Allowed

Abdul Saban Khan v. State of Chhattisgarh and Others

Chhattisgarh HC11 Sept 2012WPS/5257/2008

Case brief

AI extract

What is this about?

It was held that recovery of miscellaneous advances under Rule 65 of the M.P. Civil Services (Pension) Rules, 1976 requires an opportunity of hearing where civil consequences ensue. The court declared the adjustment of Rs.96,029/- from the petitioner's gratuity illegal and unconstitutional for lack of hearing and directed the amount to be accounted for.

What did the court decide?

The adjustment of Rs.96,029/- from gratuity was declared illegal; the amount is to be credited to the gratuity fund within two months.

Abdul Saban Khan Vs State of… — Pension and Retirement Benefits | Chhattisgarh HC (2012)

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^<on"^A&ft wr,w"^^"-,'...^^aw f^.w AMENDMENT PETITION IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH Writ Petition (S)5257/2008. (SB) PETITIONER Abdul Saban Khan, S/o Late Shri Raheem Khan, aged about 64 year, Occupation, Retd. Sub- Engineer Irrigation (E&M) R/o Netaji Chowk Akaltara Road, Janjgir< Champa (Chhattisgarh) VERSUS -^ RESPONDENTS 1. State of Chhattisgarh Through, Secretary, Irrigation Department, D.K.S. Bhawan, Mantralaya .-4 District - Raipur. (C.G.) 2. Joint Director, Treasury, Accounts and Pension, Bilaspur, District Bilaspur (C.G) ^ 3. Executive Engineer, Hasdev Nahar Jal Prabandhan Sambhag, District JanjgirChampa (Chhattisgarh) <^ ^- 4. District Treasury Officer, Janjgir, District JanjgirChampa (C.G.) WRIT PETITION UNDER ARTICLE 226 /227 OF THE CONSTITUTION OF INDIA FOR THE ISSUANCE OF THE DIRECTION (S), OR ORDER (S).

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HSGH COURT OF CHHATTISGARH : BILASPUR

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Slngle Bench: Hon'bie Shri Manincjra Mohan Shrivastava, J.

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Writ Petition CS) No.5257/2008

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PETiTiONER Abdul Saban Khan

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Versus

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RESPONDENTS

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State of Chhattisgarh and others

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WRIT PETITiON UNDER ARTiCLE 228/227 OF THE CONSTtTUTiON OF tNDiA

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Present: - Shri Sandeep Dubey, counsei for the petitioner. Shri Arun Sao, Government Advocate for the State/respondents.

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ORAL ORDER

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(Passed on 11th ofSeptember, 2012)

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Heard finaily with the consent of the parties.

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h«l""ll»*r

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in view of the developments during the pendency of the petition, the oniy issue which requires determination by this Court is whether the respondent couid have ordered and adjusted an amount of Rs.96,029/from the amount of gratuity payabie to the petitioner upon his retirement vide Annexure P/8 impugned in this petition.

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Quintessentiai facts for determination of the short controversy are that the petitioner worked as Sub-Englneer in the department of irrigation (W'ater Resources) in the State of Chhattisgarh and retired upon attainhg the age of superannuation w.e.f. 31703/05. tn the process of ciearing aii the dues, the petitioner submitted an appiication dated 15/03/05 (Annexure

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P/2) praying for issuance of No Dues Certificate. After about five monfhs, the petitioner submitted another appiication on 12/09/05 (Annexure P/3) for ciearance and reiease of ali the retiral benefits as weH as pension. At this stage, the impugned memo dated 22/09/05 was issued to the petjtioner informing that an amount of Rs.96,029/- is recoverable under the head "Misceilaneous Advance". The petitioner, by the aforesajd memo, was asked to give his consent for adjustment of the said amount from leave encashment benefrts payabie to him on his retirement. The petitioner, however, disputed any iiability towards recovery vide his response dated 27/09/05 (Annexure P/4). It is reievant to note that even before that, the petitloner had submitted appiication vide Annexure P/3 for reiease of retira! benefits by stating that any pending case refating to recovery against mjsceiianeous advance be decided.

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it appears that on 10/04/05, an undertaking in Form 26 (Annexure R/3) referabie to Rule 66 ofthe M.P. Civii Services (Pension) Ruies, 1976 (for short 'the Ruies of 1976') was taken from the petitioner and on that basis, it was assumed that the petitioner has glven his consent for recovery. Therefore, the case of the petitioner was forwarded vide memo dated 24/07/06 (Annexure P/5), which amongst other documents included the undertaking towards recovery. Vv'hen the petitloner came to know about it, he submitted representation on 22/09/06 stating that he has not given any undertaking for recovery. The case of the petitioner thus, remained pending and aggrieved by non-reiease of the retirai dues, the petitloner fiied petition before this Court, registered as VV.P.(S)

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' ^S££S&, .S'

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No.6166/06, aggrieved by Annexure P/1 dated 22/09/05. While that petition remained pending, the petitioner came to know that the amount said to be due and recoverabie, has already been recovered by adjusting the same from the amount of gratuity payable to the petitioner. Vv'hen this fact was brought to the notice of the Court, the said wr'rt petition was dismissed as having become infructous, with the iiberty to chaiienge the consequentiai order. Thereafter, the instant writ petition has been fiied by the petitioner.

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To assaii the correctness and validity of so called notice dated 22/09/05 (Annexure P/1) and memo dated 15/09/08 (Annexure P/8) whereby, adjustment has been made against gratuity, leamed counsel for the petltioner submits that impugned action is in violation of principles of naturai justice apart from being in violation of provisions contained in Rule 9 of the Ruies of 1976. According to iearned counsel for the petitioner, the amount couid have been recovered only by holding an enqulry In the manner prescribed in Ruie 9 ofthe Rules of 1976 underthe authority ofthe Governor as the petitioner had already retired from Government Service. in his submission, neither any charge sheet was jssued to him nor any enquiry was heid. Therefore, in the absence of any finding of misconduct, no recovery could be made from the pet'rtioner under the garb of dues against misceilaneous advances. Further submission is that in any case, once the petitioner has not admjtted his liability towards any recovery inciudlng a recovery against misceiianeous advances,the principfes of

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natural justice obiiged the respondents to hear the petitioner against proposed recovery and then only make adjustment against retiral dues payabie to the petitioner. In support of his submission, iearned counsel for the petitioner reiies upon the judgment of this Court in the case of Gous ASi Bea Vs. State of C.G. and ors.. 2012 LawSuit (Chhl 163.

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On the other hand, Shri Sao, iearned Government Advocate opposes the prayer made in the writ petition. He submits that present is not a case where the State proposed to make recovery on any aiiegation of misconduct resuiting in flnanciat loss to the Government. Therefore, In such cases, where there is no contempiation of departmentai enquiry of any aiiegation of misconduct but a mere case of recovery under Ruie 65 of the Ruies of 1976, recovery being in the nature of one against misceiianeous advances, RuEe 9 of the Rules of 1976 will have no appiication. in his submission, at the time of retirement of the petitioner, based on the records of services, it was found that at different point of time, varlous misceiianeous advances were given to the petitioner and as they were not properiy accounted for, certain recoveries were found due agalnst the petitioner, against those misceSlaneous advances. Rule 65 authorises and empowers the Government to make such recovery before issuance of any No Dues Certificate. It is oniy when such certificate is issued by adjustment of amount, the retirai dues wouid be payabie to the petitioner. Further submission is that as the dues are recoverable against misceiianeous advances, it is in the fuil Rnow and knowledge of the

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petitioner. Therefore, no opportunity of hearing is required to be afforded particuiarty, when there is no such provision under Rufe 65 or Rule 66 of the Rules of 1976. He submits that adjustment against gratuity of the petitioner has been made to faciiitate eariy disposai and reiease of pensionary benefits found due and payabie to the petitioner on his retirement.

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As far as first submission that an enqulry ought to have been proceeded under Rule 9 of the Ruies of 1976 before any recovery is ordered, i am unabie to accept the same. Present is not a case where on any aiiegation of misconduct, a department enqulry was either initiated or was in contemplation at the time of retirement of the petitioner. it is aiso not the case of the respondent that there is any contempiation of departmentai enquiry on any ailegation of misconduct against the petitioner. it is admitted position that no charge sheet has been issued to the petitioner either before or after his retirement. The provislons of Ruie 9 of the Ruies of 1 976 wiil be attracted only in those cases where the Government Servant is charged of misconduct and when it isaileged that as a resuit of the said misconduct, pecuniary ioss is caused to the Government. Present is not a case of such nature. Therefore, the provisions of Rule 9 will have no application. The contention in that regard is misconceived in law and is therefore rejected.

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The next important issue which requlres determination by this Court is whether any kind of dues, which is recoverable under RuEe 65 or Rule 66

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of the Rules of 1 976 requires any opportunity of hearing. True it is that neither Rule 65 nor Rule 66 contains any specific provision regarding issuance of any show cause notice and opportunity of hearing to the Government Servant in a case where the Government Servant disputes his iiabiiity towards such recovery. However, in the very nature of exercise required to be undertaken, the resuit woufd be that in case, any amount is found due and recoverabie, the Government Servant is required to pay that amount or get it adjusted from amongst the retiral dues payabie to him. Therefore, civii consequences ensue. if that is the consequence which has to foilow in case of recovery under Rule 65 or Rule 66, even if there is no specific provision contained in those ruies, it is implicit in the very nature of power conferred on the Government that the Government Servant shouid be heard before taking any such decision with regard to recovery. The ruie does not prescribe any procedure for that purpose. Therefore, at ieast a notice, informing the Government Servant that certain amount is recoverabie against misceilaneous advances, is required to be gjyen and his repiy is to be obtained. The competent authority is thereaner required to apply its mind to the reply and then take appropriate decision in the matter as to whether any recovery is due and if so, what is the amount due and recoverabie. it is only after such a decision, that recovery under Ruie 65 or Rule 66 couid be made. That is so because, in ail forms of action, where exercise of pubiic power resuits in civii consequences, principies of naturai justice become appiicabie irrespective of whether or not rules enjoin such duty on the repository of the public power. In the

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case of Mohinder Sinah GiiS and another Vs. The ChEef Election Commissioner. New Delhi and others. AiR 1978 S.C.850, it was heid^-

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"76. We have been toid that wherever the Pariiament has intended as hearing it has said so in the Act and the ruies and inferentiaiiy where it has not specificated it is otiose. There is no such sequatur. The siience of a statute has no exclusionary effect except where it flows from necessary impljcation. Articie 324 vests a wide power and where some direct consequence on candidates emanates from its exercise we must read this functional obiigations."

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in a subsequent decision in the case of iViangilal Vs. State of Madhya Pradesh, 2004 (2) SCC 447, it was heid^-

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"10. Even if a statute is silent and there are no positive^{wordsintheActortheRuiesmadethereunder,} there couid be nothing wrong in speiling out the need to hear the parties whose rights and interest are likeiy to be affected by the orders that may be passed, and makihg it a requirement to foliow a fair procedure before taking a decision, uniess the statute provides otherwise. The principies^ofnaturai justice^{mustbereadintounoccupied} interstices of the statute, uniess there is a ciear mandate to the contrary. No form or procedure should ever be permitted^toexciudethe presentation of a iitigant's defence or stand. Even in the absence of a provision in procedurai^iaws, power^{inheresineverytribunal/courtof} a judiciai or quasi-judiciai character, to adopt modajities necessary to achieve requirements of natural justice and fair piay to ensure better and proper discharge of their

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duties. Procedure is mainly grounded on the principles of naturai justice irrespective of the extent of its appjjcation by express provision in that regard in agiven situation. It has always been a cherished principle. Where the statute is siient about the observance of the principles of natural justice, such statutory siience is taken to impiy compliance with the principles of naturai justice where substantiai rights of parties are considerabiy affected. The application of natural justice becomes presumptive, unless found exciuded by express words of statute or necessary intendment. (See Swadeshi Cotton Mills v. Union of Indla {1981) 1 SCC 664}. its aim is to secure justice or to prevent miscarriage ofjustice. Principles of naturai justice do not supplant the iaw, but supplement it. These ruies operate oniy in areas not covered by any iaw vaiidiy made. They are a means to an end and not an end in themselves. The principles of nafural justice have many facets.Two of them are: notice of the case to be met, and opportunity to expiain."

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The principies laid down in the aforesaid decisions cieariy show that wherever civil consequences ensue, the compliance of principles of naturai justice is indispensabie even though there is no specific provision in that regard, in the provision of law under which power is being exercised. Learned State counsel sought to justify the action of recovery without opportunity of hearing on the strength of undertaking (Annexure R/3) said to be submitted by the petitioner on 10/04/05. A bare reading of that undertaking shows that the undertaking is not uniiaterai but biiaterai. The undertaking given by the petitioner is that he undertakes to pay the amount

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that may be found recoverable from him and further that in case, he fails to pay the same within a period of three months from the date of demand, then the amount may be recovered from him as arrears of revenue. The preceding paragraph^{of theundertakingmakeitabundantiyclear thatsuch} undertaking is obtained in a background where certain enquiry is in contemplation. infact, undertaking expressly records consent of the Government to grant the amount of pension and gratuity due to the Government Servant for services rendered by him in antjcipation of completion of enquiry to enabie the Government to determine the amount of any dues that may be found recoverabie from the Government Servant. it further records that it is incumbent upon the Government Servant to pay the amount of said due found recoverabie from him as a resuit of determination in fhe enquiry. Therefore, it is totaljy far fetched statement that such undertaking amounts to consent given by the petitioner for recovery without determination of the amount by the Government. The undertaking cannot be said to be admission of the liabiiity for payment of the amount alleged to be due and recoverabfe but oniy an undertaking that once it is found due and recoverableupon determination in an enquiry, it wouid be payable within a period of three months, viojatlon of which, it wouid be recovered as an arrears of Revenue. It cannot be used as an undertaking to recover the amount without any enquiry from any of the dues, much iess, the amount of gratuity, that too, wiihout affording opportunity of hearing in such enquiry.

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The aforesaid consideration therefore, lead to inevitabje conclusion that the adjustment of the amount of Rs.96,029/- from the gratuity has been made without affording anyopportunity of hearing to the petitioner. The action of the respondents in withholding the adjusted amount of Rs.96,029/from the gratuity, is therefore declared iilegal and unconstitutionai, being vioiative ofArticie 14 ofthe Constitution of Endia.

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As the amount has already been recovered by way of adjustment, the sald amount shail be accounted for in the gratuity fund ofthe petitioner within a period of two months from today. However, in vjew of what has been heid above, the respondents wouid be at iiberty to give show cause notice to the petitioner against the am&unt alleged to be due and recoverabie and may decide the matter after receiving repiy of the petitioner, in accordance with iaw and make appropriate recovery as per Ruie 65 of the Rules of1976.

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if any amount, which has remained pending because of the pendency of this petition inciudin.g finajization of pension case, shaij ajso be paid and entire process shall be compieted without further deiay, as the petltioner has retired in the year 2005.

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The petition is accordingiy aiiowed. No order as to cost.

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Sd/Manindra Mohan Shrivastava Judge

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Deepti

Abdul Saban Khan v. State of Chhattisgarh and Others

Case brief

What is this about?

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Abdul Saban Khan v. State of Chhattisgarh and Others

Case brief

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