Abdul Saban Khan vs State of C.G. and Others

Manindra Mohan Shrivastava, J.—Heard finally with the consent of the parties. In view of the developments during the pendency of the petition, the only issue which requires determination by this Court is whether the respondent could have ordered and adjusted an amount of Rs. 96,029/- from the amount of gratuity payable to the petitioner upon his retirement vide Annexure P/8 impugned in this petition.

Quintessential facts for determination of the short controversy are that the petitioner worked as Sub-Engineer in the department of irrigation (Water Resources) in the State of Chhattisgarh and retired upon attaining the age of superannuation w.e.f. 31/03/05. In the process of clearing ail the dues, the petitioner submitted an application dated 15/03/05 (Annexure P/2) praying for issuance of No Dues Certificate. After about five months, the petitioner submitted another application on 12/09/05 (Annexure P/3) for clearance and release of all the retiral benefits as well as pension. At this stage, the impugned memo dated 22/09/05 was issued to the petitioner informing that an amount of Rs. 96,029/- is recoverable under the head "Miscellaneous Advance". The petitioner, by the aforesaid memo, was asked to give his consent for adjustment of the said amount from leave encashment benefits payable to him on his retirement. The petitioner, however, disputed any liability towards recovery vide his response dated 27/09/05 (Annexure P/4). It is relevant to note that even before that, the petitioner had submitted application vide Annexure P/3 for release of retiral benefits by stating that any pending case relating to recovery against miscellaneous advance be decided.

It appears that on 10/04/05, an undertaking in Form 26 (Annexure R/3) referable to Rule 66 of the M.P. Civil Services (Pension) Rules, 1976 (for short ''the Rules of 1976'') was taken from the petitioner and on that basis, it was assumed that the petitioner has given 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. When the petitioner 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-release of the retiral dues, the petitioner filed petition before this Court, registered as W.P.(S) 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 recoverable, has already been recovered by adjusting the same from the amount of gratuity payable to the petitioner. When this fact was brought to the notice of the Court, the said writ petition was dismissed as having become infructous, with the liberty to challenge the consequential order. Thereafter, the instant writ petition has been filed by the petitioner.

To assail 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, learned counsel for the petitioner submits that impugned action is in violation of principles of natural justice apart from being in violation of provisions contained in Rule 9 of the Rules of 1976. According to learned counsel for the petitioner, the amount could have been recovered only by holding an enquiry in the manner prescribed in Rule 9 of the Rules of 1976 under the authority of the Governor as the petitioner had already retired from Government Service, in his submission, neither any charge sheet was issued to him nor any enquiry was held. Therefore, in the absence of any finding of misconduct, no recovery could be made from the petitioner under the garb of dues against miscellaneous advances. Further submission is that in any case, once the petitioner has not admitted his liability towards any recovery including a recovery against miscellaneous advances, the principles of natural justice obliged the respondents to hear the petitioner against proposed recovery and then only make adjustment against retiral dues payable to the petitioner, in support of his submission, learned counsel for the petitioner relies upon the judgment of this Court in the case of Gous Ali Beg Vs. State of Chhattisgarh and Others,

On the other hand, Shri Sao, learned 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 allegation of misconduct resulting in financial loss to the Government. Therefore, In such cases, where there is no contemplation of departmental enquiry of any allegation of misconduct but a mere case of recovery under Rule 65 of the Rules of 1976, recovery being in the nature of one against miscellaneous advances, Rule 9 of the Rules of 1976 will have no application. 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, various miscellaneous advances were given to the petitioner and as they were not property accounted for, certain recoveries were found due against the petitioner, against those miscellaneous advances. Rule 65 authorises and empowers the Government to make such recovery before issuance of any No Dues Certificate, it is only when such certificate is issued by adjustment of amount, the retiral dues would be payable to the petitioner. Further submission is that as the dues are recoverable against miscellaneous advances, it is in the full know and knowledge of the petitioner. Therefore, no opportunity of hearing is required to be afforded particularly, when there is no such provision under Rule 65 or Rule 66 of the Rules of 1976. He submits that adjustment against gratuity of the petitioner has been made to facilitate early disposal and release of pensionary benefits found due and payable to the petitioner on his retirement.

As far as first submission that an enquiry ought to have been proceeded under Rule 9 of the Rules of 1976 before any recovery is ordered, I am unable to accept the same. Present is not a case where on any allegation of misconduct, a department enquiry was either initiated or was in contemplation at the time of retirement of the petitioner, it is also not the case of the respondent that there is any contemplation of departmental enquiry on any allegation 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 provisions of Rule 9 of the Rules of 1976 will be attracted only in those cases where the Government Servant is charged of misconduct and when it is alleged that as a result of the said misconduct, pecuniary loss 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.

The next important issue which requires determination by this Court is whether any kind of dues, which is recoverable under Rule 65 or Rule 66 of the Rules of 1976 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 liability towards such recovery. However, in the very nature of exercise required to be undertaken, the result would be that in case, any amount is found due and recoverable, the Government Servant is required to pay that amount or get it adjusted from amongst the retiral dues payable to him. Therefore, civil consequences ensue. If that is the consequence which has to follow in case of recovery under Rule 65 or Rule 66, even if there is no specific provision contained in those rules, it is implicit in the very nature of power conferred on the Government that the Government Servant should be heard before taking any such decision with regard to recovery. The rule does not prescribe any procedure for that purpose. Therefore, at least a notice, informing the Government Servant that certain amount is recoverable against miscellaneous advances, is required to be given and his reply is to be obtained. The competent authority is thereafter 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 recoverable, it is only after such a decision, that recovery under Rule 65 or Rule 66 could be made. That is so because, in ail forms of action, where exercise of public power results in civil consequences, principles of natural justice become applicable irrespective of whether or not rules enjoin such duty on the repository of the public power. In the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, 850, it was held -

We have been told that wherever the Parliament has intended as hearing it has said so in the Act and the rules and inferentially where it has not specificated it is otiose. There is no such sequatur. The silence of a statute has no exclusionary effect except where it flows from necessary implication. Article 324 vests a wide power and where some direct consequence on candidates emanates from its exercise we must read this functional obligations.

in a subsequent decision in the case of Mangilal Vs. State of Madhya Pradesh, it was held -

Even if a statute is silent and there are no positive words in the Act or the Rules made thereunder, there could be nothing wrong in spelling out the need to hear the parties whose rights and interest are likely to be affected by the orders that may be passed, and making it a requirement to follow a fair procedure before taking a decision, unless the statute provides otherwise. The principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary. No form or procedure should ever be permitted to exclude the presentation of a litigant''s defence or stand. Even in the absence of a provision in procedural laws, power inheres in every tribunal/court of a judicial or quasi-judicial character, to adopt modalities necessary to achieve requirements of natural justice and fair play to ensure better and proper discharge of their duties. Procedure is mainly grounded on the principles of natural justice irrespective of the extent of its application by express provision in that regard in a given situation. It has always been a cherished principle. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The application of natural justice becomes presumptive, unless found excluded by express words of statute or necessary intendment. (See Swadeshi Cotton Mills Vs. Union of India (UOI), , Its aim is to secure justice or to prevent miscarriage of justice. Principles of natural justice do not supplant the law, but supplement it. These rules operate only in areas not covered by any law validly made. They are a means to an end and not an end in themselves, The principles of natural justice have many facets. Two of them are: notice of the case to be met, and opportunity to explain.

The principles laid down in the aforesaid decisions clearly show that wherever civil consequences ensue, the compliance of principles of natural justice is indispensable 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 unilateral but bilateral. The undertaking given by the petitioner is that he undertakes to pay the amount 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 the undertaking make it abundantly clear that such 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 anticipation of completion of enquiry to enable the Government to determine the amount of any dues that may be found recoverable from the Government Servant, it further records that it is incumbent upon the Government Servant to pay the amount of said due found recoverable from him as a result of determination in the enquiry. Therefore, it is totally 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 liability for payment of the amount alleged to be due and recoverable but only an undertaking that once it is found due and recoverable upon determination in an enquiry, it would be payable within a period of three months, violation of which, it would 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 less, the amount of gratuity, that too, without affording opportunity of hearing in such enquiry.

The aforesaid consideration therefore, lead to inevitable conclusion that the adjustment of the amount of Rs. 96,029/- from the gratuity has been made without affording any opportunity 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 illegal and unconstitutional, being violative of Article 14 of the Constitution of India.

As the amount has already been recovered by way of adjustment, the said amount shall be accounted for in the gratuity fund of the petitioner within a period of two months from today. However, in view of what has been held above, the respondents would be at liberty to give show cause notice to the petitioner against the amount alleged to be due and recoverable and may decide the matter after receiving reply of the petitioner, in accordance with law and make appropriate recovery as per Rule 65 of the Rules of 1976.

If any amount, which has remained pending because of the pendency of this petition including finalization of pension case, shall also be paid and entire process shall be completed without further delay, as the petitioner has retired in the year 2005. The petition is accordingly allowed. No order as to cost.