1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER K.N.Mathur Vs. State of Raj. & Ors. S.B.CIVIL WRIT PETITION NO.3694/2006 Date of Order : : 15/10/2008 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Mr.Hemant Dutt, for the petitioner. Mr.Deepak Choudhary, Dy.Govt.Counsel for the respondents. BY THE COURT: By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing of the order Annexure-9 dated 22nd October, 2005 passed by the respondent-Chief Engineer, Irrigation, Rajasthan and also seeks a direction to the respondents to make payment of Rs.30,484/-, which was recovered from his retiral benefit, including interest thereon. I have heard learned counsel for the parties. The petitioner while holding the post of Assistant 2 Engineer, superannuated on attaining the age of superannuation on 31st July, 1991. After having retired from the post, the retiral benefits for which a Government Servant is entitled, were not released to the petitioner and illegally withheld by the respondents and therefore, the petitioner filed a writ petition before this Court being S.B.Civil Writ Petition No.4595/1993, which came to be decided by order dated 20th September, 1993 directing the respondents to decide the case of the petitioner for payment of post retiral benefits including pension, gratuity and other benefits within a period of three months from the date of receipt of the certified copy of that order. Thereafter, the petitioner was given retiral benefit but a sum of Rs.30,484/- was deducted from his pensionary benefits and therefore, the petitioner filed another writ petition being S.B.Civil Writ Petition 2860/2005 before this Court, which came to be decided by order dated 18th May, 2005 directing the petitioner to make a representation to the respondents for redressal of his grievance and the respondents were directed to decide the same. In pursuance thereof, the petitioner submitted a representation before the respondents dated 29th May, 2005 on which the order Annexure-9 dated 22nd October, 2005 came to be passed by the respondents, which is under challenge. 3 The only grievance of the petitioner is that the respondents illegally recovered a sum of Rs.30,484/- by way of adjustment from the retiral benefits and the said recovery is made without affording an opportunity of hearing and therefore, this is against the principles of natural justice. It is contended by learned counsel for the petitioner that no enquiry has been contemplated and even if there is any enquiry then that enquiry cannot be instituted because there had not been a prior sanction of His Excellency the Governor as envisaged under Rule 7 (2) (b) of the Rajasthan Civil Services (Pension) Rules, 1996 (for short “the Rules of 1996” hereinafter). According to learned counsel for the petitioner, Rule 7 of the Rules of 1996 is corresponding to Rule 170 of Rajasthan Service Rules, 1951 (for short “the RSR” hereinafter). This controversy came to be examined by this Court in N.K.Dalal Vs. State of Rajasthan & Ors., 2002(4) WLC (Raj.) 509 wherein this Court held that in a departmental enquiry which is initiated after superannuation without obtaining sanction of the Governor, the charge-sheet issued and punishment imposed cannot be sustained in view of Rule ! 70 proviso (b) of Rajasthan Service Rules, 1951. Similar view was taken by a Division Bench of this Court in Sita Ram Chouhan Vs. The State of Rajasthan, 2002 WLC (Raj.) UC 4 554. Learned counsel for the petitioner also submits that by a circular Annexure-10 dated 26th April, 2001, the Principal Secretary (Finance) has directed to all the concerned that no such recovery be made from the State employees without affording them an opportunity of hearing. A reply to the writ petition has been filed by the respondents. It is contended by learned Deputy Government Counsel appearing for the respondents that while the petitioner going on promotion did not handover the charge of Bajri measuring 234.421 cubic meter and therefore, the recovery was due against the petitioner. The respondents have rightly recovered the amount of Rs.30,484/- from the retiral benefits of the petitioner. The Rule 92 of the Rules of 1996 deals with the recovery and adjustment of Government dues which reads as under: “92. 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 5 payable. (3) The expression “Government dues” includes:- (a) due pertaining to Government accommo- dation including arrears of rent, 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, dues of his office etc.” According to learned counsel for the petitioner, the amount so recovered by way of adjustment from the retiral benefits of the petitioner does not fall within the expression “Government dues” as provided under Rule 92 of the Rules of 1996. On careful perusal of the material available on record, in my view, the respondents fell in error in recovering a sum of Rs.30,484/- from the retiral benefits of the petitioner in violation of the principles of natural justice. Undisputedly, no opportunity of hearing was given to the petitioner before recovering the amount of Rs.30,484/- by way of adjustment from his retiral benefits. As per expression 'Government dues' as envisaged under Rule 92 of the Rules of 1996, such recovery does not fall within the expression “Government dues” and therefore, it cannot be made from the petitioner under Rule 92 of the Rules of 1996. Even otherwise, the order 6 impugned cannot sustain since it is in clear violation of principles of natural justice, at any rate, Bajri cannot be said to have been taken away by the petitioner while going on promotion. In view of the aforesaid discussion, the writ petition is allowed. The order impugned Annexure-9 dated 22nd October, 2005 is set aside and the respondents are directed to pay a sum of Rs.30,484/- which has been recovered from the petitioner by way of adjustment vide order impugned Annexure-9 with interest at the rate of 9% per annum from the date of recovery till the actual payment is made. This exercise be completed within a period of three months from today. There shall be no order as to costs. (H.R.PANWAR), J. NK