IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8721 of 1999 For Approval and Signature: HON'BLE MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- C J THAKKAR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 8721 of 1999 MR BA VAISHNAV for Petitioner No. 1 MR MUKESH R SHAH for Respondent No. 1-3 M/S PATEL ADVOCATES for Respondent No. 1 MRS SR BAROT FOR NANAVATY ADVOCATES for Respondent No. 4 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE H.K.RATHOD Date of decision: 08/10/2003 ORAL JUDGEMENT In the matter of Tarlochan Dev Sharma v. State of Punjab reported in 2001 (6) SCC 260 it has been observed by the Supreme Court as under in para 15 of the judgment. 15. It is interesting to view the present-day bureaucrat-politician relationship scenario: "A bureaucratic apparatus is a means of attaining the goals prescribed by the political leaders at the top. Like Alladin's lamp, it serves the interest of whosoever wields it. Those at the helm of affairs exercise apical dominance by dint of their political legitimacy... The Ministers make strategic decisions. The officers provide trucks, petrol and drivers. They give march orders. The Minister tells them where to go. The officers have to act upon instructions from above without creating a fuss about it." ("Effectiveness of Bureaucracy", The Indian Journal of Public Administration, April-June 2000, at p.165) In the matter of M.S. Grewal v. Deep Chand Sood reported in 2001 (8) SCC 151 it has been observed by the Supreme Court as under in para 27 and 28 of the judgment. 27. The decision of this Court in D.K. Basu v. State of W.B. comes next. This decision has opened up a new vista in the jurisprudence of the country. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits stands extended since Anand, J. (as His Lordship then was) in no uncertain terms observed: (SCC p. 439, para 45) "The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim-civil action for damages is a long-drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family." 28. Currently judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudential system - affectation of the people has been taken note of rather seriously and the judicial concern thus stands on a footing to provide expeditious relief to an individual when needed rather than taking recourse to the old conservative doctrine of the civil court's obligation to award damages. As a matter of fact the decision in D.K. Basu has not only dealt with the issue in a manner apposite to the social need of the country but the learned Judge with his usual felicity of expression firmly established the current trend of "justice-oriented approach". Law courts will lose their efficacy if they cannot possibly respond to the need of the society technicalities there might be many but the justice-oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice. #. Heard learned advcoate Mr.B.A.Vaishnav on behalf of the petitioner and learned AGP Mr.N.D.Gohil for respondents - State Authorities, so also, learned advocate Mrs.S.R.Barot for M/s Nanavaty Advocates on behalf of the respondent No.4. #. The brief facts giving rise to the present petition are as under : The petitioner is a retired employee who has been retired from service with effect from 30th April, 1992 after rendering service for a period of 39 years and 3 months and 17 days. The order of retirement dated 29th April, 1992 is produced on record which is at Annexure-A at page.26, was subject to continuing of departmental inquiry. This order of retirement and continuing the departmental inquiry was passed under Rule 189-A of the Bombay Civil Services Rules ["BCSR" for short ]. It is necessary to mention that the subject matter of the inquiry was pertaining to the charges of the period from 3rd January, 1986 to 18th January, 1988 and penalty of reduction of pension for a period of two years, was imposed by the respondent vide order dated 9th April, 1996 which was challenged by the petitioner by way of Appeal before the Hon'ble Chief Minister. However, learned advocate Mr.Vaishnav has made it clear that this appeal is pending before the Hon'ble Chief Minister. It is case of the petitioner that after his retirement on superannuation, he was reemployed as an Administrator for the period from 16th May, 1992 and 31st October, 1993. Thereafter, the Collector Junagadh on 1st July, 1994 which is at page.31 addressed a letter to the Nagarpalika that pension case of the petitioner has to be finalised by them keeping in mind that the petitioner reemployed till 30th October, 1993 and therefore, his pay during re-employment was to be fixed in accordance with Rule 330 of the BCSR and there was some amount of Rs.65,000/-was to be given by the petitioner and therefore, he could not have drawn the pay and pension for the period from 1st May, 1992 to 30th October, 1993 and therefore, pension could be payable only from 1st November, 1993 and pension case therefore, should be finalised thereafter and be sent to the pension Office. According to the petitioner, pension case therefore was sent by the Director of the Municipalities to the Collector as no one was certain as to who would finalise the case. Ultimately, the Revenue Department has addressed a letter [ see Annexure-D page.38 of petition ] to the Director of Municipalities directing to do the needful in the matter as per the relevant rules and to pay to the petitioner provisional gratuity. Again by communication dated 28th May, 1995 the Revenue Department has taken strong exception to non finalisation of pension case. Thereafter, on 30th April, 1996, the Director of Municipalities opined that it was opined that it was the Collector who had to give benefit of pension and therefore the Collector should do the needful in the matter as it was that office which was competent to do so and accordingly to pay the pensionary benefits to the petitioner. Thereafter, on 30th September, 1996 the Collector addressed communication to the Urban Development and Urban Housing Department that certain audit objections of the year 1992-93 were pending against the petitioner which is at Annexure-H page.48 and the Collector has requested the Urban Development and Urban Housing Department to do the needful in the matter, Thereafter, on 23rd September, 1996 the Collector has passed the order to the effect that the petitioner should have drawn his full pay and salary as per Rule 330 of the BCSR during the period of re-employment and hence, till the question is decided, the petitioner shall be paid the pension as if he retired on 1st November, 1993 and pension fixation will be decided after recovery of Rs.65,000/- as per Annexure-I which is at page.59. Similarly, Veraval and Patan Joint Nagar Palika has issued letter dated 17th September, 1996 to the petitioner that certain recoveries were to be made and only thereafter pension case would be finalised which is at page.62 - Annexure-K. Thereafter, further reply to the representation was received from the Collector by the petitioner that pension can be paid only after recovery of the amounts so purported to be recovered. Thereafter, the Revenue Department wrote a letter on 6th January, 1998 that unless the petitioner is agreed to pay the dues of the Department then only the Department will pay pension and gratuity to the petitioner, otherwise, the Department will pay pension and amount of gratuity to the petitioner as per the order which is produced at Annexure-N at page.71. Thereafter, on 17th march, 1999 the Collector modified the earlier order dated 23rd September, 1996 and stated that provisional pension ought to be paid to the petitioner. Therefore, according to the petitioner, the stand of the Collector and the Nagarpalika is, unless recovery as specified in the audit paras are recovered, no payment for pensionary benefits and gratuity can be made to the petitioner. Learned advocate Mr.Vaishnav submitted that after filing of the petition, the Revenue Department has issued No Due Certificate and No Even Certificate on 27th July, 2000 and thereafter also, retirement benefits are not paid till date to the petitioner. #. On behalf of the respondent No.4, affidavit-in-reply has been filed. The contentions raised by the respondent No.4 that the petitioner has not come with the clean hands and the Nagarpalika is having audit remarks and audit objection which are raised by the Assistant Examiner, Local Fund, Junagadh wherein the petitioner has been shown to have involved in the irregularity namely that he has not deposited house rent of the quarter belonging to Nagarpalika a sum of Rs.13,440/-, for which, the Nagarpalika had already informed on 8.7.1995 by letter No.1128 by the Account Department of the Nagarpalika and that the transactions pertaining to the Audit Year 1992-93 as per the audit year. The respondent No.4 has also raised contention that the petitioner has also entered into an agreement with the contractor and as per the rules of Nagarpalika, 8 % of stamp duty is to be levied from the contractor for the houses situate in the area of Nagarpalika. But instead of that the present petitioner has prepared an agrement on the stamp paper of Rs.10/- only without collecting the proper stamp duty and due to this act of the petitioner, the amount worth Rs.11,110/- towards the amount of stamp duty could not be deposited in the account of State Government and therefore, due to the act of the petitioner, the Government has lost Rs.11,110/- towards the stamp duty. Out of this total amount of Rs.3,483/- was recovered but still the amount of Rs.7,526/- is yet to be required to be recovered. Therefore, according to the respondent No.4, the petitioner was quite negligent in performing his duty. The respondent No.4 further contended that while working as Administrator of the Nagarpalika , at that relevant time, the petitioner was negligent in the recovery of the amount of stamp duty for worth Rs.30,461/- from the contractor and therefore, at the time of audit also the concerned officer has made Audit Note in para-30, that there is less amount deposited worth Rs.30,461/- towards the stamp duty by the petitioner and he is the only person who was responsible for collecting the less amount towards the stamp duty and therefore, it is required to be recovered from the petitioner for the Audit year 1993-94. The respondent No.4 also alleged against the petitioner that the petitioner was not performing his duty in proper and active manner as not giving 24 shops belong to the Nagarpalika which was required to be given on rent and that is how loss worth Rs.57,600/- towards amount of rent for which the Audit Department has made a request to hold that the petitioner should be held personally liable for not giving such shops on rental basis and that is how the petitioner being negligent in performing his duty and Nagarpalika has lost his rent. The respondent No.4 has also pointed out that as per the Audit Note for the year 1993-94, as per the condition No.9 of the Auction, 33 % of the amount is required to be taken by the Nagarpalika as an amount of "Sukhadi" but the present petitioner has taken on his own Rs.1,111/- as transfer fees by passing resolution dated 17.3.1993 vide Resolution No.4143 and transferred the shops which caused financial loss of Rs.2,27,601/- towards the "Sukhadhi". The respondent No.4 has also pointed out that the petitioner had visited the office of the Central Government, New Delhi for the works of Water Supply Department and for that the petitioner had withdrawn a sum of Rs.65,000/- from the Nagarpalika and no account or bill has been produced towards the said amount but subsequently the Nagarpalika has asked to produce all the documents pertaining to the amount but the petitioner could not produce any bill or document of Rs.18,800/- and therefore, said amount on the personal account of the petitioner. The respondent No.4 has also pointed out that it is not clear that the Collector has number of time inquired about that how much amount is yet to be required to be recovered from the petitioner towards his irregularities and therefore, the petitioner was also informed the Collector vide letter dated 5.12.2001 and 20.12.2001 that Nagarpalika is entitled to recover Rs.3,55,518.40 ps from the petitioner and even though the Collector is aware about such fact that the Deputy Secretary, Revenue Department has given no due certificate in favour of the petitioner under which the petitioner is claiming the amount of gratuity and pension, which according to the respondent No.4, nothing but committing further irregularities on the Nagarpalika and it is nothing but encouraging such type of dishonesty by releasing the amount of gratuity and pension under the shelter of No Due Certificate issued by the Deputy Secretary, Revenue Department and therefore, the petitioner is not entitled to get his gratuity and pension as well as the terminal benefits in the facts and circumstances mentioned in the reply of the respondent No.4. It is lastly contended that the Nagarpalika has not withheld the amount of terminal benefits of the petitioner but as the Audit Department has raised an objection in which the petitioner has been found to have involved in some of the irregularities committed by him and due to his negligence, the Nagarpalika has suffered great financial loss, therefore, in this event, the State Government should not have granted No Due Certificate or No Inquiry Certificate dated 27th August, 2000 in favour of the present petitioner without satisfying the query raised by the Nagarpalika, Local Fund, Junagadh for recovering the amount sought to be recovered from the petitioner. Therefore, according to the Nagarpalika, the petitioner is not entitled to any relief as prayed for in the present petition. #. It is necessary to note that this affidavit-in-reply filed by the respondent No.4 who is the Chief Officer Mr.Amrish C. Acharya of Veraval - Patan Joint Nagarpalika. However, considering the contents and the manner in which the reply is drafted criticising the action of the State Government taken at the level of the Deputy Secretary of Revenue Department, it gives impression that the Chief Officer of the Nagarpalika is above the State Government. It impression which could not be ignored at this juncture on perusal of the reply of the respondent No.4 that it is clear intention of the Nagarpalika that by any reason the petitioner should not get his terminal benefits unless the petitioner will satisfy their demands of recovery. This Court fail to understand how this reply has been drafted by the Chief Officer giving answer to the petition against the claim of the petitioner about his terminal benefits. The Chief Officer has challenged the decision and action of the Deputy Secretary of the Revenue Department who has issued no due certificate and no event or inquiry certificate to the petitioner. It may also be noted that the State Government has not filed any reply countering the claim of the petitioner. #. In the present petition, Rule has been issued by this Court on 8th December, 1999, returnable on 29th December, 1999. The prayer made by the petitioner in the present petition in para-2[F], according to the petitioner, it is shown how much amount is entitled after retirement, which is quoted as under : [i] Rs.58,800/- These amounts are due to the petitioner as Pensionary Benefits for the period from 1.5.92 to 31.10.93 for which the period the authorities are refusing to pay pension on the ground that fixation for the said period had yet to be done in accordance with Rule 330 of the BCSR. [ii] Rs.60,000/- As Gratuity Amounts together with interest. [iii] Rs.2,70,000/- Commuted Pension of 15 years from 1.5.1992. [iv] Rs.2040/- Refund of amount of Group Insurance which the petitioner continued to pay even after retirement. [v] Rs.6000/- Leave Travel Concession for the Block of 1992-95. [vi] Rs.2000/- Difference due after payment of Rs.45,144 made on 21.11.1998 as the same is made on the basis of Basic Pay of Rs.3300/- and not Rs.3400/- together with interest for delayed payment. [vii] Rs.5000/- TA for travelling to Home Town on retirement. [viii] Rs.8250/- HRA from 22.1.1991 to 31.10.1993. The petitioner states that even the provisional pension even according to the date they have fixed as 1.11.1993 was deposited with the treasury only on 5.5.1999 i.e. after 6 years. The amount of interest on the said amount of Rs.2,97,239 would be substantial and hence, the petitioner would be entitled interest on the said amount also. The petitioner submits that the total dues would therefore approximately work out to be Rs.3,53,290 or atleast Rs.4 lacs and therefore, withholding of such amounts is illegal and arbitrary and therefore, the action of the withholding pensionary benefits must be deprecated." In view of above calculation, the total amount comes to Rs.3,53,290/- or say atleast Rs.4,00,000/- lakhs which has been withheld by the respondents Nagarpalika for more than 11 years and if re-employment period is calculated, considered and included considering the last date 31st October, 1993, for more than ten years. #. It may be noted at this juncture that pertinent following queries posed to the learned advocate Mrs.S.R.Barot appearing for the respondent No.4 by this Court, [i] Whatever averments made in the reply alleging irregularities committed by the petitioner, which ultimately caused huge financial loss to the Nagarpalika, any chargesheet has been served on the petitioner prior to retirement; [ii] In respect of any of the allegations, whether any departmental inquiry has been initiated against the petitioner for the said so called and alleged irregularities and negligence on the part of the petitioner; and [iii] Whether any show cause notice has been served on the petitioner prior to alleging the charge of negligence or irregularities against the petitioner ? It requires to be recorded that in response to all three queries, learned advocate Mrs.S.R.Barot could not reply any of the question raised by this Court. Therefore, it becomes clear that these are the allegations made by the respondent No.4 in the reply but for that, no steps have been taken by the respondent No.4 till the petitioner has retired from service. From the perusal of the reply filed by the respondent No.4, it transpires that even no show cause notice was served prior to the retirement of the petitioner that Nagarpalika is entitled to recover this amount from the petitioner. Therefore, merely on the basis of the allegation, the respondent No.4 is not entitled to recover any amount from the petitioner unless the respondent No.4 establishes and justify by holding departmental inquiry that the petitioner remained negligence and committed irregularities as alleged, has been found to have been committed by the petitioner. So long that procedure is not followed by the respondent No.4, according to my opinion, the respondent No.4 is not entitled to recover any amount from the terminal benefits of the petitioner. Therefore, decision of the respondent No.4 withholding the amount of terminal benefits, is illegal and contrary to the principles of natural justice. The petitioner is entitled to retirement benefits including the pension and gratuity as well as other service benefits a moment he retired from service. In the present petition, it is made clear by the learned advocate Mr.Vaishnav that except the Appeal filed by the petitioner to the Hon'ble Chief Minister against the order dated 9th April, 1996, wherein, for a period of two years, a reduction of pension has been imposed by the respondents. But that order of reduction in pension is not challenged by the petitioner in the present petition. However, that appeal is pending before the Hon'ble Chief Minister. Therefore, when the petitioner has already retired and prior to retirement, no chargesheet and no show cause notice and no departmental inquiry initiated in respect of alleged misconduct as raised in the reply by the respondent No.4. In above view of the matter, according to my opinion, the respondent No.4 is not entitled to withhold any retirement benefits of the petitioner including the pension and gratuity. #. It is settled law on the aspect that after retirement, the employee is entitled to retirement benefits as a matter of right unless it has been withheld legally by the department as permissible under the law. The concept of the pension has been considered by the Apex Court in case of KERALA STATE ROAD TRANSPORT CORPORATION V. K.O. VARGHESE reported in 2003 Lab.I.C. 2042. The relevant observations made by the Apex Court in aforesaid decision in para-12 and 13 are reproduced as under : "12. Before we deal with their respective contentions, it is necessary to appreciate that concept of pension. There are different classes of pensions and different conditions govern their grant. it is almost in the nature of deferred compensation for services rendered. There is a definition of pension in Article 366 [17] of the Constitution of India, 1950 [ in short the "Constitution"], but the definition is not all pervasive. It is essentially a payment to a person in consideration of past services rendered by him. It is a payment to a person who had rendered services for the employer, when he is almost in the twilight zone of his life. 13. A political society which has goal to set up a welfare State, would introduce and has, in fact, introduced as a welfare measure wherein the retiral benefit is grounded on consideration of State obligation to its citizens who having rendered service during the useful span of life must not be left to penury in their old age. But, the evolving concept of social security is a later day development, and this journey was over a rough terrain. To note only one stage in 1856 a Royal Commission was set up to consider whether changes were necessary in the system established by the operative 1834 Act. The Report of the Commission is known as "Northoote - Trevelyan Report". The Report was pungent in its criticism when it says that : "in civil services comparable to lightness of work and the certainty of provision in case of retirement owing to bodily incapacity, furnish strong inducement to the parents and friends of sickly youth to endeavour to obtain for them employment in the service of the Government, and the extent to which the public are consequently burdened, first with the salaries of officers who are obliged to absent themselves from their duties on account of ill-health, and afterwards with their pensions when they retire on the same plea, would hardly be credited by those who have not had opportunities of observing the operation of the system [ See Gerald Rhodes Public Sector Pensions, pp.18-19 ]." 8. The law on the question is settled that after retirement of employee his terminal benefit including pnesion and gratuity