Shyam Babu Sharma vs State of MP and others

Hon''ble Shri Justice Sujoy Paul

The petitioner feeling aggrieved by Annexure P/1 dated 27.8.2009 wherby a recovery of Rs.1,28,504/-is imposed against him, has invoked the jurisdiction of this Court under Article 226 of the Constitution of India.

The petitioner, a State Government employee, was served with an order dated 5.7.2007 (Annexure P/5) directing him to deposit an amount of Rs.1,28,504/-. The petitioner, in turn, preferred his detailed representation (Annexure P/7) stating that he is not liable for the aforesaid payment and the said order is bad in law. Shri Rajmani Bansal, learned counsel for the petitioner submits that thereafter the department was satisfied and no further action was taken against him. He retired on attaining the age of superannuation on 31st August, 2008 and impugned order is passed on 27th August, 2009, after almost one year from the date of his retirement.

Learned counsel for the petitioner submits that the order is bad in law in absence of any enabling provision. He also submits that there was no misrepresentation of fact by him and, therefore, the impugned order is bad in law. The impugned order is passed without affording him any opportunity and it is liable to be axed because it is passed without following the principles of natural justice. He further submits that there is no whisper in the order Annexure P/1 as to why the defence of the petitioner, Annexure P/7, was not found trustworthy by the said authority. For these cumulative reasons learned counsel submits that the impugned order is liable to be quashed.

Per Contra, Shri Tomar, learned Panel Lawyer supported the order and submits that the petitioner, who misused the said amount, is bound to return the same and there is no escape from the same.

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

The petitioner was directed by document dated 5.7.2007 to deposit the amount in question. The petitioner in his detailed representation (Annexure P/7) assigned the reasons and stated that he is under no obligation and responsible to return the said amount. Thereafter, the respondents did not take any action till 27th August, 2009 and almost after one year of retirement of the petitioner the impugned recovery order was passed.

I find force in the argument of Shri Rajmani Bansal that the impugned order Annexure P/1 entails civil consequence and such an order could have been passed only after complying with the principles of natural justice. In absence thereto such a coercive order cannot sustain judicial scrutiny. The impugned order also does not reflect anything about the defence taken by the petitioner in Annexure P/7. Apart from this, after the retirement of an employee his service conditions are governed by the Statutory Rules known as Madhya Pradesh Civil Services (Pension) Rules, 1976 (hereinafter referred to as the ''Pension Rules''). Rule 9 gives power to the Governor to withhold/withdraw the pension or part thereof and order recovery of any pecuniary loss caused to the Government. A minute reading of this rule would show that powers for this purpose are vested with the Governor and such a power can be exercised pursuant to a departmental or judicial proceeding. In the present matter the petitioner was not subjected to any departmental or judicial proceeding as defined in rule 9(6)(a) and (b) of the Pension Rules.

Learned Panel Lawyer is not in a position to lay his hands on any other enabling provision, which permits the State Government to issue a recovery order after retirement of the petitioner from his retiral dues or withhold the same. Apart from this, the purpose of bringing rule 9 in the Statutory Book is to ensure that the retired employees are not put to jeopardy without following the proper proceeding. This is settled in law that if the law provides a thing to be done in a particular manner, it has to be done in the same manner or not at all. Once Rule 9 of the Pension Rules prescribes a methodology to proceed against a retired employee, the Government has to follow the said rule and they cannot be permitted to act de hors the rules.

Rule 9 (2) and (3) further shows that if no departmental proceedings are instituted within four years from the date of incident, there will be a bar on such proceedings. Rule 9 (2) (b) (i) and (ii) of the Pension Rules reads as under:

9 (2)(b) - The departmental proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re-employment

(i) shall not be instituted save with the sanction of the Governor;

(ii) shall not be in respect of any event which took place more than four years before such institution, and

(Emphasis Supplied)

A bare perusal of this provision shows that the proceedings after four years from the date of events are also barred under rule 9. Thus, rule 9 makes it crystal clear that there is a time-limit prescribed within which a department may take action against its employee, beyond that the action is impermissible in law so that the employee cannot be subjected to any persecution after his retirement and there should be a time embargo for proceeding against that employee.

A bare perusal of Annexure P/5 shows that events are of 1998, 1999 and 2001 and that is beyond four years before the date of petitioner''s retirement. In other words, as per the statutory power in Rule 9 (2)(b)(ii) it is clear that the petitioner cannot be subjected to any coercive action for an event which took place more than four years before such institution. In this view of the matter also, the impugned order cannot be permitted to survive.

For the aforesaid cumulative reasons, I have no hesitation to quash Annexure P/1. Accordingly, petition is allowed and Annexure P/1 is quashed and set aside. The respondents are directed to release the aforesaid amount reflected in Annexure P/1 within three months, failing which it will carry 6% interest. The State shall be at liberty to recover the amount of interest from the erring officials who are responsible for the delay in making the payment.