Ramesh Chandra Gupta vs The State of Madhya Pradesh

Piyush Mathur, J.

The Petitioner has preferred this Petition against the inaction on the part of Respondents in not disbursing to him the entire Retiral Dues including the amount of General Provident Fund (GPF) and Gratuity.

Shri Amit Lahoti, Learned Counsel appearing for Petitioner submits that although during the pendency of the Writ Petition, the Pension has been released to the Petitioner but his Gratuity and GPF amount have yet not been released on the ground stated in the Return of the State Government that an amount of Rs. 2,28,294/- was lying as "Miscellaneous Advance" given to the Petitioner in relation to the pending Projects and since the Petitioner did not deposit the same before his retirement, his Gratuity and G.P.F. has been withheld. Shri Lahoti further submits that advancement of Miscellaneous Advance amount is a common practice prevalent in the Department and Engineers are authorised to utilize this amount in relation to on going Projects of the Department and as such it could not be treated to be one such amount, which was utilized/mis-utilized or misappropriated by the employee/Petitioner for his own individual benefit and based upon such an interpretation, the amount of GPF and Gratuity could have not been withheld by the Department.

Shri Lahoti submits that in an identical case being W.P. No. 742/2006 (S) Khanivalal Gupta v. State of M.P. the State Government has taken a similar stand but has given a different interpretation to the advancement of "Miscellaneous Advance" in the following words:

(5.15) That facts mentioned in para 5.15 of the petition as stated by the petitioner it is submitted that Misc. Advance placed in the name of petitioner has to be cleared ultimately on availability of funds and allotment from the Government but the same will remain continue in the name of the petitioner as Misc. Advance so long as the fund and allotment is made available by the Government.

Shri Lahoti submits that while examining the aforesaid matter in W.P. No. 742/2006 (S), this Court had examined the facts and law and had specifically analyzed the meaning and scope of the term "Miscellaneous Advance" and had found that it is a technical term which provide for advancement of Funds to the Competent Authority for completion of pending Projects, as per the practice of the Department, which could not be described to be any kind of misappropriation of Funds. Relevant paragraph (6) of the Order passed by this Court in W.P. No. 742/2006 (S) on Date 30/08/2007 is quoted herein below:

(6)From the facts of the case it is clear that the petitioner was posted as Executive Engineer at Jaura he had sanctioned payment of Rs. 70 Lacs to a private contractor and the amount was also paid to him. However because there was no allotment from the Government, hence it was shown as miscellaneous advance against the petitioner. The respondent themselves in para 5.15 of the return have stated that as soon as the allotment be made by the Government the amount which was shown against the petitioner be cleared of. It is clear from the fact that it is a technical objection apparently there is no misappropriation of any fund by the petitioner neither any enquiry is pending against him. It is not a case that an amount has to be recovered from the petitioner on account of pecuniary loss. In such circumstance the petitioner is entitled for no objection certificate after his retirement for the purpose of clearance of retiral dues and pension.

Shri Lahoti submits that when the Petitioner has not misappropriated any amount and an amount of Rs. 2,28,294/-was simply found to be lying as "Miscellaneous Advance" which was allegedly given to the Petitioner, during tenure of his service, the same was required to be adjusted in accounts, soon upon receiving relevant sanction/grant from the State Government. He submits that only on the strength of a Letter written by the Executive Engineer, Water Resources Department, Bhind, the amount of Gratuity and GPF were withheld, without holding any enquiry or issuing any Show Cause Notice or by affording an opportunity of hearing. Shri Lahoti submits that after retirement of the Petitioner, no deduction could have been made without obtaining proper sanction/approval of the Governor and without obtaining such an approval/sanction, no action for withholding of Retiral Dues could have been taken to the detriment of the interest of the Petitioner.

Shri Deepak Khot, Learned Government Advocate appearing for Respondents/State submit that since the Executive Engineer, Water Resources Department had found that a miscellaneous amount of Rs. 2,28,294/-is lying in the account of the Petitioner, therefore the Department had withheld the payment of retiral dues for adjusting this amount, from out of the Funds payable to the Petitioner by way of GPF and Gratuity. Shri Khot relied upon Rule 65 of the Madhya Pradesh Civil Services (Pension) Rules, 1976 to justify its action: Rule 65 is quoted hereinbelow;

Recovery and adjustment of Government dues.

(1) It shall be the duty of every retiring Government servant to clear all Government dues before the date of his retirement.

(2) Where a retiring Government servant does not clear the Government dues and such dues are ascertainable

(a) an equivalent cash deposit may be taken from him; or

(b) out of the gratuity payable to him, his nominee or legal heir, an amount equal to that recoverable on account of ascertainable Government dues shall be deducted.

Explanation: 1. The expression "ascertainable Government dues" includes balance of house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, over-payment of pay and allowances and arrears of Income Tax deductible at source under the Income Tax Act, 1961.

I have heard Shri Amit Lahoti, Learned Counsel and Shri Deepak Khot, Learned Government Advocate and perused the record of case.

From the perusal of the pleadings of the parties, as also from a perusal of the documents, it is evident that before making deduction of Rs. 2,28,294/-from out of the payable dues of GPF and Gratuity, the Respondents did not care to issue any Show Cause Notice to the Petitioner and no Enquiry was conducted for ascertaining the liability of the Petitioner for making payment of this amount to the Department. It is also evident from the pleadings of the parties that the action of withholding of G.P.F. and Gratuity was ordered only after the retirement of the Petitioner. It would be relevant to mention that Clause 2 of Rule 9(b) of Madhya Pradesh Civil Services (Pension) Rules, 1976 provide that any outstanding amount against a retired employee can only be deducted or withheld after obtaining proper sanction/approval of the Governor and since no such sanction/approval was taken by the Respondents before withholding retiral dues, the action of respondents seriously violate the mandate reflecting in the Pension Rule and from this view of the matter, withholding of the retiral dues (GPF and Gratuity) would run counter to the Pension Rules.

So far as the applicability of Rule 65 of Pension Rule is concerned, the plain language of the Rule makes it very clear that firstly; the amount should fall into the category of "dues" and secondly; such dues should be specified dues like, house building or conveyance advance or arrears of rent or over-payment of Salary or Allowance etc. as prescribed in the Explanation appended to Rule 65, but it would not include "Miscellaneous Advance" upon not falling into the category of ''dues'', therefore it would be difficult to stretch the scope of Rule 65 to such un-imaginable length and breadth and only for the purpose of searching some source of power for withholding retiral dues of an employee, no such offence could be permitted to be done with an innocently carved out provision of law, by allowing the State Government to commit such an illegality.

Consequently, the Writ Petition succeeds and resultantly it is allowed. The action of State Government of withholding of G.P.F. And Gratuity or making deduction of Rs. 2,28,294/-out of the GPF and Gratuity of the Petitioner is hereby quashed and the Respondents are directed to release the entire amount of GPF and Gratuity and all other Retiral Dues to the Petitioner, within a period of Three Months from the date a Certified Copy of this Order is presented before the Respondents. It is further directed that in case, the Respondents make any default in releasing payment of the amount of GPF and Gratuity after expiration of the aforesaid period of Three Months, then the Respondents shall be liable to pay interest on the entire amount at the rate of 6% per annum, till the date of actual payment to Petitioner.

With the aforesaid observation, this Writ Petition is allowed and finally disposed of.

There shall be no order as to costs.