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2014 Supreme(MP) 465
MADHYA PRADESH HIGH COURT
Sheel Nagu, J.
Kudusi Maval (Smt.) v. State of M.P. and others
Writ Petition No.1595 of 2010(S) (Gwalior); Decided on 9.9.2014.
D.P. Singh for petitioner;
B. Raj Pandey, Government Advocate for respondents/State.
Headnote:(1) Civil Services (Pension) Rules, 1966 (M.P.) -- R.9 -- scheme of pension -- civil post holder -- no disciplinary proceedings pending against him -- without order of Governor -- pension cannot be recovered or withheld in full or in part -- withholding of pension to extent of 10% is unlawful. [Paras 8 to 10
(2) Civil Services (Pension) Rules, 1966 (M.P.) -- R.66 -- retired employee -- gratuity -- when cannot be withheld -- any dues of Government -- can be recovered within six months from date of retirement -- after six months from date of retirement -- withholding 10% gratuity is unlawful -- recovery of any dues -- cannot be made without taking recourse of legal procedure -- withheld amount of gratuity released with interest.
Held : In the instant case not only the period of six months but also the period of 12 months after the date of retirement of the late husband of the petitioner has expired and, therefore, the government is statutorily prohibited from making any recovery except by taking recourse to legal procedure.
In this view of the matter, since the Government dues did not relate to house rent and water charges, the same could have been recovered within six months from the date of retirement and not thereafter. Late husband of the petitioner retired on 30th of June, 2004. The dues if any could have been recovered only till 30th of December, 2004. Thus w.e.f. 1.1.2005, the withholding of 10% of gratuity by the Government became unlawful.
(3) Constitution of India -- Art.300A -- pension, other terminal dues and gratuity -- these are not bounty to be disbursed at sweet will of State -- pension is precious right as akin to property -- without following due process of law -- deprivation of such right is impermissible. [Para 15
¼1½ flfoy lsok ¼isa’ku½ fu;e] 1966 ¼e-iz-½ && fu-9 && isa’ku Ldhe && flfoy in /kkjd && mlds fo:) vuq’kklfud dk;Zokfg;k¡ yafcr ugh && jkT;iky ds vkns’k ds fcuk && isU’ku dh iw.kZr% ;k v’kar% olwyh ;k jksdh ugh tk ldrh && 10 izfr’kr isa’ku jksdrk fof/kfo:) gSA
¼2½ flfoy lsok ¼isa’ku½ fu;e] 1966 ¼e-iz-½ && fu-66 && lsokfuo`Ÿk deZpkjh && miknku && dc ugh jksdk tk ldrk && ljdkj dh dksbZ cdk;k & lsokfuo`fŸk dh rkjh[k ls Ng ekl ds Hkhrj olwy dh tk ldrh gS && lsokfuo`fŸk dh rkjh[k ls Ng ekl i’pkr~ & 10 izfr’kr miknku jksd j[kuk fof/kfo:) gS && fdlh cdk;k dh olwyh && fof/kd izfØ;k dk voyac fy, fcuk ugh dh tk ldrh && miknku dh jksdh xbZ jde C;kt lfgr fueqZDr dh xbZA
vfHkfu/kkZfjr % bl izdj.k es ;kph dh LoxhZ; ifr dh lsokfuo`fŸk dh rkjh[k ds i’pkr~ u dsoy Ng ekl dh dkykof/k cfYd 12 ekl dh dkykof/k Hkh O;ixr gks xbZ gS vkSj] blfy,] ljdkj fof/kd izfØ;k dk voyac ysus ds flok; dkuwuh :i ls dksbZ olwyh djus ls fu”ksf/kr gSA ekeys ds bl n`f”Vdks.k ls] tc ljdkjh cdk;k edku fdjk;k vkSj ty izHkkjksa ls lacf/kr ugh Fkh] mls lsokfuo`fŸk dh rkjh[k ls Ng ekl ds Hkhrj olwy fd;k tk ldrk Fkk vkSj mlds i’pkr~ ughA ;kph dk LoxhZ; ifr 30 twu] 2004 dks lsokfuo`Ÿk gks x;k FkkA ;fn dksbZ cdk;k Fkk rc mls dsoy 30 fnLkEcj 2004 rd olwy fd;k tk ldrk FkkA bl izdkj 1-1-2005 ls ljdkj }kjk miknku dk 10 izfr’kr jksd j[kuk fof/kfo:) gks x;kA
¼3½ Hkkjr dk lafo/kku && vuq-300d && isa’ku] vU; lsokar cdk;k rFkk miknku && ;s ljdkj dh LosPNkuqlkj laforj.k ds fy, mnkj nku ugha gS && isa’ku laifŸk ds leku cgqewY; vf/kdkj gS && fof/k dh mfpr izfØ;k dk vuqlj.k fd, fcuk && ,sls vf/kdkj ls oafpr djuk vuuqKs; gSA ¼iSjk 15
1. This petition under Article 227 prays for the following reliefs :
1. that the respondents be directed to release withheld amount of 10% pension and gratuity along with arrears and interest at the rate of 15% p.a.
2. That any other relief which is suitable in the facts and circumstances of the case in favour of the petitioner including the costs throughout may also be granted.
2. The foundational factual matrix involved in this case is that the original petitioner who is now been substituted by his wife on account of his death which took place during pendency of this petition, was initially appointed as Jamadar in Fisheries Department in1966 and promoted as LDC in 1972. He attained the age of superannuation on 30th of June, 2004. It is contended that due to non-handing over of charge of the Store on account of the petitioner being unwell, letter of request was written by the petitioner Annexure R-1 dated 1.9.2004 stating that as soon as the petitioner gets well he shall hand over the charge, awaiting which 90% of his pension be released so that he could make his ends meet.
3. The State has filed its reply initially relying upon the above said letter Annexure R-1 dated 1.9.2004 but later following it up with an order dated 13.9.2004 Annexure R-2 by which 90% pension of the petitioner i.e. 2340/per month was sanctioned w.e.f. 1.7.2004.
4. The counsel for the State contends that until and unless charge of the Store is handed over by the petitioner the withheld pension to the extent of 10% and gratuity to the extent of 10% cannot be released.
5. Per contra, learned counsel for the petitioner by filing rejoinder has submitted that the charge of the Store was handed over by the petitioner on 30th August, 2005 vide Annexure P-7 to another person.
6. Learned counsel for the State seeks some time to file additional reply to bring on record the factum of the petitioner having actually handedover charge or not.
7. This Court declines grant of time to the State to file additional reply, not only for eschewing delay but also for the reason that even if the charge of the Store was not handed over by the petitioner, the pension and gratuity could not bewithheld to any extent.
8. As regards withholding of pension the scheme of the Pension Rules is very clear that no recovery or withholding of pension due to a civil post holder can take place in full or in part without the order of the Governor of the State as per rule 9.
9. It is further not disputed that there are no disciplinary proceedings pending against the petitioner.
10. In view of the above, withholding of pension to the extent of 10% is unlawful.
11. Withholding of 10% gratuity is now taken up infra. Late husband of the petitioner was sanctioned and paid 90% gratuity in terms of rules 66(2)(c ) of the Pension Rules. As such 10% of the gratuity was withheld possibly due to the failure of the Government to assess and adjust the recoverable Government dues from the late husband of the petitioner. The material placed on record by the rival parties does not disclose that any security or cash deposit was taken from late husband of the petitioner at the time of his retirement on 30th of June, 2004, as provided in rule 66(1)(b) and 66(2)(a) and (b). Beside, the provision contained in rule 66(3)(a) provides for a maximum period of six months from the date of retirement for the government to assess and adjudge the recoverable dues. This very provision further stipulates that if no claim is made by the Government against the government servant within six months from the date of retirement it shall be presumed that no Government claim excluding claims of house rent and water charges are outstanding against him. Further, the contents of proviso to rule 66(4) prohibits the Government from recovery even of house rent and water charges after elapse of period of 12 months from the date retirement. Lastly rule 66(4) lays down that dues which remain unrealized within six months provided in rule 66(3)(a) and
