Mata Prasad vs State Of MP

This petition under Article 226 of the Constitution of India has been filed seeking the following relief(s):-

1) The impugned orders dated 25-5-2019 (two counts) as Annexure P-1 and Annexure P-2 may kindly be set aside.

2) Any other relief, which this Hon'ble Court deems fit in the facts and circumstances may also kindly be granted.

3) Cost of the petition may kindly be awarded and penal cost to the tune of Rs 10,00,000/- may kindly be imposed on respondent jointly and severally.

The controversy in the present case revolves in a very narrow field.  The petitioner was working as Head Constable in the police department and after attaining the age of 60 years, he was retired from service w.e.f. 31-7-2017.  The petitioner made a representation that since, the age of superannuation has been enhanced from 60 years to 62 years, therefore, he may be allowed to continue to work till attaining the age of 62 years. It appears that the respondents thereafter rectified their mistake and allowed the petitioner to submit his joining on 24-8-2018. Since, the nature of period from 1-8-2017 till 23-8-2018 was not adjudicated, therefore, the petitioner filed a representation dated 17-9-2018 for adjudication of the said period as well as for the payment of his salary for the said period. By order dated 25-5-2019 (Annexure P/1) it was directed that as the age of superannuation has been enhanced from 60 years to 62 years and the petitioner has submitted his joining on 24-8-2018, therefore, he must return the total amount of Rs. 11,00,717/- which was paid to him as retiral benefits after attaining the age of 60 years and by another order dated 25-5-2019 (Annexure P/2), the period of 388 days, i.e., from the date of initial superannuation till his rejoining was adjudicated and from 1-8-2017 to 22-6-2018 i.e., 326 days were treated to be on half pay leave, from 23-6-2018 to 1-8-2018 i.e., 40 days on unauthorized absence and from 2-8-2018 till 23-8-2018 i.e., 22 days as earned leave.

Challenging the orders passed by the respondent no. 3, it is submitted by the Counsel for the petitioner, that since, the petitioner was not allowed to serve, therefore, the order dated 25-5-2019 by which the period has been adjudicated is bad in law. Further it is submitted that the another order dated 25-5-2019, by which the petitioner has been directed to refund Rs. 11,00,717/- is bad in law. It is further submitted that the petitioner was never on unauthorized leave. It is submitted that the case of the petitioner is covered by F.R. 56(3) of Fundmental Rules. The Counsel for the Petitioner has relied upon the judgments passed in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (Deed) and others reported in (2013) 10 SCC 324, Suresh Chand Pandya Vs. State of M.P. reported in (2009) 1 MPLJ 81, Mahesh Prasad Dwivedi Vs. District Co-operative Central Bank Ltd., Jabalpur by order dated 5-8-2013 passed in W.P. No. 21828 of 2011(s) (Principal Bench).

Per contra, the Counsel for the State has supported the orders passed by the respondent no.3. It is submitted that since, the petitioner has now stood retired on 31-7-2019 after attaining the age of 62 years, therefore, no action has been taken on order dated 25-5-2019 (Annexure P/1) by which he was directed to return Rs. 11,00,717/-. It is further submitted that the petitioner had made a representation on 23-7-2018 and action was taken on the said representation immediately and was allowed to rejoin his services by order dated 23-8-2018.

Heard the learned Counsel for the Parties.

The following dates are important for decision in the matter :

31-7-2017 : The petitioner stood retired on attaining the age of 60 years.

The petitioner was paid Rs. 11,00,771/- i.e.,

(i) Gratuity                                            : 6,08,399/-

(ii) Insurance                                         : 1,54,444/-

(iii) Encashment of earned leave             : 3,37,763/-

24-8-2018 : The petitioner was allowed to submit his joining as he was entitled to continue till attaining the age of 62 years.

23-7-2018 : Representation made by the petitioner i.e., after one year of his retirement (As claimed by the respondents in their return and not controverted by the petitioner by filing rejoinder)

25-5-2019 : The period of 388 days was adjudicated

25-5-2019 : The petitioner was directed to refund Rs. 11,00,771/- which was never done by the petitioner.

In the return, the respondents have taken a specific stand that the petitioner was paid his anticipatory pension after his retirement, which has not been disputed by the petitioner. It is further submitted that since, the order dated 25-5-2019 (Annexure P/1) has not been acted upon, therefore, no prejudice has been caused to the petitioner.

Thus, from the above mentioned facts, it is clear that after his initial retirement in the year 2017, the petitioner had enjoyed his anticipatory pension as well as also enjoyed an amount of Rs. 11,00,771/- which was paid to him under different heads. Had he not retired in the year 2017, then neither he would have received the pension, nor an amount of Rs. 11,00,771/-. Further it is the contention of the respondents that after having retired on 31-7-2017, the petitioner made a representation on 23-7-2018 and immediately thereafter he was permitted to join the service on 24-8-2018. The petitioner, by filing his rejoinder has not controverted the submission of the respondents that the petitioner made the representation on 23-7-2018. Even in the writ petition, the petitioner has not disclosed the dates on which he had made representations against his retirement, nor has filed a copy of any such representation. Thus it is clear that the petitioner also kept quite for a considerable long time and made the representation for the first time on 23-7-2018 i.e., after one year of his initial retirement. Thus, it is clear that not only the petitioner had received his anticipatory pension after his initial retirement, but also received and enjoyed an amount of Rs. 11,00,771/- which was never refunded by the petitioner. Thus, it is clear that atleast the petitioner has enjoyed the interest on the amount of Rs. 11,00,771/-for a period of two years i.e., from 31-7-2017 till 31-8-2019. Further, the respondents in their return have pleaded that the order dated 25-5-2018 (Annexure P/1) has not been acted upon, and since, the petitioner has now retired therefore, this order has become infructuous, as the petitioner was already paid his anticipatory pension and amount of leave encashment. Para 5 of the return reads as under :

That, the petitioner eventually on 31-7-2019 stood retired after attaining the age of 62 years. That since, the petitioner is already retired on 31-7-2019, therefore, the order dated 25-5-2019 (Annexure P/1) rendered infructuous and it is also pertinent to note herein that the department has also not taken any action in pursuance thereto.

Accordingly,  this  petition  is  hereby  Dismissed,  with  an observation that if the respondents initiate any action for recovery of amount of Rs. 11,00,771/-, then the petitioner, shall have the liberty to file an application for restitution of this petition.