocks its doors when his acts would indicate a waiver of such a right. By his conduct, he has put the other party in a particular position, and therefore, it would be unreasonable to facilitate a challenge 9before the Court.

Thus, a man responsible for his conduct on equity is not expected to be allowed to avail a remedy.

23.A defence of laches can only be allowed when there is no statutory bar. The question as to whether there exists a clear case of laches on the part of a person seeking a remedy is one of fact and so also that of prejudice. The said principle may not have any application when the existence of fraud is pleaded and proved by the other side. To determine the difference between the concept of laches and acquiescence is that, in a case involving mere laches, the principle of estoppel would apply to all the defences that are available to a party. Therefore, a defendant can succeed on 33 OA 1011/2016 C-5/item-8 the various grounds raised by the plaintiff, while an issue concerned alone would be amenable to acquiescence. ACQUIESCENCE :

24.We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place.

25.As a consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the compliance of the original terms. Hence, what is essential, is the conduct of the parties. We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become laches. Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-to-case basis." 7.17 In the instant case, the Respondent No.2 has acquiesced in not recovering the pending dues from the applicant though they had all the powers to do so while the applicant was in service. Willy-nilly they have acquiesced and given the impression that the amount due from the applicant might not be recovered at all. This is clearly borne out from the fact that the respondents issued recovery notice against non-payment of rent in respect of rest house occupied by the applicant in 1986 to 2002 in the year 2000 followed by notices in 2001 and 2002. Though the applicant was not drawing salary during his compulsory waiting for 34 OA 1011/2016 C-5/item-8 posting, the competent authority did not pass any recovery order declaring that this amount is recoverable from the applicant. They also waited another 7 years to issue the next recovery notice in 2009, after the applicant succeeded to get his cadre reallocated to Madhya Pradesh. Though, the government servant was very much in service, and getting regular salary from 1986 to 2001 and from April 2009 to July 2010, no effort was made to recover any outstanding due from his salary. No notice under relevant statutory rules issued to him on the eve of his retirement or even till passing of 5 years since his retirement. Respondent no. 2 did not initiate any disciplinary action against the applicant under the relevant rules for alleged unauthorized occupation of government accommodation and/or guest houses. The respondents issued the final recovery notice on 18.04.2016, after the applicant filed the present OA. All these facts and circumstances clearly lead us to infer that Respondent No.2 acquiesced in non-recovery of the outstanding dues. Hence, their attempt to recover the dues after lapse of significant time period suffers from delay and laches. Rightly, the applicant argued that the settled law of limitation set in catena of judgments including the judgment in Rafiq Masih and Daniel Thomas is applicable in the instant case. I refrain from going into the calculation of outstanding amount shown as recoverable, applying the twin cannons of 35 OA 1011/2016 C-5/item-8 the right of the government servant to get government accommodation or in the alternative his entitlement to house rent.

7.18 The last but not the least, the facts and circumstances of the present case warrant that the amount shown as recoverable from the applicant is not permissible to be recovered from the applicant. The original applicant died during the pendency of the present OA. As there is no order of recovery from any judicial or statutory body (there are merely executive recovery notices), after the death of the original applicant, the amount recoverable may abate. Even taking a humanitarian view, the respondents should be magnanimous enough to write off the recoverable amount, if any, from the applicant.

7.19 In summary, considering the following, we conclude that the amount shown as recoverable from the applicant is not permissible at this stage:

(i) Applying the ratio of judgment of the Apex court in Rafiq Masih (supra), which has been reiterated in Daniel Thomas (supra) case, it is impermissible on the part of the respondent no.2 to recover outstanding amount from the applicant, when the recovery amount relates to a period well beyond five years prior to his retirement (some recoveries pertain to 1986).
(ii) Following the judgment of the Hon'ble Apex Court in Jitendra Kumar Srivastava (supra) case, treating the retirement benefits as 36 OA 1011/2016 C-5/item-8 private property, the respondents are debarred to deprive the present applicant from enjoying the benefits of gratuity, leave encashment, GPF, CGEGIS, arrears of salary without following any due procedure as per relevant statutory provisions. As we have analysed, no due has been declared as recoverable by the competent authority under any speaking order as per any statutory provision (except issuing some executive communications as back as in 2000, 2001, 2002 and 2009). These executive /official communications cannot substitute for recovery order by a competent authority invoking a particular statutory provision. For example, the President of India, the competent authority has not invoked Rule 19-C for recovery of the amount recoverable from the applicant.
(iii) Applying the persuasive power of the judgment of the Apex Court in N. Murugesan (supra), it can be safely inferred that the respondents have acquiesced in non-recovery of the recoverable dues from the applicant, thereby they suffer from delay and laches to insist on recovery of the same from the applicant now and their insistence that payment of the retirement benefits of the applicant is contingent upon payment of the same is not acceptable.
(iv) Considering the fact that the original applicant has now expired, humanitarian consideration may warrant the Respondent no.2 to wave off such recovery from the applicant.

8. As regards payment of encashment of leave salary, the following is the statutory provision for such payment on retirement of the member of the service. Rule 20 of the All India Services (Leave) Rules, 1965 states:

"20A. Payment of cash equivalent of leave salary in case of retirement or death.--(1) Where a member of the Service retires 37 OA 1011/2016 C-5/item-8 from the service, whether on attaining the age of superannuation under sub-rule(1) of rule 15 or sub-rule(2), (2A) or (3) of rule 16, of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 or dies, the Government shall suo motu sanction to him or his family, as the case may be, cash equivalent of leave salary in respect of both earned leave and half pay leave, if any, standing in his credit on the date on which he ceases to be member of the Service subject to a maximum of 300 days and pay the same in lumpsum as a one time settlement. The cash equivalent shall be equal to the leave salary as admissible for earned leave and /or equal to the leave salary as admissible for half pay leave plus dearness allowance admissible on the leave salary for the first 300 days.
(2) The cash equivalent of leave salary payable to a member of service, under sub-rule(1) shall also include dearness allowance but shall not include any other allowances."

8.1 There is no provision for withholding the payment of leave salary at the time of retirement, unlike Rule 39(3) of the CCS (Leave) Rules, 1972 applicable to members of Central Services. Even in absence of any specific provisions in the All India Services (Leave) Rules, 1965, the provisions of CCS (Leave) Rules, 1972 may apply to members of the AIS. In the instant case, the competent authority has not passed any speaking order that such amount is recoverable from the applicant.

8.2 In view of the above, the respondent no.2 was liable to pay leave encashment to the applicant at the time of his retirement or immediately after such retirement.

9. As regards the payment of accumulated savings of the applicant in respect of GPF and CGEIS, there is no statutory provision in the Provident Fund Act, 1961 and under the 38 OA 1011/2016 C-5/item-8 scheme for CGEIS to withhold payment of such savings to the beneficiary, linking such payment to any outstanding dues, other than that relates to GPF or CGGIS recoverable from the applicant. The averment by the counsel for the respondents that such payments are not made by them is not tenable. They are/were custodians of the records of deductions from the salary of the applicant to these funds/schemes. They, along with the Accountant General, Madhya Pradesh, are jointly responsible to pay the accumulated savings of the applicant at the time of his retirement on 31.07.2010.

10. The applicant has prayed for payment of pending retirement benefits along with interest for delay in payment of such dues. The Apex Court in S.K Dua Vs State of Haryana, Civil Appeal No. 184 of 2008 decided on 9.01.2008 has conclusively held that:

"11. ..... The fact remains that proceedings were finally dropped and all retiral benefits were extended to the appellant. But it also cannot be denied that those benefits were given to the appellant after four years. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well-founded that he would be entitled to interest on such benefits. If there are Statutory Rules occupying the field, the appellant could claim payment of interest relying on such Rules. If there are Administrative Instructions, Guidelines or Norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution..."

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11. In the instant case, the delay for non payment of the salary is on account of the delay on the part of the respondent No.2. Respondent no.2 took 5 years in deciding the period of absence of the applicant from duty as "compulsory waiting for posting." Respondent No.2, for the reasons best known to them, tried to link payment of retirement benefits to allegedly non-recovery of rent for occupation of govt. guest house, which pertain to the period as back as 1986. Respondent no.2 did not issue any statutory Notice to the applicant under Rule 19-C of the All India Services (Death-cum-retirement benefits) Rules, 1958 immediately before or at the time of retirement or immediately after the retirement of the applicant if such recovery was outstanding. For their acquiescence for long period, stretching nearly 30 years, for recoveries pertaining to 1986 onwards, it could have presumed that the respondents were not keen to recover such pending dues. In view of the all these facts and circumstances, the Respondent no.2 is liable to pay interest at applicable GPF rates to the applicant.

12. In view of the above, the following are ordered:

(i) The recovery order dated 18.4.2016 is quashed.
(ii) The respondent no. 2 is directed to pay all pending retirement dues like gratuity, outstanding salary arrears, 40 OA 1011/2016 C-5/item-8 leave encashment along with interest at applicable GPF rates for the period of delay from 3 months after the retirement till date of such payment, to the applicant.
(iii) The Accountant General, Madhya Pradesh and Respondent no.2 are directed to complete the account details in respect of GPF and CGIS immediately and release the accumulated amount to the applicant along with interest at applicable GPF rates for the period of delay from 3 months after the retirement till date of such payment, to the applicant.
(iv) All these payments shall be made to applicant within 8 weeks from the date of receipt of certified copy of this order.
(v) Needless to say, the respondents shall not link such payments to any alleged outstanding recovery, which has been declared impermissible in law, as per analysis and clear finding given above.

13. The OA is allowed in above terms. No order as to costs.

(Dr. Chhabilendra Roul) Member (A) /dkm/