J.P. Khantwal vs State of Chhattisgarh and Others

Pritinker Diwaker, J.—With the consent of the Counsel for the parties the matter is heard finally.

Grievance of the petitioner is that he retired as Assistant Superintendent from the office of Deputy Director, District Handlooms Office, Raipur (respondent No. 3) on 28-2- 2003, after serving the department for about 37 years. After retirement the department had fixed the anticipatory pension of the petitioner as Rs. 2,511 per month. However, to the utter surprise of the petitioner even dated orders of 20-12-2006 (Annexures P-7 and P-8) were served upon him by which his pension was stopped and recovery of Rs. 4,80,667 was ordered. The petitioner has also challenged the order dated 11-5-2006 (Annexure P-9) showing the details of recovery to be made from the petitioner which according to the petitioner has not been served on him.

Main contention of the Counsel for the petitioner is that vide order 1 dated 18-4-1983 (Annexure P-3) the petitioner was granted exemption from passing Hindi Typing Test and on the same day another order (Annexure P-13) was passed by which the petitioner was granted pay increment from 1978 to 1983. His further contention is that the impugned orders dated 20-12-2006 (Annexures P-7 and P-8) and order dated 11-5-2006 (Annexure P-9) have been passed behind the back of the petitioner without giving an opportunity of hearing. His contention is that the benefit of pay increment was granted to the petitioner by virtue of order dated 18-4-1983, and therefore, under no circumstances the same can be withdrawn by the authorities concerned. It is submitted that even after issuance of notice the said benefit cannot be withdrawn from the petitioner because he was not at fault at any stage and had earned the said benefit of pay increment by virtue of a legal and valid order dated 18-4-1983. In support of his submission reliance has been placed on the decision of the Supreme Court in the matter of Kerala State Road Transport Corpn. Vs. K.O. Varghese and Others, , in which it has been held as under:

From the aforesaid analysis three things emerge:-- (i) that pension is neither bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to the statute, if any, holding the field, (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social-welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for employers on an assurance that in their ripe old age they would not be left in the lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the emoluments earlier drawn. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement. That is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.

In its strict sense a pension is not a matter of contract, and is not founded on any legal liability, it is a mere bounty or gratuity "springing from the appreciation and consciousness of the sovereign", and it may be given or withheld at the discretion of the sovereign. It may be bestowed on such person and on such terms as the law-making body of the Government prescribed, and it is, at the most, an expectancy granted by the law. The term "pension" has been compared and distinguished from "bonus", "compensation", "profits" and "retirement payment". A pension fund is to be distinguished from an annuity fund derived in part from voluntary contributions under a statutory option to contribute or refrain from contributing.

It is to be noted that in certain countries wrongful withholding of pension money has been made a criminal offence and it has been observed in some of the Western Countries that the federal statute making the wrongful withholding of pension money a criminal offence must be strictly construed. The purpose of the statute, it was held, is to protect the pensioner against fraud until the'' unconditional payment of the money to him.

Further reliance is placed on the decision of the Apex Court in the matter of Sahib Ram Vs. State of Haryana and Others, , in which it has been held as under:

However, it is not on account of any misrepresentation made by the appellant that the benefit of higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances, the amount paid till date may not be recovered from the appellant.

Further reliance has been placed on the decision of this Court in the matter of Vidyadhar Tiwari v. State of C.G. and Ors. reported in 2006 (1) M.P.H.T. 105 (CG), in which it has been held that for the excess payment if any, made to the petitioner, when he was not at fault and the amount received by him might have been used by adjusting himself accordingly treating the same as his salary. At this stage, direction for recovery of the alleged excess amount from the pensionary benefits of the petitioner will not be just and proper.

On the other hand, Counsel for the respondents/State submits that benefit of granting exemption from passing the Hindi Typing Test was wrongly granted to the petitioner, and therefore, he is not entitled to derive any benefit from the same. It is submitted that once the basic order granting benefit to the petitioner is wrong then the Government was not liable to give any show-cause notice to the petitioner before passing the order impugned and thus according to him the recovery as ordered is strictly in accordance with law.

Heard Counsel for the parties and perused the material available on record.

Perusal of the record reveals that by order dated 18-4-1983 (Annexure P-3) passed by the Directorate of Handlooms, the petitioner was granted exemption from passing the Hindi Typing Test and in pursuance of the said order he was sanctioned the annual pay increment. Thus, by no stretch of imagination the petitioner can be said to be at fault, and therefore, the order directing the recovery of the excess amount paid to the petitioner is not legally permissible.

Thus, in view of the aforesaid facts and legal position of the case, this Court is of the considered opinion that the orders impugned (Annexures P-7, P-8 and P-9) suffer from gross illegality, and therefore, they are liable to be set aside.

As a result, the petition is allowed. Orders impugned are hereby set aside. Petitioner shall be entitled for all the consequential benefits.