*»1.. IN THE_M,,P. AaiINISTRATIVE TRI BUNAL BENCH. RAIPUB t^K)^^^- O.A.No, 2000 APPLICANT ^; RESPONDENTS Shoakinand S/o Late Shri B.Nand, aged abou-t 60 years Retd. Fores-t Ranger, R/o Praga'ti Nagar Pandari, Raipur^ Tah. & Oi.st.f. Railpur (M.p.). VER3US «• * • (1) State of M.P. through prtricipa.I: Secretary, Forest Dept'b., ; Mantralaya ValJLabh Bbawan i Bhopal. (2) Conservator of Forest RaipuT Ctrcle, Rcll.puT. (3) Qivisional Eorest Offtcer & — Ex-OfficioManagiitg Qirsctbr Bis-trict Tree Co-ORe.Fattve ^ Federatioa. Ltd., Social Forestry Division, Raipur ~ f~- (4) Bivisional Forest Officer, r Narth Raipur Forest Slwtsl.on, Raj.pua?. ' . , •.,..:"'•".•• (5) Oivisl.orial FOT^s-fc Officer, FOpast P»s rtyet i oh,jli.vi sion, Dhaa-tari, Blstt. Bhaa-tart. (6) Ireasuxy Officer, Bistt. TTeasury, Ftaipur. l!li"^ Iffi APPLICATION U/S 19 QF THE ABMINISTRAtlVE TRIBUNAL®AG1?^1985 1. Particylars of fhe._ApRli.Gant. ; Assta'bed in cause title. 2. Particalars ef_the _BeSDondents : As sta-teci in cause -ti-tl&.' :!. '- . lil • " 3. Par'tl.culars o£ the acder aaainst wKtsft'-iaDD.ll.c atiori is made :- • ', ; ; . ; : ..,,^^- ^ ^ ...^ ^,^ (i)^ Order No. : 4663-A (11.) Qate of Order : 5,4.?&^ :.:!...^:.i iiS!3iai y HIGH COURTOF eHHATTISCrARH : BILASPUR SINGLEBENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA.J. Writ Petition (St No.3256/2005 PETITIONER RESPONDENTS Shoukinand, Versus State of Madhya Pradesh (now C.G. and others Appearance: Shri Yogesh Pandey, counsel for the petitioner. ShriAjit Singh, Panel Lawyer for the State/respondents. II i' ..ai^ ORAL-ORDER (Passedon 10.3.2010) 1. This petition has been filed by the petitioner aggrieved by action of the respondents whereby initially an amount of Rs.36,833/- was recovered from the araountof death-cum-retirement gratuity. But, later on, only apartofit i.e Rs.11,497/- was refunded. 2. Facts relevant are that the petitioner, a Forest Ranger, retired upon attaining the age of superannuadon on 31st October, 1997.After completion of necessary formalities with regard to completion of pension case of the petitioner, an order was issued on 31st December, 1997 for payment of gratuity for an amount of Rs.66,636/- vide Annexure A-1. On 'No Dues Certificate' demanded, the Divisional Forest Officer, Production Division- Dhamtari vide his memo dated 20.5.1998 informed the Conservation of Forest, Circle-Raipur that an amount of Rs.35,320/- from the petitioner in respect of his posting in Social Forestry Division and an amount ofRs.1,513/- in respect ofhis posting at North Raipur Division is liable tp be recovered. The said I Ihltir -2- \~''w". memo also stated that in respect of those recoveries an appeal has been preferred before the Conservator of Forest. Vide memo dated 6U1 October , 1998 (Annexure A-3) Conservator of Forest, Raipur, Circle - Raipyr informed the District Treasury Officer that petitioner retired on 31st October, 1997 and relevant No Dues, No Inquiry and No Events Certificates are being forwarded. On the basis of the aforesaid communication and various certificates issued in the ease of petitioner, the District Treasury Officer deducted an amoiint of Rs.36,833/- from the amount of gratuity payable to the petitioner and balance amount was paid as it evident by his memo (Annexure A-4) addressed to the Division Forest Officer. Prior to retirement of the pedtioner, at different point of time, notices were issued in respect of certain recoveries; to be made from the petitioner, details of which have been given in the petition. Vide memo dated 9.12.1997 (Annexure A-5), a total amount of Rs.16,279/- was found recoverable from the petitioner and the petitioner was required to verify and deposit the said amount. Vide notipe dated 30th January, 1996 (Annexure A-6), a recovery of an araount of Rs.8,532/- was proposed and the petitioner was required to show cause. Thereafter, an order was passed imposing a penalty of recovery of Rs.8,532/- with interest @ 18 per cent and withholding of one increment vide order dated 28.5.1996 (Annexure A-7). An appeal was preferred by the petitioner before the Conservator of Forest which has been stated to be still pending. * . 3. Vide memo dated 29.10.1997(Annexure A-9), petitioner was required to deposit an amount of Rs.2642.50/- or Rs.2643 on account of certain articles. Vide another memo dated 29.12.1997 (Annexure A-10), petitioner was required to deposit an amount of Rs.5,053/- on account of certain shortages. Vide andther memo dated 29.12.1997 (Annexure . -3- f5 A-ll), petitioner was required to deposit an amount of Rs.2,832/- towards shortage. 4. Petitioner submitted representations dated 23.3.1998 (AnnexureA-12), 8.6.1998 (Annexure A-13), 6.10.1998 (Annexure A-14), 8.10.1998 (Annexure A-15), 5.1.1998 (Annexure A-16), 15.2.1999 (AnnexedA-17) and 29.10.1999 (Annexure A-18) against successive orders proposing recovery against the petitioner. Thereafter, vide order dated 5.3.1999 (Annexure A-19), recovery ofRs.8,532/- was withdrawn by holding that the petitioner was not responsible. Levy of interest of Rs.1,051/- was also not made. Further, an aniount of Rs.512 was also found not recoverable from the petitioner. Thus total of Rs.11,497/- was ordered to be refunded to the petitioner. Vide order dated 6.1.2000 (Annexure A-20), amount of Rs.11,497/- was finally refunded to the petitioner against the recovery of Rs.36,833/- made froin the araount of gratuity of the petitioner. Petitioner, thereafter again submitted representation for refund of fhe remaining amount alleged to have been unauthorizedely recovered from the gratuity of the petitioner. He made representation to tKe Conservator of Forest on 9.3.1999 (Annexure A- 21) for issuing necessary direction to D.F.0. for refund of the balance amount. Vide Memo dated 14.1.2000 (Annexure A-23) .Conseryator of Forest issued direction to D.F.0. not to make any recovery from gratuity unless the bills were disallowed and formal order was passed after necessary proceedings. 5. Finally, the petitioner approached this Court aggrieved on account of non-refund of the balance ainount. 6. Leamed counsel for the petitioner contended that recoveiy of Rs.36,833/- has been made at his instance out of the amount of gratuity payable to the petitioner after his retu'ement. Though, Fr?:?i' if». -4- subsequently refund of Rs.11,497/- has been made, balance of Rs.25,336/- is liable to be refunded. ContentiQn of learned counsel for the pedtioner is that the order of recoveiy was made without giving any proper opportunity of hearing and without following the procedure prescribed under the law in the matter of imposition of penalty including recovery. He further submits that in respect of the loss/ shortages against which recovery have been made, petitioner was not responsible for the same. 7. Per conta-a, learned counsel for the respondents submits that while the petitioner was continuing in service, various memoranda were issued to the petitioner in respect of certain recoveries to be made because it was found that the petitioner was responsible for those shortages. His further submission is that in so far as recovery of Rs.8,532/- vide order dafed 28.5.1996 (Annexure A-7) is eoncerned, an appeal was preferred by the petitioner before the Conservator of forest. In respect of recoveries made in view ofmemo dated 29.12.1997 (Annexure A-10) 8i 29.12.1997 (Annexure A-ll), it is submitted that those recoveries were ordered, as it was found that the petitioner was responsible for alleged shortages. Representation made by the petitioner against various recoveries were considered and finally vide order dated 5.3.1999 (Annexure A-19), it was found that an amount of Rs. 11,497/- has been recovered in excess out of the earlier order of recovery of Rs.24,811/- and therefore remainmg amount of Rs. 13,314/- was held recoverable. 8. In so far as recovery of Rs.8532/- vide order dated 28.5.1996 is concerned, the same was made after giving a notice an opportunity of hearing and against the said order, petitioner had preferred an appeal and it is stated that the said appeal is pending. 9. I haye heard learned counsel for the parties and perused the record. -5- 10. Even after his retirenient, it appears that the proceedings were continued and the Division Forest Officer passed an order on 5.3.1999 by which out of the recoveries made from the petitioner from dme to time, an amount of Rs.11,497/- was. found to be in excess and was ^- therefore directed to be refunded. 11. In the matter of recovery from a Govt. servant after his retirement, provision has been made under Rule 9 of MP/C.G. Civil Services (Pension) Rules, 1976 (henceforth "the Rule of 1970'}. Rule 9 thereof provides that the Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from pension of the whole or part of any pecuniaiy loss caused to the Govemment if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during fhe periQd of his service, including service rendered upon re-employnient after retirement. '^ • It further provides that the departmental proceedings, if instituted while the Government servant was in service whether before his retirement or dunng his re-employruent, shall, after the retirement of the Government servant, be deemed to be proceedings under Rule 9 of the Ryles of 1976 and shall be continued and concluded by the Authority by which they were commenced, in the manner as if the Govemment servant had continued in service. It has been provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, then that authority shall submit a report regarduig its finding to the Govemor. , In a case where the departmental proceedings have not been instituted while the Government servant was in service whether before -his retirement or during his re-employment, then a different course of ^^.^.^^^. ^s ¥s3 ^ '» Fra<een -6- ^-^; ^Fta-s"^ "!fca»,»ss<s"" action is required to be adopted as stipulated in Rule 9 (2) (b) of the Rules of 1976. 12. In the present case, it is found that the recovery was made from the petitioner after his retirement and from the amount of gratuity which was payable to the petitioner. This could have ..been done only in accordance with the procedure prescribed under Rule 9 of the Rules of 1976. This is so because in view of definition ofpension as contained in Rule 3 (1) (h) of the Rules of 1976 pension includes gratuity. There is nothing in this rule to show that pension has been used in contradiction to gratuity. Therefore, even in respect of proceedings for recovery initiated prior to retirement of the petitioner, though the sarae could have been continued, it was obligatory on the authority to submit a report regarding his finding to the Governor. In respect of recovery proceedings which were initiated after his retirement, they are without jurisdiction, as after retirement those proceedings could be initiated only by the competent authority as prescribed under Rule 9 of fhe Rules of 1976 and not by any other authority. 13. Consequently, the petition is allowed.Reeovery made from the gratuity of the petitioner after his retirement in respect of various memos being memo dated 29.12.1997 (Annexure A-9), 29.12.1997 (Annexure A-10) 8s 29.12.1997 (Annexure A-ll) are hereby set aside. 14. It is made clear that it will be open for the Competent Authority to take appropriate action in accordance wifh the procedure stipulated in Rule 9 oftheRulesofl976. s'^ Sd/- MaxmdraMohanShnvastaya Judge ^y^~y'"