IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.2059 of 2008. Date of Decision: 5th July, 2011. _______________________________________________________ Shri Khajan Chand ....Petitioner. Versus State of H.P. and others … Respondents. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. Nimish Gupta, Advocate. For the respondents : Mr. A.K. Bansal, Additional Advocate General. _________________________________________________________ Surinder Singh, J (Oral). By means of present petition, the petitioner sought mainly the following reliefs: “i) Writ of mandamus be issued against the respondent which is a statutory authority to perform its duty to exercise its discretion according to law and the respondents may kindly be directed to grant gratuity due and admissible to the petitioner alongwith upto date interest @18% from the due date. ii) Writ of certiorari to quash and set aside the order dated 22.8.2007 (Annexure P-4), which is arbitrary and against the principle of natural justice.” 2. The petitioner joined his service in the Forest Department of the State as ‘Forest-Guard’. Later he was promoted to the rank of ‘Block Officer’ and then as Range Officer. He retired from the service on 30.9.2005 on attaining the age of superannuation. 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - 3. After his retirement, vide Office Order No.37/2007- 08 dated 22.8.2007 (Annexure P-4) issued by respondent No.3 D.F.O., an amount of `1,21,347/- was withheld being ‘recoverable amount’ of the time- barred damage reports. According to the petitioner, after his joining the office as Block Officer, Sundla Block, he had sent a communication to respondent No.3- Divisional Forest Officer (DFO), Churah on 28.9.1995 (Annexure P-1), highlighting the shortcomings found in the damage reports (DRs) referred in the captioned subject, as the DRs were either unsigned or time barred, but DFO did not respond, rather to his utter surprise after his retirement, a show cause notice dated 7.7.2006 (Annexure P-2) was received by him that while holding the office of Sundla Block, the petitioner failed to compound the DRs within the limitation period and which have become time-barred due to his negligence. The loss was assessed to the tune of `3,61,025/- and the petitioner was required to submit his reply to the said show cause notice. The petitioner submitted his reply (Annexure P-3) through his Advocate and denied the above allegations and clarified his stand referring to his earlier communication. Thereafter office-order (Annexure P-4) was issued which is under challenge. 4. The respondents in their reply-affidavit contended that the reply to the show cause notice submitted by - 3 - the petitioner was found unsatisfactorily, therefore further action to recover the dues was taken. 5. Shri A.K. Bansal, learned Additional Advocate General argued that the petitioner had failed either to compound the damage reports mentioned in the letter aforesaid within limitation or to file Challan in the competent Court of law against the Offenders which caused loss to the State and the respondents decided to recover only 1/3rd amount under Rule 71 read with sub-rule (2) of Rule 65 of CCS (Pension) Rules. 6. Rule 65 aforesaid reads as under: “65. Authorization of pension and gratuity by the Accounts Officer (1)(a) On receipt of pension papers referred to in Rule 61, the Accounts officer shall apply the requisite checks, record the account enfacement in Part-II of Form 7 and assess the amount of pension and gratuity and issue the pension payment order not later than one month in advance of the date of the retirement of the Government servant if the pension is payable in his circle of accounting unit. (b) If the pension is payable in another circle of accounting unit, the Accounts Officer shall send the pension payment order alongwith a copy of Form 7 and the accounts enfacement to the Accounts Officers of that unit for arranging payment. (2) The amount of gratuity as determined by the Accounts Officer under Clause (a) of sub-rule (1) shall be intimated to the Head of Office with the remarks that the amount of the gratuity may be drawn and disbursed by the Head of Office to the retired Government servant after adjusting the Government dues, if any, referred to in Rule 71. - 4 - (3) The amount of gratuity withheld under sub-rule (5) of Rule 72, shall be adjusted by the Head of Office against the outstanding license fee intimated by the Directorate of Estates and the balance, if any, refunded to the retired Government servant.” 7. Recovery and adjustment of the Government dues are provided under Rule 71 of the aforesaid rules, which can be usefully reproduced as hereunder: “71. Recovery and adjustment of Government dues. (1) It shall be the duty of the Head of Office to ascertain and assess Government dues payable by a Government servant due for retirement. (2) The Government dues as ascertained and assessed by the Head of Office which remain outstanding till the date of retirement of the Government servant, shall be adjusted against the amount of the retirement gratuity becoming payable. (3) The expression ‘Government dues’ includes- (a) dues pertaining to Government accommodation including arrears of licence fee, if any; (b) 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 (43 of 1961).” 8. The harmonious reading of both the Rules aforesaid reveals that to assess and ascertain the government dues is required to be done by the concerned departments when the Government servant is due for retirement. It is only then when any - 5 - such amount fell due as ascertained and assessed by the Head of Office, which shall be adjusted against the amount of retirement gratuity becoming payable. 9. In the instant case, during the service of the petitioner and more particularly when he fell due for retirement, no such amount was ascertained and assessed by the Head of Office. It is only after retirement, the petitioner was slapped with a show cause notice in the year 2006 and the impugned office order dated 22.8.2007 (Annexure P-4) was issued withholding the aforesaid amount from the gratuity as 1/3rd of the total recoverable amount of time-barred damage reports, which is nothing but a penalty without holding any enquiry by the respondents and this amount is not of the nature which fell within the ambit of Rules 65 and 71 aforesaid. Therefore, the Office Order No.37/2007-2008 dated 22.8.2007(Annexure P-4) issued by respondent No.3 is legally unsustainable. As such, it is quashed and set aside. Consequently, the petition is allowed and the petitioner is held entitled to receive the withheld amount of gratuity which shall be released to him within a period of “two” months from the date of receipt of copy of this judgment, failing which it shall carry an interest at the rate of 10% per annum from the date it fell due. 10. Petition stands disposed of in the above terms. - 6 - 11. In view of the disposal of the main petition, all pending application(s), if any, shall stand disposed of. July 5th, 2011. (Surinder Singh), (rc) Judge.