IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.4461/2008 Decided on:17.8.2010 _____________________________________________ Smt. Shanti Devi and others. …Petitioners. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioners : Mr. Rakesh Jaswal, Advocate. For the Respondents: Mr. P.M. Negi, Dy. A.G. with Mr. R.P. Singh, Asstt. Advocate General. _____________________________________________________ Rajiv Sharma, Judge (oral). Petitioner’s No.1 husband retired in the year 1996 as Extra Assistant Engineer. It is apparent from the contents of Annexure RA-IV dated 11.8.1995 that a sum of Rs. 52,643.78 could not be reconciled. This amount pertained to the period prior to 1972 when the petitioner’s No.1 husband was working as Junior Engineer under the Block Development Officer, Kandaghat. He was subsequently transferred to B&R Division, Kaffota during December, 1985. A sum of Rs. 52,643.78 was shown to be recoverable from him in his last pay certificate, which was sent to the Division by the Block Development Officer, Kandaghat. Thereafter he was transferred to B&R Division, Paonta Sahib 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 during 1991. Ultimately, out of Rs. 52,643.78, a sum of Rs. 26,230.00 could not be reconciled, as is evident, as per Annexure RA-XI dated 4.4.1997. This amount was directed to be deducted from the amount of DCRG of the husband of petitioner No.1. Neither any notice was issued to the petitioner’s No.1 husband nor any departmental proceedings were initiated nor any civil suit in a court of competent jurisdiction was filed for the recovery of Rs. 26,230-00 before the deduction of this amount from the DCRG of the petitioner’s No.1 husband. The Division Bench of this Court in Kamlesh Saxena and others versus State of H.P. and others, ILR 1985 H.P. 605 has held that the ascertainment and recovery of Government dues, other than those covered by the Pension Rules, have to be done by means of a properly constituted suit in a court of competent jurisdiction, especially when there is a dispute. The Government cannot be a judge in its own cause in the absence of a statutory provision empowering it to act as such and it cannot evade having recourse to the remedy provided by the ordinary law. The Division Bench has further held that before the recoveries are effected from the death-cum-retirement gratuity, the Head of Offices is under a duty to take steps, within one month of the receipt of intimation regarding the death of the Government servant, to ascertain whether such dues were recoverable from the deceased. The Division Bench has further held that reasonable opportunity of hearing coupled with the duty to arrive at a just and fair decision pursuant to an inquiry must, therefore, be regarded as a sine qua 3 non to the exercise of power of recovery of the Government dues from the amount of DCRG payable to the family of the deceased Government servant. The Division Bench has held as under: “14. The next question which must inevitably arise and which must be decided is whether the process of ascertainment of Government dues will require an inquiry being held or conducted by the Head of Office and, if so, what is the true nature and character of such inquiry. On the interpretation of sub-rule (2) of Rule 80-C given above, it is apparent that the Head of Office of the deceased Government servant will, in the first instance have to gather from different sources all the material particulars to satisfy himself whether any sum(s) was factually owed by the deceased to the Government and, if so, what precisely was such amount(s). It will have to be determined next whether the ascertained sum(s) was legally due and recoverable from the deceased Government servant. In the very nature of things, several questions of fact and law will ordinarily arise in this process which the Head of Office will have to determine and some sort of an enquiry, suitable to the occasion and appropriate in the circumstances of the case, is thus inevitable on his part in order to arrive at a just, proper and legal decision in the discharge of the duty legally entrusted to him under the law. The association of the family of the deceased Government servant with such an enquiry will be essential either to gather facts or to seek clarifications on issues of fact and law. That apart, the process of ascertainment of Government dues cannot but be regarded as quasi-judicial in nature, since the ultimate decision may result in the recovery of such dues from the amount of DCRF and may thus involve civil consequences for the family of the deceased Government servant. The duty to act judicially and to afford a reasonable opportunity of being heard to an authorized representative(s) of the family of the deceased Government servant in the course of the inquiry must, therefore, be regarded as implicit in 4 sub-rule (2) of Rule 80-C. Unless the sub-rule is so understood and enforced, it would be exposed to the vice of unconstitutionality. A reasonable opportunity of hearing coupled with the duty to arrive at a just and fair decision pursuant to an inquiry must, therefore, be regarded as a sine qua non to the exercise of power of recovery of the Government dues from the amount of DCRG payable to the family of the deceased Government servant. 24. The Court cannot part with the case without dealing with the observations made in the ultimate paragraph of the letter dated August 7, 1985 (Annexure-III) which is quoted hereinabove and which records the decision of the first respondent arrived at pursuant to the interim order made by this Court. The Court finds that those observations are based upon a thorough misconception. The ascertainment and recovery of Government dues, other than those covered by the Pension Rules, have to be done by means of a properly constituted suit in a court of competent jurisdiction, especially when there is a dispute. The Government cannot be a judge in its own cause in the absence of a statutory provision empowering it to act as such and it cannot evade having recourse to the remedy provided by the ordinary law on the specious grounds that it will have to engage in “unnecessary litigation.” It is strange to find one of the biggest litigants, namely, the State, so averse to seeking adjudication from a civil court in regard to its dues on the wholly unacceptable ground that to engage in such litigation would be “unnecessary”. It is still more surprising to find it coming forward with an untenable claim that suo motu relief be granted to it in writ jurisdiction for the recovery of the alleged government dues. The writ jurisdiction is not a remedy for the Government to enforce such disputed claims. Merely because Government dues are involved, no privilege of obtaining a “decree” in writ jurisdiction can be claimed by the Government. The analogy of public interest litigation, which is a strategic arm of the legal aid movement intended to bring justice within the reach of those who complain of violation of constitutional or legal rights and who are unable, 5 on account of poverty, ignorance or socially or economically disadvantageous position, to seek redressal of injustice done to them, through the machinery of the hierarchy of courts, has no relevance in this context.” In the instant case, no steps, as envisaged in the judgment quoted hereinabove, have been initiated/taken by the respondent- State. Petitioner’s No.1 husband has suffered civil and evil consequences on account of recovery of Rs. 26,230.00 from the DCRG without any authority of law. Accordingly, the petition is allowed. Respondents are directed to refund a sum of Rs. 26,230.00, deducted from the DCRG of the petitioner’s No.1 husband with interest @ 7% per annum within a period of three weeks from the date of production of certified copy of this judgment by the petitioners. In normal circumstances, the Court ought to have permitted the employer to proceed with the matter in accordance with law by instituting regular inquiry; however, in the instant case since the husband of petitioner No.1 has died in the year 2006, the proceedings are closed. In case the matter, qua family pension, has not been decided till date, the decision shall be taken within the aforesaid period. No costs. (Rajiv Sharma), Judge 17.8.2010 *awasthi*