IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 9205 of 2008 Judgment reserved on: 22.2.2011 Date of decision: 25.2.2011. Shakuntla Devi …..Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. D.K. Khanna, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. Advocate General, for respondent No.1. None for respondent No.2. Kuldip Singh, J. The petitioner has prayed for quashing of office order dated 20.4.2002 Annexure P-2 vide which deduction of Rs.87,220/- ( sic Rs.87,720/-) has been made, out of the amount of Rs.1,71,225/- which was payable to the legal heirs of deceased Gurcharan Singh. The further prayer has been made for a direction to the respondents to pay the entire amount of Rs.1,71,225/- alongwith interest at the rate of 18% per annum w.e.f. 3.8.1996 till payment. 2. The material facts of the case are that petitioner is widow of Gurcharan Singh who had served respondent No.2 as Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… Section Officer. Gurcharan Singh died on 3.8.1996 while in service after rendering about 26 years of service. The petitioner was informed vide letter dated 20.4.2002 that a sum of Rs.87,220-/ has been deducted and petitioner was paid Rs.83,505/- out of total amount of Rs.1,71,225/- which was due to Gurcharan Singh. 3. It has been alleged that no opportunity was given to the petitioner before making any deduction from the dues of her late husband nor any inquiry was held. The respondent No.2 has withheld balance amount illegally in violation of Articles 14,16 and 21 of the Constitution of India. The action of respondents in making deduction from the dues of her late husband is illegal. The deduction made is barred by laches. The respondent No.2 could not make deduction after the death of Gurcharan Singh after so many years. The respondent No.2 had not given any notice to the petitioner before making any deduction. The petitioner is entitled to receive entire amount of Rs.1,71,225/- alongwith 18% interest. 4. The petition has been contested by respondent No.1 by filing reply. It has been stated that husband of the petitioner was not an employee of respondent No.1 nor respondent No.1 has passed any order for making deduction. The petitioner is working as JBT teacher in education department. The respondent No.2 has filed separate reply and pleaded that an amount of Rs.1,71,225/- was advanced to late Gurcharan Singh. This amount was not adjusted by the deceased till he died on 3.8.1996. In these circumstances Board …3… had to withhold an amount of Rs.1,71,225/- from the terminal benefits payable to the legal heirs of deceased employee. After strenuous efforts the Board adjusted an amount of Rs.87,720/-, the remaining amount of Rs.83,505/- has been paid to the legal heirs of deceased. 5. The petitioner vide office order dated 9.1.1997 was informed that the total advance amount of Rs.1,71,225/- was outstanding and unadjusted against late Gurcharan Singh. Therefore, this amount was withheld from the terminal benefits payable to the deceased and the rest of the payment was released to the legal heirs of the deceased. It has been stated that Rs.20,000/- was outstanding against Gurcharan Singh since 2.11.1983. In addition, an amount of Rs.50,000/- from 7.2.1984, Rs.50,000/- from 2.5.1984 and Rs.50,000/- from 2.11.1984 were also outstanding against Gurcharan Singh. Further, an amount of Rs.1025/- on account of Scooter Advance and Rs.200/- on account of some Court cases were also outstanding. Thus, total sum of Rs.1,71,225/- was outstanding as advanced unadjusted against Gurcharan Singh. After untimely death of Gurcharan Singh on 3.8.1996 the Board had to withhold the payment of Rs.1,71,225/- equivalent to the amount outstanding as advance against Gurcharan Singh and rest of the terminal benefits were released to his legal heirs. It was the responsibility of the Gurcharan Singh to get the advance amount of Rs.1,71,225/- adjusted. He had plenty of time at his disposal but he …4… failed to adjust the same. The respondent No.2 has prayed for dismissal of the petition. 6. I have heard Mr. D.K. Khanna, learned counsel for the petitioner and Ms. Ruma Kaushik, learned Addl. Advocate General for respondent No.1. The Rule 3 (1))(h)(ii) of Central Civil Services (Pension) Rules, 1972 ( for short Rules) defines ‘Government dues’ means dues as defined in sub-rule (3) of Rule 71. As per clause (b), sub rule (3) of Rule 71 the expression ‘Government dues’ include dues other than those pertaining to Government accommodation, namely, balance of house building or conveyance or any other advance, overpayment of pay and allowances or leave salary and arrears of income tax deductible at source under the Income Tax Act, 1961. The sub-rule(3) of Rule 73 provides that the dues as assessed under sub-rule (2) including those dues which come to notice subsequently and which remain outstanding till the date of retirement of the Government servant, shall be adjusted against the amount of ‘retirement gratuity’ becoming payable to the Government servant on his retirement. Sub-rule(1) of rule 80-C is of dues pertaining to Government accommodation, sub-rule (2) of Rule 80-C pertains to dues other than those referred to in sub-rule (1) of Rule 80-C and provides that the head of office shall, within one month of the receipt of intimation regarding death of a Government servant, take steps to ascertain if any dues as referred to in Rule 71 excluding the dues pertaining to the allotment of Government accommodation were …5… recoverable from the deceased Government servant. Such ascertainable dues shall be recovered from the amount of ‘death gratuity’ becoming payable to the family of the deceased Government servant. Thus Government dues referred to in rule 1971 are recoverable from the death gratuity after ascertaining amount under sub-rule (2) of Rule 80 (C). 7. In Kamlesh Saxena and others vs. State of H.P. and others ILR (HP) 1985 (605) the petitioner had instituted the petition seeking the relief in the nature of a writ, order, direction to the respondents to release the DCRG amount due and payable to them as the legal representatives of the deceased and not to effect any recovery from the family pension/DCRG amount on account of the alleged over payment of pay and allowances and the alleged shortages in store/stock in charge of the deceased at the time of his death. After noticing sub-rule (2)of Rule 80 (C), the Division Bench has held as follows:- “On a bare reading of the sub-rule, it is apparent that what can be recovered thereunder from the amount of DCRG becoming payable to the family of a deceased Government servant are ascertainable Government dues ( other than those pertaining to the allotment of Government accommodation). However, before such recovery can be effected, the Head of Office is under a duty to take steps, within one month of the receipt of intimation regarding the death of the Government servant, to ascertain whether such dues were recoverable from the deceased. Even assuming that the expression “Government dues” takes in all kinds of dues on the footing that the definition thereof being inclusive in nature is extensive in character, the Head of Office must find that the sum sought to be recovered in a given case satisfies the character of dues and that such dues are ascertainable and were recoverable from the deceased Government servant.” …6… The Division Bench continued and held as follows:- “The next question which must inevitably arise and which must be decided is whether the process of ascertainment of Government dues will require an inquiry being held or conducted by the Head of Office and, if so, what is the true nature and character of such inquiry. On the interpretation of sub-rule (2) of Rule 80-C given above, it is apparent that the Head of Office of the deceased Government servant will, in the first instance have to gather from different sources all the material particulars to satisfy himself whether any sum(s) was factually owed by the deceased to the Government and, if so, what precisely was such amount(s). It will have to be determined next whether the ascertained sum(s) was legally due and recoverable from the deceased Government servant. In the very nature of things, several questions of fact and law will ordinarily arise in this process which the Head of Office will have to determine and some sort of an enquiry, suitable to the occasion and appropriate in the circumstances of the case, is thus inevitable on his part in order to arrive at a just, proper and legal decision in the discharge of the duty legally entrusted to him under the law. The association of the family of the deceased Government servant with such an enquiry will be essential either to gather facts or to seek clarifications on issues of fact and law. That apart, the process of ascertainment of Government dues cannot but be regarded as quasi-judicial in nature, since, the ultimate decision may result in the recovery of such dues from the amount of DCRG and may thus involve civil consequences for the family of the deceased Government servant. The duty to act judicially and to afford a reasonable opportunity of being heard to an authorized representative(s) of the family of the deceased Government servant in the course of the inquiry must, therefore, be regarded as implicit in sub-rule (2) of Rule 80-C. Unless the sub-rule is so understood and enforced, it would be exposed to the vice of unconstitutionality. A reasonable opportunity of hearing coupled with the duty to arrive at a just and fair decision pursuant to an inquiry must, therefore, as a sine qua non to the exercise of power of recovery of the Government dues from the amount of DCRG payable to the family of the deceased Government servant.” 8. The petitioner in para -4 of the petition has specifically pleaded that no opportunity was given to the petitioner before making …7… any deduction from the dues of her late husband, nor any inquiry was held. The respondent No.2 in reply to para-4 has pleaded “requires no reply”. In these circumstances, it can be safely concluded that respondent No.2 did not issue any notice to the legal heirs of deceased Gurcharan Singh before deducting an amount of Rs.87,720/- from the dues payable to his legal heirs nor the dues which were payable by deceased were ascertained in terms of sub rule (2) of Rule 80-C. The respondent No.2 has thus erred in deducting Rs.87,720/- from the dues which were payable to the legal heirs of deceased Gurcharan Singh, hence deduction of amount of Rs.87,720/- out of amount of Rs.1,71,225/- which was payable to the legal heirs of deceased Gurcharan Singh after his death by respondent No.2 is not sustainable. 9. In view of above discussion, the petition is allowed, deduction of Rs.87,720/- out of amount of Rs.1,71,225/- from the dues payable to the legal heirs of Gurcharan Singh after his death by respondent No.2 is quashed. The matter is remitted to the respondent No.2 Board to ascertain the amount which was due and payable by deceased Gurcharan Singh to the Board after notice to the petitioner within three months from the date of supply of copy of the judgment by petitioner to respondent No.2 within one month, the Board thereafter shall release due and payable amount, if any, to the legal heirs of deceased Gurcharan Singh in further one month. In case due amount payable to Board is not ascertained by the Board in …8… three months as directed above, then the inquiry for ascertaining the amount shall be deemed to have been closed after three months and immediately thereafter the Board shall release the balance due and payable amount to the legal heirs of the deceased Gurcharan Singh in two weeks, failing which, Board shall pay 9% interest on such amount till actual payment. Petition stands disposed of on above terms, so also the pending applications, if any. February 25, 2011 ( Kuldip Singh ), (sks) Judge.