Quashed

Nathuni Mian v. the State of Bihar and Ors.

Patna HC20 Oct 2014CWJC/14370/2011

Case brief

AI extract

What is this about?

Petitioner sought quashing of an order directing refund of excess gratuity and pension benefits. Court quashed the order for violation of natural justice as no notice was issued and directed constitutional authority to verify service history before passing a final decision.

What did the court decide?

Impugned order MEMO No. 273 quashed; Competent authority directed to examine petitioner's service history and issue a show cause notice if recovery is still warranted.

Nathuni Mian Vs the State of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14370 of 2011

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====================================================== Nathuni Mian S/O Late Saheb Jan Mian, R/O Vill.- Sakra Faridpur, P.O.Dholi, P..S- Sakra, Distt.- Muzaffarpur .... .... Petitioner/s Versus 1. The State of Bihar 2. The Accountant General. Bihar, Patna 3. The Secretary, Food and Consumer Protection, Bihar, Patna 4. The President-Cum-Chiarman, District Consumer Forum, Motihari, East Champaran .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Sunil Kumar No.III, Advocate. For the Respondent/s : Mr. Prabhat Ranjan, AC to GP 12 For the A.G. : Mr. Prabhat Ranjan, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL JUDGMENT

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3 20-10-2014 Heard learned counsel for the parties as with regard to

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the following relief prayed in this writ application :

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"….. for quashing the order passed by respondent no. 4 vide Memo No. 273 dated 18.04.2011 whereby and whereunder directed to the Petitioner to deposit excess paid amount in treasury which was paid in Gratuity, Earn Leave and of other heads as the period of Service spent in Corporation have been discarded out of the period of Service spent in Government service."

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Learned counsel for the petitioner, in support of the

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aforementioned prayer, has submitted that the impugned order which seeks to delete/deprive the petitioner's length of service rendered by him in the Bihar State Food & Civil Supplies Corporation (hereinafter referred to as 'the Corporation'), for its being computed for payment of post retirement benefit, is basically bad and illegal because firstly the petitioner had not been given any notice when he had retired in the year 2001 and

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Patna High Court CWJC No.14370 of 2011 (3) dt.20-10-2014

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secondly, the said order has been passed in violation of principle of natural justice. He has also relied on two unreported orders of this Court. First one is dated 31.08.2000 in C.W.J.C. No. 12048 of 1998 ( Prem Prakash vs. The State of Bihar & Ors ) and the other is dated 23.03.2009 in C.W.J.C. No. 8860 of 2002 ( Shiv Kumar Prasad vs. The State of Bihar & Ors. ).

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Learned counsel for the State, on the other hand, has sought to defend the impugned order by pointing out that such decision of the competent authority, resulting into the impugned order, is based on an order of the Accountant General dated 22.09.2010 whereby and whereunder all the Chairman of the District Consumer Forum were directed not to compute the length of service rendered in the Corporation for the purpose of payment of retirement benefits. He has also referred to the judgment of the Apex Court in the case Chandi Prasad Uniyal & Ors. vs. State of Uttarakhand & Ors. reported in (2012) 8 SCC 417 , to contend that there is no question of any fraud or misrepresentation because if a Government servant is not entitled to certain payment from the public fund, he will be bound to refund the same.

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In the considered opinion of this Court, on the basis of the materials on record filed by the petitioner and not at all controverted by the respondents by filing a counter affidavit, the issue, which is to be determined in this case, would be as to

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whether the petitioner could be subjected to any sort of recovery, as has been sought to be made by the impugned order, without even giving any notice and/or opportunity of hearing to the petitioner. The petitioner, in this regard, has made a categorical averment that no notice and/or opportunity of hearing was given to the petitioner before passing of the following order:

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^^dk;kZy; v/;{k] ftyk miHkksDrk Qksje] eksfrgkjh Kkikd 273 ft0 Qks0&eksfrgkjh] fnuk a a d 18-4-11

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izfrfyfi Jh uFkquh fe;k a s/o Lo0&lkgscxku fe a ;k xzke&ldjk Qjhniqj iks0&<ksyh Fkkuk&ldjk ftyk eqtIQjiqj dks ikj i`"V es a l a nfHkZr fo"k; vUrxZr vuikyukFkZA

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KkrO; gS fd vkidh lsok dh fxurh es a fuxe dh lsok vof/k dks ofpr j[kk x;k gS Qyr% vkids ftEes miknku ,o a a vU; en dh jkf'k ns; gS vknsf'kr fd;k tkrk gS fd miknku mikftZr vodk'k ,o a vU; en dh vfrfjDr jkf'k rqj a r dks"kkxkj es a tek djs a A x.kuk gsrq rqj a r dk;kZ;y ls lEidZ djs a A

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g0@&

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v/;{k ftyk miHkksDrk Qksje eksfrgkjhA

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As would be evident, the petitioner was directed to

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refund the excess amount of Gratuity, Leave Encashment and other retirement benefits, which will be definitely by way of penal order of recovery from the petitioner.

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Admittedly, no notice and/or opportunity of hearing to the petitioner was given, who, in fact, had already retired some ten years back in the year 2001 whereas the impugned order has been passed on 18.04.2011. Thus, the impugned order, being in violation of the principle of natural justice, cannot be sustained either on fact or in law.

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Patna High Court CWJC No.14370 of 2011 (3) dt.20-10-2014

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It is true that the Accountant General, by its letter

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dated 22.09.2010, had issued the directions to all the Chairman of

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the District Consumer Forum, which reads as follows:

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^^ys[kkdkj ¼ys0 ,o g0½ dk dk;kZy;] fcgkj] iVuk a

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CE OF THE ACCOUNTANT GENERAL (A&E), BIHAR,

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PATNA

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i=kd is a a 'ku 16&1239 fnukd a Dated 22.9.10 lsok es a ]

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v/;{k] lHkh ftyk miHkksDrk l a j{k.k Qksje eqrhgkjh ¼fcgkj½A

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fo"k;& fuxe es a dh xbZ lsok is a 'ku iznk;h ugh a ekudj l a lksf/kr is'ku iznk;h a lsok ds lkFk lsok iqLr Hkstus ds l a c/k es a a A

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egk'k;]

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mi;qZDr fo"k;d ljdkj ds l a ;qDr lfpo [kk| ,o a miHkksDrk l a j{k.k foHkkx ds i=k a d 4860 fnuk a d 17-11-09 ,o a funs'kd [kk| ,o a miHkksDrk l a j{k.k foHkkx fcgkj ljdkj ds i=k a d fnukd dze'k% ,l 2 ch A 36@2010] 3217 fnuk a d 272010 rFkk 4077 fnukd 14-7-10 dh vksj vkidk fuft /;ku vkd"V djrs gq, a dguk gS fd mDr i= ds }kjk bl dk;kZy; Li"V funs'k fn;k x;k gS fd oSls ftUgs a miHkksDrk Qksje es a dk;Zjr ljdkjh lsod ftudh fuxe dh lsok dks ekurs gq;s is a 'ku@minku vkfn iwoZ es a izkf/kdr fd;k x;k gS fcgkj is a 'ku fu;ekoyh ds fu;e 5 ds vuqlkj is a 'ku iznk;h lsok ekus tkus ;ksX; ugh a gSA bl izdkj fcgkj is a 'ku fu;e 58 ds vuqlkj Li"V gS fd jkT; [kk| fuxe es v/khu dh xbZ lsok is a 'ku iznk;h ugh a gS ysfdu foHkkxh; Lohdfr ds vkyksd es a dqN lsik fuor@er deZpkfj;ks a ds i{k fuxe dh lsok tksM+rs gq, is a 'ku@miknku :ik a rj.k izkf/kdr dh xbZ gS ftlds l a 'kks/ku ,o a vf/kdk; jkf'k dh olwyh dh tkuh gSA

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vr% vkils vuqjks'k gS fd vkids vf/kuLFk oSls lsok fuor dehZ ftuds es a fuxe dh lsok ekurs gq, is a 'ku vkfn dh Lohdfr fn;s tkus ds QyLo:i is a 'ku@miknku iwoZ es a izkf/kdr dj nh xbZ gS dk lsok iqLr ekeys dh leh{kk dj vki Lohdfr@e a rO; ds lkFk vfoy a c Hksth tk; rkfd bl fn'kkk es a vko';d dk;Zokgh dh tk ldsA d`i;k bls izkFkfedrk nh tk;A

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fo'oklHkktu

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g0@&

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ojh; ys[kk vf/kdkjh] fcgkj] iVukA**

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The Accountant General, being the ultimate

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authority, to authorize pension and other retirement benefit of a Government servant, if it had found certain wrong practices being followed in the calculation of the length of service rendered in Corporation, it had definitely a power to direct the controlling authorities to scrutinize the claim for payment of retirement benefit strictly in accordance with law but then the onus was still on the controlling authority including the Chairman of the District

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Consumer Forum to pass any order only after following the principle of natural justice. That having been not done, the order of the Accountant General dated 22.09.2010 cannot be utilized in the sole justification of the impugned order as quoted above.

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As a matter of fact, the petitioner also has not given any detail of service, save and except, that he had been appointed by the State Government as Paldar on 01.05.1967 and had retired from the Government service on 31.01.2001. Not a word has been said as to when and under what conditions the petitioner was sent to the Corporation. This also has not been stated as to whether the petitioner was a permanent Government servant while appointed and working as a Paldar pursuant to his appointment dated 01.05.1967 or he was holding a temporary appointment. There will be world of difference of an employee who was working temporarily in the Government service and if his services were ultimately handed over to the Corporation in that capacity was eventually absorbed in service of Corporation.

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In such an event, the past service rendered in the State Government on temporary basis can not be counted for the purpose of pension/Gratuity in terms of Rule 58 of the Bihar Pension Rules. It is in fact only for a permanent Government servant that if he continues in the State Government service and is later on sent on deputation to the Corporation that he still remains

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a Government servant, would be entitled to the benefit of the retirement benefit by computing of his past service.

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As noted above, due to lack of details either in the writ application or non-availability of the counter affidavit, this Court would find it difficult to decide this issue conclusively.

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Learned counsel for the State, however, is correct in relying on the judgment of the Apex Court in the case of Chandi Prasad Uniyal (supra), but then there also an exception has been carved out that such action of recovery cannot be taken against a Government servant, who had already retired.

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The reliance placed by the learned counsel for the petitioner, on an unreported judgment in the case of Prem Prakash (supra), is also wholly misconceived because the petitioner of that case (Prem Prakash) was a Manager in the Bihar State Dairy Development Corporation which was in fact a Company within the meaning of Section 617 of the Companies Act, 1956 and the Government had taken a conscious decision to abolish the Corporations by segregating the employees into three categories in which the first category of the employees of the Corporation were sought to be absorbed in any other Government department and for them the past service of Corporation was sought to be counted for. The second category of the employees of the Corporation were such, who were sought to be absorbed in the

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service of the Bihar State Cooperative Milk Federation (COMFED) and the last were such whose services were to be terminated by giving them the benefit of Industrial dispute Act.

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That, however, is not the case of the petitioner of the present case because he appears to have been ultimately absorbed in the service of the Corporation without there being any stipulation of counting his past service rendered in the State Government. This Court, therefore, would find it difficult to issue any direction in the light of the judgment of this Court in the case of Prem Prakash (supra).

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Coming to the facts of the case of Shiv Kumar Prasad (supra), it would be found that the issue was only confined to payment of Leave Encashment. The Leave Encashment of an employee of the Corporation, who was sent to the District Consumer Forum, being controlled by Food and Civil Supplies Department, will be altogether different. It does not appear from the facts recorded in the order dated 23.03.2009 as to whether Shiv Kumar Prasad was also, alike the petitioner, initially appointed in the State Government and later on sent to the Corporation and from Corporation again to the District Consumer Forum. Thus, whatever has been observed by way of finding recorded in the case of Shiv Kumar Prasad (supra) also cannot be made ipso facto applicable to the facts of the case of the petitioner.

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Having thus regard to the fact that the impugned order has been passed without following the principle of natural justice, this Court would quash the same (Annexure-1) and direct the competent authority to examine the service history of the petitioner. If it is found that the petitioner's appointment was made in the Corporation and his past service in the State Government were not to be in any way computed for the purpose of pensionary benefits, he would proceed to abide by the decision taken by the office of the Accountant General as quoted above.

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If, on the other hand, it is found that the petitioner was a permanent Government servant, while holding the post of Paldar, and actually his service were sent to the Corporation in the administrative exigency of the State Government and later on from Corporation, he was sent to District Consumer Forum again under the administrative exigency and not on his own request, his entire length of service would qualify for the purpose of payment of Gratuity and other retirement benefits.

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All these aspects, therefore, will require a detailed enquiry and if the competent authority, on the basis of the same, comes to a conclusion that the petitioner is still liable to refund the excess amount of Gratuity, Leave Encashment etc., he will issue a show cause notice to the petitioner and the petitioner will have all the right to file his reply to such show cause notice whereafter a

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final decision will be taken in accordance with law keeping in view the observation made by the Apex Court in the case of Chandi Prasad Uniyal (supra).

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With the aforementioned observation and direction,

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this writ application is disposed of.

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(Mihir Kumar Jha, J)

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Patna High Court Dated 20th October 2014 NAFR/Sujit/-

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Nathuni Mian v. the State of Bihar and Ors.

Case brief

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Nathuni Mian v. the State of Bihar and Ors.

Case brief

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