•^,^'3f»flA ,^l.xy&^-'ril IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (S) No.^?G/ of 2007 A .-p .2 J.P. Khantwal, Rtd. Assistant Superintendent C/o H.No. 268, Ward No. 3, Mandi Road, Ashok Nagar, (M.P.) Versus State of Chhattisgarh, Through: The Secretary, Deptt. ofGramodyoga (Handlooms), Mantralaya, D.K.S. Bhawan, Raipur (C.G.) The Director, Directorate of Gramodyoga (Handlooms), Chhattisgarh, Sonakhan Bhawan, Ring Road, Raipur (C.G.) The Deputy Director, District Handlooms Office, Raipur(C.G.) The Joint Director, TreasuryAccounts and Pension, Raipur(C.G.) PETITIONER RESPONDENTS '/? WRilT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION // -'OF INDIA FOR ISSUANCE OF APPROPRiATE DIRECTIONS / ^ {DRDERS 1 WRITIN THE NATURE OF MANDAMUS, CERTIORARI, y PROHIBITION ETC. PETITIONER RESPONDENTS HIGH COURT OF CHHATTISGH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 6801 of 2007 J.P. Khantwal VERSUS State of Chhattisgarh and others. ^- Shri P.K. Bhaduri counsel forthe petitioner. Ms. Sunita Jain PLforthe respondents/State. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA ORDER (10.08.2009) Wrth the consent of the counsel for the parties the matter is heard finally. 2. Grievance of the petitioner is that he retired as Assistant Superintendent from the office of Deputy Director, District Handlooms Office, Raipur (Respondent No.3) on 28.2.2003 after serving the department for about 37 years. After retirement the department had fixed the anticipatory pension of the petitioner as Rs. 2,511 per month. However, to the utter surprise of the petitioner even dated orders of 20.12.2006 (Annexure P-7 and P-8) were served upon him by which his pension was stopped and recovery of Rs. 4,80,667 was ordered. The petitioner has also challenged the order dated 11.5.2006 (Annexure P-9) showing the details of recovery to be made from the petitioner which accordjng to the petitioner has not beenserved on him. 3. Main contention of the counsel for the petitioner is that vkle order dated 18.4.1983 (Annexure P-3) the petitioner was granted exemption from passing Hindi Typing Test and on the same day another order (Annexure P-13) was passed by which the petitioner] was granted pay increment from 1978 to 1983. His further contentlon /7 -z- is that the impugned orders dated 20.12.2006 (Annexure P-7 and P-8) and order dated 1 1.5.2006 (Annexure P-9) have been passed behind the back of the petitioner without giving an opportunity of hearing. His contention is that the benefit of pay increment was granted to the petitloner by virtue of order dated 18.4.1983 and therefore under no circumstance the same can be withdrawn by the authorities concerned. It is submitted that even after issuance of notice the said benefit cannot be withdrawn from the petitioner because he was not at fault at any stage and had earned the said benefit of pay increment by virtue of a legal and valid order dated 18.4.1983.1n support of his submission reiiance has been placed on the decision of the Supreme Court in the matter of Kerala State Road Transport Corporation vs. K.O. Varahese and others reported in (2003) 12 SCC 293 in which it has been held as under: ^- "20. From the aforesaid analysis three thlngs emerge: (i) that pension is neither bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to the statate, if any, holding the ffe/d, (ii) that the pension is not an ex graffa payment but itisa payment for the past serwce rendered; and (ili) it is a social-weffare measure rendering socio-economic jusSce to those who in the heyday of their life ceaselessly toited for employers on an assurance that in the'v ripe old age they would not be lefi in the lurch. It must also be noticed that the quantum of pens/on /s a certain percentage coirelated to the emoluments earlier drawn. Its payment is dependent upon an additional condttion ofimpeccable behaviour even subsequent to retirement. That is, SOTCC the cessation ofthe contractof service andthatit can be reduced or withdrawn as a (Ssciplinary measure. 22. In its strict sense a pension is not a matter of contract, and is not founded on any legal liability, It is a mere bounty or gratuity "springing from the appreciation and conscf'ousness of the sovereign". and It may be given or withheld at the discreeon of the sovereign. tt may be bestowed on such person and on such tennsas the law-making body ofttfe Govemment prescribed, and it is, at the most, an expectancy granted by the law. The term "penson" has been compared and disffnguished -3- from "boms", "compensalion", "profjts", and "retirement paymenf. A penson fund is to be (Sstinguished from an annuity fund derived in part from vduntary contributions uncfer a statutory option to contribute or refrain from contributing. 24. it is to be noted that in certain countries wrongful withholding of pension money has been made a criminal offence and it has been observed in some of the Westem countries that the federal statute making the wrongful withholding of pension money a criminal offence must be strictty construed. The puipose of the statute, it was held, is to protect the pensioner against fi-aud until the unconditlonal payment of the money to him." Further reliance is placed on the decision of the Apex Court in the matter of Sahib Ram vs. State of Harvana and others reported in 1995 SUDD (1) SCC 18 in which it has been held as under: v' "However, it is not on account ofany misrepresentaSon mscfe by the appellant that the benefit of higher pay scafe was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances, the amount paid till date may not be recovered from the appellant." Further reliance has been placed on the decision of this Court in the matter of Vidvadhar Tiwari vs. State of C.G. and others reported in 2006(11 MPHT 105 in which it has been held that for the excess payment if any, made to the petitioner, when he was not at fault and the amount received by him might have been used by adjusting himself accordingly treating the same as his salary. At this stage, direction for recovery of the alleged excess amount from the pensionary benefits of the petitioner wilt not be just and proper. \ 4. On the other hand counsel for the respondents/State submits that befit of granting exemption from passing the Hindi Typing Test was wrongly granted to the petitioner and therefore he is not entitled to derive any benefit from the same. It is submitted that once the basic order granting benefrt to the petttioner is wrong then the <^S-=l€' •%, \ •'Y ^- Government was not liable to give any show cause notice to the petitioner before passing the order impugned and thus according to him the recovery as ordered is strictly in accordance with law. 5. Heard counsel for the parties and perused the material available on record. 6. Perusal of the record reveals that by order dated 18.4.1983 (Annexure P-3) passed by the Directorate of Handlooms, the petitioner was granted exemption from passing the Hindi Typing Test and in pursuance of the said order he was sanctioned the annual pay increment. Thus by no stretch of imagination the petitioner can be said to be at fault and therefore the order directing the recovery of the excess amount paid to the petitioner is not legally permissible. 7. Thus in view of the aforesaid factuat and legal position of the case, this Court is of the considered opinion that the orders impugned (Annexures P-7, P-8 and P-9) suffer from gross illegality and therefore they are liable to be set aside. As a result, the petition is allowed. Orders impugned are hereby set aside. Petitioner shall be entitled for all the consequential benefits. — ' Sd/- - pritinkerDiwakar Judge CfT3