IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.4495 of 2008 (OA No.1473/1997) Judgment reserved on : 2.7.2009 Date of decision : 3.7. 2009. M.L.Khurana …Petitioner. Versus State of H.P. & Others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Ms. Salochna Kaundal, Advocate vice Mr. O.P.Thakur, Advocate. For Respondent No.1 : Mr. R.K.Sharma, Sr. Addl. A.G. with Mr. A.K.Bansal, Addl.A.G. and Mr. R.P.Singh, Asstt. A.G. For Rrespondent No. 2. : Mr. Dilip Sharma, Advocate. Kuldip Chand, Judge The petitioner through this petition has prayed for quashing of communication dated 31.5.1996, Annexure A-4 of Director of Horticulture, Himachal Pradesh stating therein that an amount of Rs.15,535/- was deducted from DCRG of the petitioner as the said amount was over paid to him. It was further observed that the amount has been recovered under Rule 71 (2) of the CCS (Pension) Rules, 1972 (for short ‘Rules’) from the gratuity of the 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 petitioner. A prayer for a direction to pay forthwith Rs.15,535/- with 18% interest has also been made. 2. The grievance of the petitioner is that he was working as Assistant Project Officer (Mushroom) in the Horticulture Department, his services were placed at the disposal of respondent No.2 as Mushroom Development Officer on deputation basis for a period of two years vide order dated 18.6.1985. The respondent No.2 vide letter dated 23.7.1985, Annexure A-1 had clarified that the accommodation could be provided to an employee at the Corporation cost by deducting 10% from the salary or in the alternative, the employee was entitled for H.R.A. as per Rules. No commitment can be made for any amount of rent before hand. 3. The petitioner has pleaded that he was given commitment by respondent No.2 to give him payment of rent of his house after deducting 10% from the salary.The claim of the petitioner for house rent was not settled by respondent No.2, therefore, petitioner vide letter dated 29.8.1987, Annexure A-2 submitted his bill of house rent for an amount of Rs.19,425/- (sic,19445) and also stated that an advance of Rs.16,500/- had been obtained by the petitioner from respondent No.2 which could be settled against the house rent bill. The deputation of the petitioner lasted for about 11 months only and the petitioner was repatriated to his parent Department. The claim of the petitioner for house rent for the period of deputation when he occupied his own house at Chambaghat was not settled by respondent No.2 and the bill for an amount of Rs19,445 of the petitioner remained unpaid.The petitioner has retired from service on 31.5.1995 and because of non-settlement of 3 pending claim of petitioner for house rent with respondent No.2, an amount of Rs.15,535/- was deducted from the payment of DCRG of the petitioner. The deduction of Rs.15,535/- from the gratuity of the petitioner is wrong and illegal. 4. The respondent No.2 has filed the reply and took objections of delay and laches. It was pleaded that the petitioner during the period of his deputation had drawn an excess amount of Rs.17,108.90 over and above the actual salary claim. The petitioner in his letter dated 28.5.1986, Annexure R-1 had submitted that a sum of Rs. 14,275/- was outstanding against him. The petitioner during the period of deputation, drew his salary from the Horticulture Department directly including the house rent allowance admissible as per rules without adjustment of the advances and amounts drawn by him while in service with respondent No.2 5. Heard and perused the record. 6. The dispute is with respect to deduction of Rs.15,535/- from the gratuity of the petitioner under rule 71 (2). The learned counsel for the petitioner has submitted that rule 73 provides that ‘Government dues’ referred to covers only the dues payable to the Government and does not include dues while on deputation. In other words, the sum due from the officer to an autonomous organization is not ‘Government dues’ and so cannot be recovered out of death-cum-retirement gratuity payable by the Government to the officer, except where the Government servant has given his consent in writing to such a recovery being made from his gratuity which has become payable to him. 4 7. It has been submitted on behalf of respondents No.1 and 2 that during deputation the petitioner was to be paid his salary by the respondent No.2 which was to be reimbursed to respondent No.2 by respondent No.1. Initially the payment was to be made by respondent No.2 which was to be reimbursed by respondent No.1. The petitioner continued to draw salary including house rent from his parent Department during his deputation with respondent No.2, therefore, there was no question of reimbursement of salary by respondent No.1. The petitioner has not denied that he had not drawn Rs.15,535/- from respondent No.2 – Corporation. The question left is only whether this amount can be recovered by respondent No.1 under the rules. 8. The petitioner in letter dated 29.8.1987, Annexure A-2 addressed to Financial Advisor of respondent No.2 – Corporation has stated that he had taken Rs.16,500/- as advance from the Corporation, which may be deducted from his outstanding dues. He has also stated in the letter that he has to pay to the Corporation 10% of his pay towards provision of accommodation to him. This amount may also be adjusted. The petitioner had sent copy of this letter to Director of Horticulture with the request that HPMC may please be asked to settle his dues mentioned above. The petitioner vide letter dated 18.12.1987, Annexure A-3 requested the Director of Horticulture to ask the Corporation to settle the house rent issue. After the settlement if he has to pay some amount, he shall pay to the Corporation within a week. He requested the Director to take up the matter with the Managing Director of the Corporation and settle all the above issues. This indicates that the petitioner had given 5 authority to the Director to settle the house rent issue of the petitioner and, therefore, in view of rule 73, the respondent No.1 is competent to recover Rs.15,535/- mentioned in Annexure A-4. 9. It has been contended on behalf of the petitioner that amount of Rs. 15,535/- is of the period when the petitioner was on deputation with respondent No.2 – Corporation for 11 months in the year 1985, Annexure A-4 was issued on 31.5.1996 and therefore, the deduction of amount of Rs.15,535/- is hit by delay and laches. The petitioner retired from service on 31.5.1995 and till then the dispute raised by the petitioner was not settled. The amount of Rs.15,535/- was deducted shortly after the retirement of the petitioner and Annexure A-4 was issued on 31.5.1996. Hence, it cannot be said that the deduction made by respondent No.1 of Rs.15, 535/- is hit by delay and laches. 10. On facts also it has not been denied on behalf of the petitioner that he had drawn Rs.15,535/- from Corporation on account of house rent. He has also drawn salary and house rent during this period from his parent department. There is no merit in the petition, which is accordingly dismissed. ( Kuldip Singh ), July 3, 2009, Judge. (GR)