Hon’ble Dr. Chhabilendra Roul, Member (A)
1. The present OA has been filed by the applicant seeking the following reliefs:
A. To call for records of the case.
B. To command the Respondents to release the pensionary & other benefits applicable to the post held by Applicant after he has undergone the punishment imposed by the Disciplinary Authority & the Appellate Authority.
C. Pass any other such further order as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”
2. The factual matrix of the present case is as follows:
2.1 The applicant was appointed as Operator (E&M) in the year 1984 on temporary basis with the respondents. Subsequently, on 4.03.1993, he was regularized in service. One Smt. Sudesh (wife of Shri Dayanand, step brother of the present applicant) filed a complaint dated 16.12.2013 alleging that the applicant had obtained employment by suppressing his actual date of birth. On receipt of the said complaint, the respondents issued notice to the applicant and the applicant filed reply thereto. However, not satisfied with the reply of the applicant, the respondents initiated disciplinary proceedings under Rule 14 of the CCS (CCA) Rules, 1965 for claiming wrong date of birth as 4.05.1958 against the actual date of birth as 4.05.1946. The disciplinary proceedings were conducted against the applicant and the Inquiry Officer (IO) vide his report dated 9.04.2014 proved the charges leveled against the applicant. The Disciplinary Authority (DA) vide order dated 27.01.2015 imposed the following punishment:
“a. The services rendered by Sh. Om Prakash after 05/2006 shall not be considered for payment of gratuity.
b. The earned leave accrued in his amount of payment of earned leave encashment after 05/2006 will not be encashed.
c. The LTC/Children encashment Reimbursement claimed after 05/2006 be recovered with interest from gratuity.
d. Compulsory retirement with immediate effect.”
2.2 Again vide order dated 28.01.2015, the DA modified the order of punishment as follows:
“e. He will be deemed as retired w.e.f. 31/05/2006 (AN) and accordingly his pension papers shall be finalized as ordered by the competent authority (ANNEXURE A-1 (colly.)”
2.3 The Appellate Authority (AA) vide order dated 22.12.2015 accepted the punishment imposed by the DA. Vide letter dated 15.02.2019 (impugned order), the respondents directed the applicant to pay Rs.1775279/- on various accounts recoverable from him so that his pension case could be finalized. The applicant made repeated representations to the respondents for releasing his retirement benefits. However, the respondents did not respond to his request favourably. Being aggrieved, the applicant has filed the present OA seeking the aforementioned reliefs.
3. Notices were issued to the respondents and they have filed their counter reply, to which the applicant has also filed rejoinder.
4. The applicant in his OA as well as through his counsel during the arguments, has tendered the following grounds in support of the relief claimed by him.
4.1 The respondents have issued recovery order for various payments including salary paid to the applicant since 2006. The respondents are demanding Rs.1775279/- on the following accounts:
“Total pay from 01/06/2006 to 31.12.2004 ..Rs.2369495
Over time allowance Rs.55,550/-
Bonus Rs.27632
Total Rs.2452677
GPF from 01/06/2006 to 31.12.2014 …..Rs.731292
Less advance taken……Rs.2,60,425/
Add refund ……Rs.206531/
Total Rs. ……Rs.677398
Grand total Rs.2452677- Rs.677398 = Rs. 1775279"
The learned counsel for the applicant pleads that this recovery, not followed by any notice to the applicant, has violated the principles of natural justice.
4.2 The learned counsel for the applicant further avers that the punishment imposed by the DA does not include the recovery of salary, over time payment, bonus or any recovery from the GPF. In view of this, the recovery ordered by the impugned order dated 15.02.2019 is like another punishment in addition to the punishment already inflicted upon the applicant vide order dated 27.01.2015 and 28.01.2015 issued by the DA, which was confirmed by the AA. It amounts to punishing the applicant twice for the same irregularity or offence.
4.3 In support of his argument, the learned counsel for the applicant cited the following judgments:
i. Dr. Hira Lal Vs. State of Bihar & Ors., (2020) 2 S.C.R. 907
ii. Motya Vs. Kannada Vishwavidyalaya & Ors., 2019 Legal Eagle (KAR) 1253
iii. Dev Prakash Tewari Vs. U.P. Cooperative Institutional Service Board, Lucknow & Ors., (2014) 7 SCC 260 [LQ/SC/2014/631]
iv. V. Prakash Chandran Vs. Kerala Gramin Bank Malappuram and Anr., 2018 LAB. I.C. 4433
4.4 In Dr. Hira Lal (supra) case, the Hon’ble Apex Court referred to the State of Jharkhand & ors. Vs. Jitendra Kumar Srivastava, (2013) 12 SCC 210 [LQ/SC/2013/893] and held that:
“....pension is `property’ within the meaning of Article 300A of the Constitution, and executive instructions which do not have any statutory sanction cannot be termed as “law’ within the meaning of Article 300A. It was further held that in the absence of statutory rules permitting withholding of pension or gratuity, the State could not do so by way of executive instructions. It was observed that “So far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.
Hira Lal (supra) judgment has further cited ruling of Supreme Court in Deokinandan Prasad Vs. State of Bihar, (1971) 2 SCC 330, [LQ/SC/1971/288] where it was held that:
“30. The question whether the pension granted to a public servant is property attracting Article 31 (1) came up for consideration before the Punjab High Court in Bhagwant Singh Vs. Union of India [AIR 1962 Punj 503]. It was held that such a right constitutes “property” and any interference will be a breach of Article 31 (1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in letters patent appeal by the Union of India.”
Learned counsel for the applicant states that after retirement of the applicant the respondents have withheld the pensionary benefits of the applicant and ordered for recovery of Rs.1775279/- from the retirement benefits. He avers that demanding payment of such amount for deciding the pensionary benefits to the applicant amounts to withholding his private property as has been held by the Apex Court in aforementioned judgments. He further avers that in Motya (supra) case, the Karnataka High Court has held that:
“This being the legal position, recovering the salary earned by the petitioner amounts to acquisition of his property without compensation which the blood, bone and flesh of Article 300A of the Constitution shun. Therefore, the University is not justified in resorting to proceedings for recovery of the salary duly earned by the petitioner.”
Referring to Dev Prakash Tewari (supra) and V. Prakash Chandran (supra) cases, learned counsel for the applicant avers that in absence of any statutory provisions, the respondents could not have recovered from salary, which had already been paid to the retired person. Moreover, the order dated 28.01.2015 states that the retirement will be effective from 31.05.2006. In view of this, the alleged recovery from payment of salary and other allowances to the applicant amounts to retrospective application of the order dated 28.01.2015.
5. Per contra, learned counsel for the respondents referred to the counter affidavit filed by the respondents. The applicant was asked to deposit an amount of Rs.17,75,279/- in pursuance of office order dated 28.01.2015. The applicant has not challenged the same in the OA. The letter dated 15.02.2019 asking the applicant to deposit the said amount has not been challenged in the relief clause of the OA. The applicant has been awarded the punishment of deemed retirement with effect from 31.05.2006. He has been paid salary from 1.06.2006 to 31.12.2014. Technically and legally, he was not in service during that period. His service has been forfeited for the said period vide order dated 28.01.2015. During this period, he has been paid Over Time Allowance to the extent of Rs.55,550/- and bonus to the tune of Rs.27,632/-. After adjusting his GPF amount of Rs.677398/-, Rs.1775279/- is recoverable from the applicant. The recovery as ordered by the respondents is legitimate. Unless the applicant pays the said amount to the respondents, his pension papers cannot be finalized. Accordingly, the present applicant cannot be granted any pensionary benefits till he clears the outstanding amount of Rs.1775279/-.
6. I have heard the arguments carefully and gone through the records of the case.
6.1 In the instant case I tend to agree with the learned counsel for the applicant that before effecting recovery, no notice has been issued to the applicant. It clearly violates the principles of natural justice. On this count only, the recovery order dated 15.02.2019 needs to be quashed. Furthermore, I tend to agree with the averment of learned counsel for the applicant that the punishment order issued by the respondents has not mentioned any recovery of salary paid to the applicant for the aforementioned period along with Over Time Allowance and Bonus. In view of this, the recovery order dated 15.02.2019 is irregular. Though the DA has ordered that the applicant’s retirement be considered to be deemed on 31.05.2006, the order has been issued on 28.01.2015. The ratio of the judgments cited by the learned counsel for the applicant are applicable to the present case, as in all these cases, the facts and circumstances refer to impounding of pension. Here, though the respondents have not directly impounded the pension, their action in linking the payment of pension to refund of Rs.17,75,279/- so that the applicant’s retirement dues be decided, is amounting to deferring the payment of pension. The order dated 15.02.2019 is illegal, and the non-payment of pension on account of this illegal order amounts to impounding, though for the time being, of the pension of the applicant.
6.2 In this case, the ratio laid in the judgment in Rafiq Masih (supra) is squarely applicable. In the said case, the Hon’ble Apex Court held as follows:
“12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in case of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
xxxx xxxx xxxx
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.”
6.3 In the instant case, the recovery order has been issued on 15.02.2019 and the recovery pertains to the period 2006 to 2014. So it violates clause (iii) of para 12 of the Rafiq Masih judgment (supra). Moreover, it also violates clause (i) of the said paragraph which states that it is impermissible in law to make recovery from employees belonging to Class-III and Class-IV. In the present case, the applicant is Operator and holds a Group `C’ post. In view of this, applying the ratio of judgment in Rafiq Masih (supra), the recovery is not permissible in law. It is not out of place of mention that the Rafiq Masih judgment has been reiterated in Thomas Daniel Vs. State of Kerala & ors., Civil Appeal No.7115/2010. Moreover, the Government of India has accepted the judgment in Rafiq Masih case and vide OM dated 2.03.2016 has also directed various ministries to take note of the said judgment in case of wrong payment to its employees.
7. In view of the above, the present OA is allowed in the following terms:
(i) the impugned order dated 15.02.2019 is quashed;
(ii) the respondents are directed to calculate the retirement dues of the applicant considering the deemed date of retirement as 31.05.2006. There shall not be any deduction on account of any payment from 1.06.2006 till 28.01.2015 from the retirement dues because the retirement order dated 28.01.2015 states that the retirement is effective from 31.05.2006; and
(iii) the respondents should draw out a detailed statement regarding the amount of pension and other retirement benefits payable to the applicant and furnish copy of the same to him. They shall release payment of retirement dues to the applicant within a period of eight weeks from the date of receipt of a copy of this order.
8. There shall be no order as to costs.
