M.C. Agrawal vs M.P. Warehousing and Logistics Corporation and Others

Sujoy Paul, J.—The petitioner while working as Junior Superintendent attained the age of superannuation on 30.11.2010. The respondents have withheld Rs. 3,20,000/- by issuance of Annexure P-1. It is contended that retiral dues to the tune of Rs. 3,20,000/- are withheld by the respondents. This was done on the pretext that certain matters are pending before NAFED. Reliance is placed on communication dated 14.3.2011 (Annexure P/4) and 25.5.2011 (Annexure P/5). In these letters, it is mentioned that reduction of weight is permissible and for that no recovery be made. It is further contended that withholding of amount is without authority of law and runs contrary to the principle of natural justice.

Shri B.S. Bhadoriya opposed the relief. He contends that the said amount was rightly deducted by the respondents because the loss occurred to the Corporation was because of conduct of the petitioner. He relied on other paragraphs of the return.

I have learned counsel for the parties and perused the record.

In the opinion of this Court, the petitioner stood retired on 30.11.2010. Thereafter on 7.4.2011, it is communicated that Rs. 3,20,000/- have been recovered. Naturally, this has been recovered from the retiral dues only. This is settled in law that retiral dues are not bounty.

This Court in a recent judgment, reported in Bhaskar Ramchandra Joshi Vs. State of M.P. and Others, (2013) ILR (MP) 1907 : (2013) LabIC 4529 : (2013) 4 MPHT 314 : (2013) 4 MPJR 297 : (2013) 4 MPLJ 35 opined about retiral dues as under:--

"10. The Apex Court on different occasions had considered the scope and ambit of property. In H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Others Vs. Union of India and Another, AIR 1971 SC 530 : (1971) 1 SCC 85 : (1971) 3 SCR 9 opined that Privy Purse payable to ex-rulers is property. In Nagraj, K v. State of A.P., AIR 1985 SC 553 , Apex Court opined that right of person to his livelihood is property which is subject to rules of retirement. In State of Kerala and Others Vs. M. Padmanabhan Nair, AIR 1985 SC 356 : (1985) LabIC 664 : (1985) 1 LLJ 530 : (1984) 2 SCALE 959 : (1985) 1 SCC 429 : (1985) 2 SCR 476 : (1985) 1 SLJ 106 : (1985) 17 UJ 764 the Apex Court opined that right of pension is property under the Government service Rules. In Madhaorao Phalke Vs. The State of Madhya Bharat, AIR 1961 SC 298 : (1961) 1 SCR 957 and State of Madhya Pradesh Vs. Ranojirao Shinde and Another, AIR 1968 SC 1053 : (1968) 3 SCR 489 , the Apex Court opined that property in the context of Article 300-A includes ''money'', salary which has accrued pension, and cash grants annually payable by the Government; pension due under Government Service Rules; a right to bonus and other sums due to employees under statute. This view was also taken in Deokinandan Prasad Vs. The State of Bihar and Others, AIR 1971 SC 1409 : (1971) 1 LLJ 557 : (1971) 2 SCC 330 : (1971) SCR 634 Supp . Bombay High Court in the case reported in Shapoor M. Mehta Vs. Allahabad Bank, (2012) 2 ALLMR 775 : (2013) 1 BomCR 176 : (2012) 114 BOMLR 1210 : (2012) 4 LLJ 429 : (2012) 3 MhLj 126 opined that retiral benefits including pension and gratuity constitute a valuable right in property. In Deokinandan (supra) Apex Court opined as under:

"(i) The right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no powers to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order denying the petitioner right to receive pension affects the fundamental right of the petitioner under Article 19(1)(f) and 31(1) of the Constitution and as such the writ petition under Article 32 is maintainable."

In the light of aforesaid legal position, it is crystal clear that right to get the aforesaid benefits is constitutional right. Gratuity or retiral dues can be withheld or reduced only as per provision made under M.P. Civil Services (Pension) Rules, 1976. In the present case, there is no material on record to show that respondents have taken any action in invoking the said rules to stop or withhold gratuity or other dues."

The Apex Court in State of Jharkhand and Others Vs. Jitendra Kumar Srivastava and Another, (2013) 9 AD 48 : AIR 2013 SC 3383 : (2014) 117 CLT 945 : (2013) 139 FLR 74 : (2013) 11 JT 351 : (2013) LabIC 3674 : (2013) 5 LLN 91 : (2013) 4 LLN 56 : (2013) 10 SCALE 310 : (2013) 12 SCC 210 : (2013) 4 SCT 429 : (2013) 114 SLJ 370 : (2013) AIRSCW 4749 : (2013) 6 Supreme 5 , has taken the same view. Thus, the aforesaid judgments make it clear that the retiral dues can be withheld only as per due process.

During the course of argument, Shri Bhadoriya was asked to apprise the Court about the enabling provision, which empowers the employer to withhold/recover the said amount. He placed reliance on Clause 22 of M.P. State Warehousing Corporation Staff Regulations, 1962. The said provision reads as under:--

"22. Imposition of Penalties.

Any employee committing a breach of the regulations of the Corporation or being guilty of negligence, inefficiency or indolence in performance of his duties or knowingly doing anything detrimental to the interests of the Corporation or in conflict with its instructions or committing a breach of discipline or being guilty of any other act of Misdemeanor or is convicted of a criminal offence shall be liable to the following penalties-

(a) Fine

(b) Censure

(c) Delay or stoppage of increments or promotion

(d) Reduction to a lower post in his permanent class or to a lower stage in his incremental scale.

(e) Recovery from pay of the whole or part of pecuniary loss caused to the Corporation by the employee.

(f) Removal

(g) Dismissal

Provided that the penalty of fine shall be imposed on employees of class IV only.

The power to impose a penalty under sub-regulation (1) shall be exercised:

(i) In the case of class 1 employees other than Managing Director, in respect of all penalties by the Board of Directors, and in the case of class II employees in respect of all penalties except the penalty as specified in Clauses (b) and (c) of Sub-Regulation (1) by the Executive Committee subject to ratification by the Board.

(ii) In the case of class III and class IV employees, in respect of all penalties, and in the case of Class II employees, penalties as specified in clause (b) and (c) of Sub-Regulation (1) by the Managing Director.*

*[Regional Managers to act as appointing authority, disciplinary authority and terminating authority in their Region for class IV staff. Authority: Board of Directors'' meeting Resolution No. 14 Dt. 4.7.81.]

(iii) In the case of the Managing Director in respect of all penalties except the penalties specified in clause (f) and (g) of Sub-Regulation (1) by the State Government, in consultation with the Central Warehousing Corporation.

(iv) No punishment other than that specified is Sub-Regulation (1)(a), (1)(b), and (1)(c) shall be imposed on any employee without formal charges being framed against him and without giving him an opportunity for tendering an explanation in writing and cross-examining the witness against him, if any, and of producing defence.

(v) Notwithstanding anything contained in these regulations, punishment to employee on deputation from the State Government or Government Institution or Cooperative Societies shall be imposed in accordance with the rules and procedure laid down in this behalf in their parent service."

Shri Bhadoriya submits that as per Clause 22(1)(e), the recovery is justifiable.

I do not see any merit in the said contention. The said clause deals with "recovery from pay". It does not deal with recovery from retiral dues. The question of recovery from pay does not arise in the present case because the petitioner stood retired in 2010. He was not getting any pay after retirement. Thus, the respondents have made recovery/withheld payment from retiral dues. No enabling provision is brought to the notice of this Court, which empowers the respondents to withhold said amount after retirement. More so, when no enquiry was conducted. The petitioner was not given any opportunity as per principle of natural justice. The Apex Court in State Bank of India Vs. A.N. Gupta and Others, (1997) 8 JT 336 : (1997) 6 SCALE 303 : (1997) 8 SCC 60 : (1997) 4 SCR 383 Supp : (1998) 1 UJ 28 and Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and Others, AIR 1999 SC 1841 : (1999) 88 CLT 564 : (1999) 82 FLR 143 : (1999) 3 JT 53 : (1999) 1 LLJ 1236 : (1999) 2 SCALE 545 : (1999) 3 SCC 666 : (1999) SCC(L&S) 804 : (1999) 2 SCR 354 : (1999) AIRSCW 1442 : (1999) 4 Supreme 9 , opined that in absence of any enabling provision neither enquiry can be conducted after retirement nor any punishment can be imposed.

Thus, I find no reason to deprive the petitioner from the amount of Rs. 3,20,000/-. Resultantly, the impugned order dated 7.4.2011 (Annexure P/1) to the extent it deals with recovery of Rs. 3,20,000/- is set aside. The respondents are directed to refund the said amount to the petitioner with 12 per cent interest within three months.

Petition is allowed. No costs.