S.C Sharma, J.@mdashThe petitioner before this Court has filed the writ petition for quashing the order of recovery Annexure P/6 dated 27.4.2007 by which a sum of Rs. 73,600/- was directed to be recovered from retiral dues of the petitioner.
2. Contention of the petitioner is that the petitioner was an employee of the Water Resources Department working on the post of Assistant Grade-II and has attained the age of superannuation. A charge-sheet was issued to him while in service in the year 1999 as per the provisions of Rule 14 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 and he was placed under suspension, however, the order of suspension was quashed by the State Administration Tribunal by passing an order dated 20th December, 1999.
petitioner has further stated in the writ petition that he has preferred a writ petition i.e. W.P. No. 2306/03 challenging the departmental enquiry pending against him as the same was initiated two years prior to his superannuation. This Court while disposing of the aforesaid writ petition vide order dated 29.10.2003 directed the respondents therein to conclude the departmental enquiry pending against the petitioner on or before 31st December, 2003. It was observed by this Court that in case departmental enquiry is not concluded within the aforesaid period, the same shall be deemed to have been quashed.
The petitioner''s grievance is that the enquiry was not concluded by the respondents up to 31st December, 2003 and the petitioner superannuated w.e.f. 31.1.2004, however, the respondents have illegally passed the order Annexure P/6, dated 27.7.2004.
3. A reply has been filed by the respondents and it has been stated in the reply that a charge-sheet was issued to the petitioner in the year 1999 and the allegations of misconduct are of very serious in nature. respondents have further stated that the petitioner was the custodian of cheque book and one cheque bearing No. A-15-78215 was missing from the cheque book with counter-foil and sum of Rs. 3,68,000/- was withdrawn on 8.5.1995 by an unknown person against the said cheque. respondents have further stated that the enquiry was completed on 31.12.2003 and as per enquiry report 20% of the total amount was to be recovered from the petitioner which it comes to Rs. 73,600/- respondents have justified their action by stating that the so-called enquiry against the petitioner was concluded on 31.12.2003 and therefore, the writ petition deserved to be dismissed.
4. Heard learned Counsel for the parties at length and perused the record.
5. In the present case, it is not in dispute that the petitioner was a Government employee, retired from service on attaining the age of superannuation on 31.1.2004. A charge-sheet was issued to him in the year 1999 and on account of the same, he was placed under suspension. Suspension of the Administrative Tribunal. The petitioner came up before this Court against the departmental enquiry in a writ petition. The said Writ petition No. 2306/2003 was disposed of vide order dated 29.10.2003. The following order passed by this Court:
Considering the totality of facts, respondents are directed to conclude the enquiry within a stipulated period as the matter is pending since 1999 and the petitioner is due for retirement on 31st January, 2004 it is directed that respondent No. 2 shall see that enquiry against the petitioner is concluded on or before 31st December, 2003 and final orders passed. In case the respondents are unable to conclude the enquiry within the aforesaid stipulated period, the enquiry shall be deemed to have been quashed and the right of the respondents to continue with the enquiry shall be taken away. Accordingly, the respondents are directed to complete the enquiry within the aforesaid stipulated period. However, it is expected that the petitioner shall co-operate with the enquiry proceedings and in case enquiry is delayed on reasons attributable to the petitioner, respondents may seek permission for extension of time.
Thereafter a contempt petition was preferred by the petitioner in the matter which was registered as Contempt petition No. 84/2004 and this Court while disposing of the aforesaid contempt petition has observed as under:
Action can only be taken, if non-applicants deliberately violate any direction of this Court. The order passed by this Court clearly indicates that the departmental enquiry will stand quashed if not concluded before 31st December, 2003. Merely because retiral dues of the petitioner is not settled it cannot be said that departmental enquiry is still continuing. There is nothing on record to indicate that departmental enquiry is still continuing. On the contrary the order dated 31.1.2004 Annexure P/3 indicates that the petitioner has been retired on 31.1.2004 on superannuation. The departmental enquiry having already been quashed, petitioner has to claim relief for settlement of his claim in accordance with law, filing of contempt petition is not proper for the same.
Accordingly, no action is required to be taken in these proceedings.
Application is dismissed with liberty to petitioner to claim his retiral dues in accordance with law before an appropriate forum.
6. The aforesaid finding recorded by the Court in the contempt petition reflected that the departmental enquiry pending against the petitioner stands quashed and petitioner was granted liberty to claim retiral dues in accordance with law. In the present case it has been brought to the notice of this Court that the enquiry was completed by the respondents on 31st December, 2003, however, no final order was passed by the respondents in the matter. This itself establishes that the respondents have presumed that the departmental enquiry is no longer in existence. Not only this, provison to Sub-rule (4) of the Rules 64 of M.P. Civil Service Pension Rules, 1976 reads as under:
(4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceeding are instituted or where departmental proceedings are continued under Sub-rule (2), a provisional pension and death-cum-retirement gratuity as provided in (Rule 64), as the case may be, shall be sanctioned:
Provided that where pension has already been finally sanctioned to a Government servant prior to institution of departmental proceedings, the Governor may, by order in writing, withhold, with effect from the date of institution of such departmental proceedings fifty per cent of the pension so sanctioned subject, however, that the pension payable after such withholding is not reduced to less than the minimum pension as determined by the Government from time to time.:
Provided further that where departmental proceedings have been instituted prior to the 25th October, 1978, the first provison shall have effect as it for the words "with effect from the date of institution of such proceedings" the words "with effect from a date not later than thirty days from the date aforementioned," had been substituted:
Provided also that-
(a) If the departmental proceedings are not completed within a period of one year from the date of institution thereof, fifty per cent of the pension withheld shall stand restored on the expiration of the aforesaid period of one year;
(b) If the departmental proceedings are not completed within a period of two years from the date of institution the entire amount of pension so withheld shall stand restored on the expiration of the aforesaid period of two years; and
(c) If in the departmental proceedings final order is passed to withhold or withdraw the pension or any recovery is ordered, the order shall be deemed to take effect from the date of the institution of departmental proceedings and the amount of pension since withheld shall be adjusted in terms of the final order subject to the limit specified in Sub-rule (5) of Rule43.
7. In the present case as no final order has been passed within a period of two years from the date of institution of the departmental proceedings, the pension so withheld by the respondents deserves to be restored in the matter.
8. Resultantly, keeping the aforesaid statutory provisions and the fact that no final order has been passed by the respondents within the statutory stipulated period, the pension so withheld deserved to be restored. As no final order was passed in the departmental enquiry pending against the petitioner after the directions issued by this Court in W.P. No. 2306/03 (supra), the question of passing an order on 27.7.2004 withholding the terminal dues of the petitioner amounting to Rs. 73,600/-, does not arise. Resultantly, impugned order dated 27.6.2004 is also quashed. The present writ petition is disposed of with the following direction:
(A) Respondents shall finalize the pension of the petitioner and shall pass appropriate order, granting full pension to the petitioner from the date of retirement along with arrears within a period of three months from the date of receipt of a certified copy of this order.
(B) Respondents shall release Gratuity, Leave Encashment and other terminal dues, if not already paid to the petitioner within three months from the date of receipt of certified copy of this order.
(C) Respondents shall pay interest to the petitioner at the rate of 6% per annum on the arrears of pension from the date of entitlement till the date of actual date of payment. petitioner shall also be entitled for interest at the 6% per annum on the other retiral dues which has not been paid to the petitioner.
(D) Respondents shall also pay the aforesaid amount of interest within a period of three months from the date of receipt of certified copy of this
(E) In case the amount as directed above is not paid within the stipulated period of three months, the same shall carry the interest at the rate of 12% per annum from the date amount was due to the petitioner till the date of actual payment to the petitioner.
Petition is disposed of with the aforesaid, no order as to costs.
