to^P^ o5 BEFORE THE M.P.STATE ADMINISTRATIVE TRIBUNAL.JABALFUS. O.A.No. Agplicant: vs- Respondentss l/ 2/ Of 1997 S.S.Seal. s/o late P.B.Seal,aged aboat 65 years, retired Sab-EnglHeer, R/o Frezarpur Village area Negr Sbankar Mandir,Jagdalpur, Distt-Bastar(H.P.) State of Madhya Pradesta througb -Tbe Secretary, Public Borks Dgparrinent, Govt.of M.P.Mantralaya. Bbopal. ' The Engiaeer-in-Chief, Pitblic Works Departnent, Goyt.of M.P. Satpara Bhawan,Bhopal. 3/ The Superintenc'ing Bngineer, P.W.B., Bastar Cj.rcle, , Jagdalpur-.Bistt-Bastar 4/ l-be Executive EngiiBer, P.W.D.West Bastar Division, Bijapur.Distt-Bastar. 5/ be TreasurY Gftlcer, JagdalpuE.Distt-Bastar. APPLXCATIOH UliIDER SECTION 19_OF TtiE ArimNISTRATIVE TRIBCNAl, ACT,1988 ^ ,,".-y 1:1 Slo... i''%^ 1&. & "^it 'd ^3.. ,;;- Kf ^ '^.^<G ^ o A^A. HIGH COURT OF CHHATTISGARH, BILASPUR SINGLEBENCH : HON'BLE SHRI MANINDRA MOHAN SHRFVASTAVA.J. Wnt Petition (St No. 1624/2005 PETITIONER S.S-.Seal RESPONDENTS Versus State of Madhya Pradesh Chhattisgark) and others (now ORDER i\-. POST ON 1"APRIL. 2010 _^^__ - ——— Sd/- ; ManindraMohanShrivastav^ Judge .'"^ s i3: J1' ^--y HIGH COURT OF CHHAmSGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAILSHRIVASTAVA.J. PETITIONER RESPONDENTS Writ Petition (Sl No. 1624/2005 S.S. Seal Versus State of Madhya Pradesh Chhattisgarhj and others (now Appearance: Shri Prafull Bharat, counsel for the petitioner. Shri Ajit Singh, Panel Lawyer for the State. Q^R D E R (Passed on 1 .04.2010) 1. This petition has been filed by the petitioner assailing legality and validity of order/communication dated 26.11.1991 (Annexure A-3). Petitioner has also prayed for appropriate writ or order for payment of balance pension, D.C.R.O., cumulative value of pension as also direction to respondents to refund surety amount of Rs.6,000/- along with 10% leave salary deducted from salary as also payment of interest @ 24% on the entire balance payment w.e.f. 1.2.1990 till payraent. 2. Facts relevant for adjudication of controversy involved in the petition are that the petitioner, a Sub-Engineer in Public Works Department, retired from service upon attaining the age of superannuation under letter dated 25.1.1990 (Annexure A-l). Case of the petitioner is that after redrement, A.G., M.P. sanctioned pension of Rs.1,102/- per month w.e.f. 1.2.1990. He further sanctioned commuted value of 1/3 pension vide his letter dated 13th April, 1993. In the meandme, -2- .^ v,^..^,/ ^'""'. .3^ "^'^•'.:~ r>^-:-:'• ?--^' A.G.fAudit) II, M.P., Bhopal vide letter dated 5.7.1991 (Annexure A-2) raised objections concerning the accounts of P.W.D., West Bastar Division, Jagdalpur and fixed responsibility on one Sub Engineer Umesh Nimaje. It is' the case of the petitioner that said Nimaje passed on a part of his liability on the petitioner by alleging that out of the total quantity of rice found short, a quantity of 22.325 M.T. rice was received by the petftioner. Respondent No.S/Superinttending Engineer, P.W.D, sent his memo on 18.7.1991 (Annexure A-5) in reply to audit objections, wherein amongst others, liability was also fixed on the petitioner towards recovery against unaccounted 22.325 M.T. rice. A nodce/charge sheet was issued to the petitioner on 26.11.1991 (Annexure A-3), which was replied by the petitioner vide his reply dated 8.4.1992 (Annexure A-4). Petitioner having submitted his reply, no further orders passed, pedtioner was under bonafide belief that authorities are satisfied with his reply as no further departmental uiquiry in the matter was conducted. 3. Further case of the petitioner is that while various payments were sancdoned, because of the aforesaid proceeding, various retiral dues of the pedtioner were either withheld or paid only in part. An amount of Rs.6,000/- was recovered from the salaiy bills of the petitioner for unforeseen recoverable dues. Aggrieved by inaction of the respondents, series of representations were niade by the petitioner filed collecdvely as Annexure A-6. However, his grievance was not redressed nor retrial dues paid and after more than 7 years of his retirement, a letter was fesued on 3rd April 1997 (Annexure A-7) by the Executive Engineer stating that the pension case of the petitioner has been sent vide letter dated 1.4.1997 and a recovery of Rs.48,713/- against 22.325 M.T rice -3- a f is proposed. Petitioner was also informed that he should immediately deposit recovery amount of Rs.48,713/-, failing which disciplinaiy action will be taken. Under these circumstances, the pedtioner has filed this petition. 4. Assailing the action and order of recovery, leamed counsel for the petitioner contended that no recovery cpuld be made from the petitioner after his retirement except by the order/sanction of the Governor and in the manner prescribed under the M.P./C.G Civil Services (Pension) Rules, 1976 (henceforth "the Rules of 1976'}. Petitioner argued that no departmental inquiry was initiated against the petitioner and without following principle of natural justice, recovery has been ordered. Further submission is that the alleged charge sheet dated 26.11.1991 (Annexure A-3) was issued by the Executive Engineer who is not the competent authority to make recovery. In any case, after the submission of reply of the petidoner, no further proceedings were drawn. Leamed counsel for the petitioner argued at length to demonstrate that in fact the entire recoveiy was only directed against other Sub-Engineer Umesh Nimaje, but later on to save him, Executive Engineer misguided higher authorities, including A.G., M.P. that Nimaje had issued a quantity of 22.325 MT rice to the petitioner and therefore recovery was liable to be made from the pedtioner. 5. Per contra, learned counsel for the respondents submits that there were cert&in recoveries against the petitioner and vide order dated 26.11.1991 (Annexure A-3), an amount of Rs.48,713/- was ordered to be recovered. The Sub-Divisional Officer, P.W.D., B 85 R, Madded Sub Division- Bijapur vide his letter dated 14.6.1990 (Annexure R-l) •<. -4- ^' ^ . informed the Executive Engineer that there were certain recoveries towards loss of cement, steel 85 rice pending against the petitioner. It is further submitted that in fact the recovery was started in the year 1988 itselfand w.e.f. August, 1988, Rs.300/- was deducted from his pay. At the tirae of his retirement, the remaining amount of rs.37,936/- out of total recoverable amount of Rs.43,936/- sill reraained to be recovered. Respondenfs have also raised an objection that challenge to order dated 26.11.1991 is highly belated. It is submitted that recovery was effected from August 1988 and order was passed on 26.11.1991. As such, the challenge made to the recovery proceedings at such a belated stage is liable to be dismissed only on the ground of delay and laches, as before filing this petition, no challenge was made to the same by the petitioner in the past ever since 1988. It is also submitted that in fact petitioner had received rice bags to the tune of 22.325 M.T which is evidenced by receipt (Annexure R-2) issued by the petitioner himself on 30th March, 1987. Since the petitioner did not give any account in respect of 22.325 MT of rice, recovery was required to be made. It is also submitted that vide letter dated 18.6.1990 (Annexure R-3) in response to representation of petitioner's wife, it is stated that a recovery of Rs.59,721/- is pending against the petitioner. It is argued that on account of aforesaid recoveries pending against the petitioner, pension of the petitioner could not be finalized. It is also brought to the notice of this Court that an amount of Rs.48,713/- has already been recovered as evidenced from Annexure R-4. . Further submission of leamed counsel for the respondents is that in view of receipt (Annexure R-2), representation made by the petitioner was discarded and recovery made. Learned couiisel for the respondents submits that by the impugned action and order, only Government dues -5- were being recovered without implication of any charges of misconduct and therefore the provisions of the Rules of 1976 are not attracted as the proceedings are not under those provisions. Executive Engineer, it is stated, is competent to effect recoveries to the extent of loss caused to the Government revenue and no competency is required. For this reasons, it is argued, no prior sancdon of the Governor was necessary. £> 6. I have given my anxious consideration to the submissions made by counsel for the respective parfies and perused the records. 7. From the pleadings and documents on record, it is found that petitioner retired on 31st January, 1990 after notice, upon attaining the age of superannuation. There is nothing on record to show that before retirement of the petitioner, any recovery proceeding was initiated or any order of recovery passed against the petitioner. Frora memo dated 14.6.1990 (Annexure R-l), it is revealed that Sub Divisional Officer, P.W.D. (B 8s R) Madded, Bijapur informed Executive Engineer that vide memo dated 7.6.1990, some recovery was proposed against alleged shortages of materials from Sub Divisional Store. However, said memo dated 7.6.1990 has not been placed on record. Further, from communication dated 18.6.1990 (Annexure R-3), Executive Engineer informed the wife of the petitioner that recovery against certain alleged shortages in the Store was proposed stating that if the items are not returned, recovery would be made from the pension of the petitioner. Prom memo dated 5th July, 1991 ofAssistant Audit Officer/S.F.I. Camp Jagdalpur in the office of A.G. (Audit) II M.P., Bhopal, it is revealed that in the matter of shortage of rice in P.W.D., West Bastar Division, Jagdalpur, it was recorded that one Umesh Nimaje, Sub-Engineer was issued 290.13 M.T of rice out of which 59.53 MT of rice remained -6- > g ^ ^ \ unaccounted for in MAS accounts. The said memo further recorded that said Nimaje had stated in his letter dated 10.8.1990 and 21.9.1990 that that 22.325 MT rice was bransferred to the petitioner on 30U1 March, 1987, but it was not accounted for in MAS accounts of the petitioner. In response to the aforesaid memo dated 5th July, 1991, the Superintending Engineer, P.W.D, Bastar Division, Jagdalpur vide his memo dated 18.7.1991 (Annexure A-5) mformed that said Nimjae was responsible for various shortages and along with him some other officers including petitioner were held responsible and disciplinary inquiry was proposed. The Executive Engineer vide his memo dated 26.11.1991 (Annexure A-3) issued charge sheet to the petitioner for recovery of Rs.48,713/- against alleged shortage of 22.325 MT of rice from the petitioner. Froin the aforesaid documents, it is found that by issuing a charge sheet, recovery was proposed against the petitioner in view of inquiiy opened by the office of Accountant General vide his memo dated 5th July, 1991 (Annexure A-2). Petitioner subniitted his reply to the aforesaid charge sheet dated 26.11.1991, vide his letter dated (Annexure A-4), wherein he denied his liability against any such recovery. Petidoner categorically stated in his reply that he never received the rice as alleged in the charge sheet and against which recovery was proposed. There is nothing on record to show that thereafter any proceedings were drawn in the niatter of aforesaid charge memo dated 26.11.1991 in the case of the petitioner. The petitioner had been making representations one after the other as evidenced from Annexure A-6 and finally memo dated 3.4.1997 (Annexure A-7) was issued from the office of Executive Engineer requiring him to deposit an amount of Rs.48,713/- being cost of 22.325 MT rice. ^s^ ;"%. -'g '%. -7- 8. Charge sheet issued on 26.11.1991 proposed imposition of penalty in the form of recoveiy of Rs.48,713/-. This was merely a charge sheet and not a final order. In fact, fhe recovery was ordered vide order dated 3.4.1997 (Annexure A-7). I am, therefore, unable to accept that there was undue delay and laches on the part of the petitioner in filing the petition against recovery. Memo dated 26.11.1991 (Annexure A-3) cannot be sa'id to be an order of recovery, but as is clear from documents, it is a charge sheet proposing a penalty of recovery. Unless the same culminated in final order, there was no occasion for the petitioner to challenge the same. Soon after order dated 3.4.1997 (Annexure A-7) was passed, instant petition was filed. Respondents have also stated that recovery had already started from salary of the petitioner from August 1988 itself in respect of certain recoveries of Rs.43,936/- against alleged shortage in Store and at the time of retirement, the balance amount was Rs.37,936/-. As the petitioner did not challenge the aforesaid recovery proceedings in the ruatter of recovery of Rs.43,936/- imposed on the petitioner from 1988, the petitioner could not challenge the same by filing instant petition in the year 1997. In the petition, it has been stated by the petitioner that while relieving the petitioner on superannuation, an amount of Rs.6,000/- was deducted from the salary bills against unforeseen recoverable dues. There is no material on record to demonstrate that alleged recovery started from August, 1988 by virtue of any order of recovery passed against the petitioner in the matter of recovery of Rs.43,936/- . Neither any notice nor proceedings nor any iinal order has been placed on record by the respondents to show that any order of recovery was passed against the petidoner in any inquiry prior to his retirement. T 9. It is thus clear that it was only after the retirement of the petitioner i.e. only after 31st January, 1990 that various recovery proceedings were drawn by respondents, recoveiy orders passed and recoveries made froin the pension'of the pedtioner. It is evident from memo dated 11.11.1997 (Annexure R-4). 10. Recoveiy from pay of the whole or part of any pecuniary loss caused by Government servant to the Government by his negligence or breach of orders is specified as a minor penalty under Rule 10 (iii) of the M.P./C.G. Civil Services (Classification, Control & Appeal) Rule, 1966 (henceforth "the Rules of 196G'}. Rule 16 of the Rules of 1966 provides that no order imposing on a Government servant any of the penaltfes specified in clauses (i) to (iv) of Rule 10 shall be made except after informing the Govemment servant in writing of the proposal to take action against him and on the imputadons of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal, holding inquiry under Rule 14 wherever found necessaiy, taking the representation and the record of inquiry, if any, into consideration and recording a finding on each imputation of misconduct or misbehaviour. It further provides for consultation with fhe Coramission where such consultation is necessaiy. This is the procedure prescribed under the law in respect of a Government servant in service whenever any recovery is proposed. There is no material on record to demonstrate that any penalty of recovery was ever imposed on the petitioner while he was in service. It is not the case of the respondents that while in service, petitioner was visited with any minor :\ -9- ^ penalty in the form of recovery against alleged shortages in the Store or against alleged shortage of 22.325 MT of rice. 11. After retirement of a Government servant, if any occasion arises for recovery in respect of any pecuniary loss caused to the Government while the Government servant was in service, it could be recovered from the pension by the authority and in the manner as prescribed under Rule 9 of the Rules of 1976. Sub rule (1) of Rule 9 provides that the Governor reserves to 'himself the right of withholding or withdrawing a pension or part thereof, whether pemianently or for a specified period, and of ordering recovery from the pension of the whole or part of any pecuniary loss caused to the Government if, in any departmental or judicial proceeding, the pensioner is found guilty of grave raisconduct or negligence during the period of his service, including service rendered upon re-employment after redrement. Further, sub-rule 2 (a) of Rule 9 of the Rules of 1976 provides that the departmental proceedings, if instituted while the Government servant was in service, whether before his retirement or during his re- employment, shall, after the final retirement of the Government servant, be deemed fo be proceedings under Rule 9 and shall be continued and concluded by the authority by which they were commenced, in the manner as if the Government servant had continued in service. It further provided that where departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report regarding its finding to the Governor. Clause (b) of sub-rule 2 of Rule 9 further makes provision that departmental proceedings, if not instituted while the government servant was in service whether before his retirement or during his re- -10- employment, it shall not be instituted save with the sanction of the Govemor and shall 'not be in respect of any event which took place more than 4 years before such instita-ition and further such inquiry shall be conducted by such authority and in such place as the Governor raay direct and in accordance with the procedure applicable to departmental proceedings. e? 12. From the above relevant provisions of Rule 9 of the Rules of 1976, it is clear that after retirement, recoveiy could be ordered from the pension which includes gratuity, only in the inanner as prescribed above. In the present case, it is borne-out from the pleadings and record that after the retirement of the petitioner, certain liabilities were fastened on the petitioner, which either related to alleged shortage of certain materials of the Store or in the matter of unaccounted rice in the quantity of 22.3-25 MT. These recoveries were made against the petitioner after his retirement from the araount of his pension and gratuity. Petitioner never admitted these liabilities. There is no inaterial to show that any inquiiy was initiated, and that concluded in an order of recovery prior to retireraent of the petitioner. Unless these recoveries were ordered in a duly constituted proceeding and as a measure of minor penalty, it could not be termed as Goveminent dues as referred to in Rule 65 of the Rules of 1976. Under these circumstances, the only course of option available to the respondents was to initiate appropriate proceedings against the pelitionef under Rule 9 of the Rules of 1976 and make recovery if it was found in that inquiry that on account of grave misconduct or negligence pecuniary loss was caused to the Government. Respondents contention that recovery is in respect of Government dues and as -11- Governnient revenue has been recovered, therefore there was no need to hold any inquiry nor any sanction from the Govemor, cannot be accepted. While the petidoner has challenged action on a specific ground that charge memo dated 26.11.1991 was issued by incompetent authority, no material has been placed before this Court to show that the Executive Engineer was the competent disciplinary authority in respect of Sub Engineer in the aiatter of inquiry under Rule 9 of the Rules of 1976. There is also no material to show that Executive Engineer being competenf authority to initiate inquiiy had obtained due sanction from the Governor as required under Rule 9 (2) (b) (i) of the Rules of 1976. It is apparent that it was only after the retirement of the petitioner that charge n-iemo dated 26.11.1991 (Annexure A-3) was issued. In the opinion of this Court, in view of what has been rerecorded as above, the very issuance of charge memo was wholly incompetent as there was no statutory sanction of the Governor. Moreover, iinpugned order dated 3.4.1997 requiring the petitioner to deposit amount of Rs.48,713/-, failing which disciplinary action would be initiated is also found to be without authority of law. Respondents have failed to produce any proceedings or order of penalty pursuant to charge memo dated 26.11.1991. If for arguments sake, it is assumed that after retirement inquiry was initiated towards recovery, vide charge memo dated 26.11.1991, the sarae was not brought to its logical conclusion much less an order of penalty. Contention of the respondents that charge memo dated 26.11.1991 itself constituted order of recoveiy deserves to be rejected at the threshold. The title of the document dated 26.11.1991 reads "3TKPT q^T". It further reads that petitioner is proposed to be held guilty and charges are framed to the effect that petitioner is liable for recoveiy of Rs.48,713/-. The Form and -12- ^":h >" substance, both of this charge sheet could not, by any stretch of iraagination, be said to be an order of penalty. In fact what is borne-out from the record is that when recoveries were made froin the petitioner, a memo dated 3.4.1997 (Annexure A-7) was issued. Petitioner having found that recovery has been made, filed this petition. 13. In the final ^analysis, this Court comes to the conclusion that the proceedings drawn and recoveries made against the petitioner after his redrement, from the amount of his pension and gratuity are wholly illegal, without jurisdicdon and authority of law, being in violation of mandatory provisions contained in Rule 9 of the Rules of 1976. Consequently, charge memo dated 26.11.1991 (Annexure A-3), recovery proceedings, inemo dated 3.4.1997 (Annexure A-7) and recoveries made after retirement are declared illegal and set aside. Petitioner shall be entitled to refund of the entire recoveries made after his retirement from the amount of his pension and gratuity. 14. Petition is accordingly allowed. There shall be no orders as to costs. ^^raMohanShrivast.^ Judge '' Praveen