Bilson Kumar Kujur Vs State of Chhattisgarh

Heard Mr. Anup Majumdar and Mr. Saket Pandey, learned counsel for the petitioner as well as Mr. Ajeet Singh, learned Government Advocate for the respondent who is appearing on advance copy.

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By way of this writ petition, the petitioner has prayed for following reliefs:

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“10.1.That, the Hon'ble Court may kindly call for records pertaining to service records of the petitioner.

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10.2. That the impugned memorandum dated 31.05.2022 and subsequent proceedings for adjustments of residue amount from petitioners pension and gratuity account, may kindly be set aside and quashed by the Hon'ble Court, in the interest of justice.

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10.4. That, the Hon'ble Court may kindly direct the respondents for providing no objection / no dues certificate to the petitioner for release of entire pensionary benefits and gratuity amount with interest and deducted funds.

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10.5. That, any other relief, which this Hon'ble Court may deemed just and fit in facts and circumstances of the case.”

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Brief of the fact is that the petitioner was posted as Executive Engineer and In Charge Sub Divisional Officer (Sub Division, Kunkuri, District Jashpur). It is alleged by the respondent authorities that, petitioner along with his Sub Engineer has wrongly released payments to contractors as miscellaneous

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advances without preparing test reports of raw materials in year 2002, 2003 & 2004. The amount of Rs. 12,06,568/-, is made outstanding in cash register due to non adjustment from account of petitioner. The petitioner after his retirement is tried to be held solely liable for the miscellaneous advances of year 2002, 2003 & 2004 with principle motive of harassment. Thereafter, vide memorandum dated 31.05.2022, Executive Engineer, Jashpur, informed the Engineer In-Chief, with regard to outstanding amount in cash register for miscellaneous advance supposed to be adjusted and recovered from the petitioner. It was informed the same amount of Rs. 12,06,568/- will be adjusted from the petitioner in ratio of allotment, a separate proceeding will be drawn against the petitioner. The petitioner preferred an application under Right to Information, Act on 20.06.2022, for providing the information and documents in relation to letter dated 31.05.2022, in which it is stated that amount of Rs.12,06,568/which is shown as residue in cash register without adjustment for miscellaneous advance, that is in name of petitioner for adjustment from his retiral dues. The Executive Engineer, Jashpur, preferred a letter dated 06.07.2022 to the Engineer in Chief, stating details with regard to no objection certificate and deducted amounts from accounts of petitioner. It was informed vide letter dated 06.07.2022, that petitioner was posted from 07.07.2010 to 30.06.2011 as Executive Engineer, which was wrongly typed as 07.07.2020 to 30.06.2022 , it was proposed for

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correction. The Executive Engineer, also informed with regard to adjustment of residue amount of miscellaneous advance shown in cash register which is supposed to be recovered from the petitioner. On 10.08.2022, the petitioner was provided the documents in relation to the miscellaneous advance yet to be proposed for debit from pensionary accounts of petitioner. The petitioner was provided 3 letters of years 2002 and 2003, in which it is informed that if test report is not prepared the amounts stated in the letters will be placed in miscellaneous advance payable from petitioner and Sub Engineer, petitioner was posted as In-Charge Sub Divisional Officer, in Kunkuri, Jashpur. Thereafter, on 13.09.2022, the Engineer in Chief, approved the pension amount to the tune of Rs.53,591/-, to the petitioner from 01.08.2022. All of sudden on 22.09.2022, the Superintendent Engineer, Raipur, preferred a letter to the Executive Engineer, District Jashpur, Chhattisgarh, stating Rs. 12,06,568/- to be residue as miscellaneous advance in name of petitioner for accounts of cash register, it was directed by the Superintendent Engineer to the Executive Engineer, to provide entire information with regard to allotment of fund allotted to the project which is shown to be residue in cash register, also it was directed by the Superintendent Engineer, for providing the information regarding adjustment of the residue amount. Vide memorandum dated 09.12.2022, it is informed to the Engineer In Chief, with regard to debit of outstanding miscellaneous advance amount in cash

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register from petitioner, due to payment made by petitioner to contractors in absence of test reports. the Executive Engineer has prayed for allotment of amounts to Chief Engineer vide memorandums dated 26.11.2021, 08.12.2021, 24.11.2021, 24.11.2021 and 23.03.2022. The amounts enumerated in these memorandums are in lieu of payments made by petitioner to contractors without test reports of raw materials. The Executive Engineer has requested for issuing letter of credit, allotment of funds and issuance transfer entry order. The petitioner has preferred various representations for issuance of no dues / no objection certificate, so that his entire pension and gratuity amount with retiral dues can be released to him, still the representation of the petitioner are unheard and as such, the petitioner is facing great hardship.

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Mr. Anup Mazumdar and Mr. Saket Pandey, learned counsel for the petitioner argued that there is no outstanding dues against the petitioner, every thing has been closed. No dues certificate has been issued during his service tenure, the Executive Engineer has written letter to the higher authorities stating about no outstanding dues against the petitioner. After retirement recovery in the shape of dues was ordered by the impugned order which is perse illegal and arbitrary. He has relied upon an order passed by this Court in WPS No.2617 of 2013.

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On the other hand, learned State counsel has opposed the argument advanced by leaned counsel for the petitioner and

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submits that grievances of the petitioner is not covered with the aforesaid judgment, it can only be redressed if the petitioner places relevant document with the authorities, who are competent to decide the dispute.

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I have heard learned counsel for the respective parties at length at this stage, it would be appropriate to refer to the provisions contained in Rules 65 & 66 of the Pension Rules of 1976, which state as under: -

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“65. Recovery and adjustment of Government dues.-(1) It shall be the duty of every retiring Government servant to clear all Government dues before the date of his retirement. (2) Where a retiring Government servant does not clear the Government dues and such dues are ascertainable:-

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(a) an equivalent cash deposit may be taken from him, or

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(b) out of the gratuity payable to him, his nominee or legal heir, an amount equal to that recoverable on account of ascertainable Government dues shall be deducted.

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Explanation.- The expression ‘ascertainable Government dues’ includes balance of house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, over-payment of pay and allowances and arrears of income-tax deductable at source under the Income Tax Act, 1961 (No. 43 of 1961).

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66. Furnishing of surety by retiring Government servant.- (1) (a) If any of the Government dues (other than those referred to in Rule 65) remain unrealised and unassessed for any reasons, the retiring Government servant may be asked to furnish in Form 8 a surety of a suitable permanent Government servant, holding a pensionable post.

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(b) If the surety furnished by him is found acceptable, the grant of his pension and gratuity shall not be delayed.

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(2) (a) If the retiring Government servant is unable or unwilling to furnish a surety, a suitable cash deposit may be taken from him, or such portion of gratuity payable to

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him, as may be considered sufficient may be held over till the outstanding dues are assessed and adjusted.

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(b) The cash deposit to be taken or the amount of gratuity to be withheld shall not exceed the estimated amount of the outstanding dues plus twenty-five per cent thereof.

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(c) Where it is not possible to estimate the approximate amount recoverable from the retiring Government servant the amount of deposit to be taken or the portion of gratuity to be withheld shall be limited to ten per cent of the amount of gratuity or one thousand rupees, whichever is less.

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(3) (a) Efforts shall be made to assess and adjust the recoverable Government dues within a period not exceeding 6 months from the date of retirement of the Government servant and, if no claim is made on Government account against the Government servant within such a period, it shall be presumed that no Government claim excluding claim of house rent and water charges is outstanding against him.

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(b) The Government dues as assessed shall be adjusted against the cash deposit or the amount withheld from the gratuity and the balance, if any, shall be released to the retired Government servant after the expiry of the period referred to in clause (a).

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(c) Where a pensioner has furnished a surety, the surety shall be released after the expiry of the period referred to in clause (a), provided that dues assessed up to that time have been recovered.

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(4) The Government dues which remain unrealised within the period referred to in clause (a) of sub-rule (3) and such other dues, the claim for which is received after that period, shall be recoverable from the retired Government servant through legal procedure :

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Provided that in respect of house rent and water charges, the amount, if any, the claim for which is received after the period of 12 months from the date of retirement of the Government servant shall not be recoverable from the retired Government servant.”

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In view of the above submissions made by learned counsel for the parties as per provisions contained in Rules 65 and 66 of the Pension Rules, 1976 complied with the fact that earlier no

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objection certificate was given to the petitioner stating that there is no outstanding dues against the petitioner and relying upon the judgment passed by the Coordinate Bench in WPS No.2617 of 2013, further considering that the petitioner had already retired from service on 31.07.2022, whereas the impugned memorandum dated 31.05.2022 is issued against the petitioner for adjustment of Rs.12,06,568/- a residue amount, shown in cash register due to petitioner. As such, the amount in question cannot be directed to be recovered without following the prescribed procedure of approaching the civil court of competent jurisdiction. Accordingly, the action of the respondents in making recovery for adjustment of residue amount from petitioners’ Pension and Gratuity account is declared unlawful. Consequently, the order impugned dated 31.05.2022 (Annexure P-1) is hereby set aside and the respondents are directed to pay the entire amount of petitioners’ Pension and Gratuity and all other retiral dues, if outstanding, within 45 days from the date of receipt of a copy of this order. However, the respondents are at liberty to take the recourse of lawful mode to recover the amount, if any, as shown in Annexure P-1.

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The writ petition is allowed to the extent indicated herein-above. No order as to cost(s).

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Sd/- (Amitendra Kishore Prasad) Judge

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Ravi Mandavi

Bilson Kumar Kujur v. State of Chhattisgarh

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Bilson Kumar Kujur v. State of Chhattisgarh

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