SBCWP No.1475/2002. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.1475/2002. T.D. Yadav Vs. State of Rajasthan & Ors. Date of order : December 2, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Hemant Sharma for the petitioner. Shri Akhilesh Jain, Deputy Government Counsel. **** BY THE COURT :- Heard learned counsel for the parties. 2) This writ petition has been filed by petitioner T.D. Yadav with the prayer that the orders at Annexures-8, 9 and 10 be quashed and set-aside and the respondents be directed to refund the withheld amount of Rs.10357/- which was deducted from his Gratuity amount with interest from the date of his superannution i.e. 31/5/1999 till its realisation and they may further be directed to pay to him interest on the delayed amount of pension released by the respondents w.e.f. 9/11/2000 (Ann.10) w.e.f. 31/5/1999 till the date, it is realised and they may SBCWP No.1475/2002. 2 further be directed to pay interest on the delayed payment of other retiral dues. Petitioner was serving the respondents on the post of Junior Engineer and he retired on 31/5/1999. 3) Shri Hemant Sharma, learned counsel for the petitioner has argued that payment of his pension and other retiral dues were paid only on 9/11/2000 and and in doing so, respondents have illegally deducted Rs.10357/-. It was argued that petitioner was for the first time served with the notice on 6/6/2000 after a year of his retirement on the allegation that 187 cement bags were found damaged during inspection of the godown on 8/7/1999 and petitioner was responsible for making these losses good to the government because he was Site Incharge at the relevant time. He was informed that enquiry in this matter has been entrusted to the Deputy Director Kota. Petitioner was asked to deposit Rs.19414/- under protest and if eventually he was exonerated, amount would be refunded. When petitioner deposited the said amount, respondents deducted the said amount out of the payment of Gratuity. Learned counsel submitted that when the charge was handed over by the petitioner to Shri V.S. Paliwal, Junior Engineer on 31/5/1999, there was no such damage or loss found to the cement bags. Learned counsel argued that petitioner in no case was responsible for the loss of cement when the SBCWP No.1475/2002. 3 physical control of the store was with Shri Altaf Hussain Supervisor and petitioner was having only supervisory control. Till such time when petitioner was in services of the respondents, no such damage to the cement bags was discovered. This is only after retirement of the petitioner that the respondents on their own showing allege that during inspection of the godown on 8/7/1999, it was found that 187 bags containing cement were found to be sat and thus remained of no use. Learned counsel argued that respondents in reply to the writ petition have stated that though enquiry was held and petitioner and Altaf Hussain were jointly held responsible but neither any notice was given to the petitioner of such enquiry nor at any point of time any of them was associated with the enquiry. In fact, no departmental enquiry was pending against the petitioner at the time of his retirement. Respondents had even issued No Dues Certificate to this effect on 25/10/1999 which is on record at Annexure-3. Now, they cannot on their own unilaterally decide to deduct amount of Rs.10357/- from the Gratuity amount of the petitioner. 4) Shri Akhilesh Jain, learned Deputy Government Counsel opposed the writ petition and submitted that petitioner was Site Incharge at the relevant time and therefore loss of cement during his time would be attributable to his negligence. It was SBCWP No.1475/2002. 4 argued that the finance department has ultimately found the petitioner and Supervisor Altaf Hussain responsible for making the loss good in equal proportion. Delay in conveying the responsibility occurred due to the procedural requirement. Financial Advisor as per Rule 172 of the General Finance & Accounts Rules is entitled to make such deduction. This was the objection raised by the audit party. Learned counsel submitted that the delay in payment of retiral payments were due to procedural requirement and ultimately retiral dues of the petitioner were released on 9/11/2000. 5) I have given my anxious consideration to the arguments aforesaid and perused the material on record. 6) What is not in dispute is that petitioner handed over the charge of Store to Shri V.S. Paliwal, Junior Engineer on 31/5/1999 after his retirement and that during his service period, no enquiry was initiated against him nor any notice was served upon him. Respondents even issued a No Dues Certificate to the petitioner on 25/10/1999 which is on record. Notice was served upon him requiring him to deposit the amount under protest stating therein that if in the enquiry, he was not found responsible, the deposited amount shall be refunded. In reply though, respondents have stated that enquiry was conducted SBCWP No.1475/2002. 5 but nothing has been brought on record to show that petitioner was in any manner was associated with the enquiry. It appears that this was an internal enquiry based on the audit objections and respondents as per the provisions of the General Finance & Accounts Rules decided to fasten proportion liability equally amongst the petitioner and Altaf Hussain, Supervisor. No such enquiry was held against the petitioner when he was in service. Respondents cannot now hold the petitioner responsible for making good loss of the aforesaid amount particularly when they found the cement having sat during inspection carried on 8/7/1999. It is quite possible that cement bags lateron came in contact with water and in this process, they became useless. Inspection of the godown was conducted on 8/7/1999 and petitioner had already retired on 31/5/1999. Respondents cannot possibly attribute liability to the petitioner on presumption of fact that damage was caused while he was still in service. They have also not explained satisfactorily why the payment of retiral dues were withheld by the respondents when already petitioner had retired from service on 31/5/1999. According to Rule 89 of the Rajasthan Civil Services (Pension) Rules, 1996, the government is under legal obligation to make payment of all retiral benefits of a retired government servant minimum within a period of 60 days SBCWP No.1475/2002. 6 and in any case if payment is delayed beyond 60 days, the government servant is entitled to the interest @9% p.a. on the delayed payment. Petitioner is therefore entitled to receive interest on the delayed payment of retiral dues excluding the period of 60 days. 7) In the result, the writ petition is allowed. Order of recovery dated nil Ann.8, order of recovery dated 25/9/2000 (Ann.9) and order dated 9/11/2000 (Ann.10) whereby retiral dues were paid to the petitioner belatedly after deducting the amount of Rs.10357/- from his Gratuity amount to the extent of deduction are quashed and set-aside. Respondents are directed to refund the amount of Rs.10357/- deducted from the Gratuity amount to the petitioner with interest @9% p.a. Respondents are further directed to pay interest due to late payment made to the petitioner beyond 60 days @9% p.a. till its realisation. Compliance of the judgment shall be made within a period of three months from the date, its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. anil