Case BriefsHigh Courts

Madhya Pradesh High Court: Sushrut Arvind Dharmadhikari, J. allowed a writ petition which was filed assailing the legality, validity and propriety of the order dated 1-8-2018 whereby the excess amount of Rs.81,239/- has been sought to be recovered from the gratuity payable to him.

Petitioner was aggrieved by the order of recovery after retirement, his grievance was that neither he was afforded any opportunity of hearing nor he was given any show cause notice before deducting the amount from the retiral dues i.e. gratuity of the petitioner. The petitioner was neither found guilty of any misconduct nor held guilty of any offence in the criminal proceedings. The inaction on the part of the respondents was in flagrant violation of principles of natural justice.

Counsel for the petitioner contended that the recovery cannot be made from the retiral dues of the petitioner because there was no misrepresentation or fault on the part of the petitioner. The said recovery had been done without prior approval of the Governor, which was in violation of Rule 9 of the Pension Rules, 1976.

The Court on the perusal of record noticed that it is not the case of the respondents that any undertaking was given by the petitioner for refund of the amount, if any excess payment is made. The Court relied on State of Punjab v. Rafiq Masih (White Washer), (2015) 4 SCC 334 wherein the Supreme Court had laid down the following few situations wherein recoveries by the employee would be impermissible in law:

(i) Recovery from employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’™s right to recover.

The Court held that the case falls under category 3 as the respondents 4 had wrongly issued the impugned order directing recovery of the amount of Rs.81,239/- and thus allowed the petition directing to refund the aforesaid amount, if already recovered, to the petitioner within a period of 3 months.[Rammani Patel v. State of Madhya Pradesh, 2022 SCC OnLine MP 879, decided on 22-04-2022]

For the petitioner: Mr C.L.Patel

For the respondents: Mr Dhiraj Tiwari

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: In a matter wherein, a Judicial Assistant sought voluntary retirement, V. Kameswar Rao, J., observed that in view of the Central Civil Services (Pension) Rules, 1972:

Government Servant at any time, after he has completed 20 years of qualifying service, may give a notice of 3 months to retire from the service.

Petitioner had joined the post of Lower Division Clerk at District and Sessions Judge and was subsequently promoted to the post of Reader/Judicial Assistant.

Further, in the year 2018, he was diagnosed with Lumbar Spondylosis, a type of lower back pain caused by excessive degeneration of lower spine. In view of the said condition, petitioner sought transfer since his medical condition would not allow him to continue with the long hours of travel from his residence at Rohini to the Dwarka Courts.

Between July 2019 and March 2020, the petitioner was forced to take several leaves on account of his medical condition and his inability to travel.

Petitioner’s counsel, Sambit Nanda submitted that due to the respondent’s refusal to allow the petitioner’s request to transfer him back to Rohini Courts due to his medical condition, petitioner was constrained to send a notice under Rule 48-A of the Central Civil Services (Pension) Rules, 1972 requesting him to allow to take voluntary retirement from service.

Petitioner had completed 20 years of continuous service as required under Rules 48-A.

Since the respondent did not refuse permission for voluntary retirement within 3 months of the Notice, petitioner’s retirement became effective on the date of expiry of the notice and upon receiving no-intimation regarding his pending dues, the petitioner sent another letter to respondent requesting to release all pensionary dues and retirement benefits.

It was stated that despite no responding to any of the petitioner’s requests, and notwithstanding the fact that he had retired, respondent sent a notice to the petitioner seeking an explanation as to why he had been absent from office and further directed the petitioner to join his duty immediately.

Issue of consideration

Whether respondent is justified in rejecting the request of the petitioner under Rule 48-A of the Pension Rules, seeking retirement?

Firstly, the Court reproduced the contents of impugned communication by which the petitioner’s request was rejected for voluntary retirement, wherein it was stated that he had completed only 19 years 11 months and 4 days of qualifying service and not 20 years as is required under the rule.

As per Rule 48-A of Pension Rules:

“48-A. Retirement on completion of 20 years’ qualifying service

(1) At any time after a Government servant has completed twenty years’ qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.”

The said rule makes it clear that a Government Servant at any time, after he has completed 20 years of qualifying service, may give a notice of 3 months to retire from the service.

Rule 3(q) of the Pension rules states that: “service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under the rules.” 

Respondent had submitted that petitioner was on extraordinary leave without pay, which was excluded to determine the qualifying service.

It was noted that the petitioner was issued a show-cause notice for his absence, to which his wife sent a reply stating that he was suffering from back pain and partial paralysis. But the Court notes that petition had in his subsequent letter referred to backpain/spinal pain as his medical condition, because of which he was seeking voluntary retirement.

Surely, a backpain cannot be a justification to remain on continuous leave without intimation/leave application.

High Court noted that on the date of notice seeking voluntary retirement, the net qualifying service was 19 years 8 months and 10 days. The date on which the notice was received by respondent. The date on which the notice was received by the respondent, was 19 years 8 months and 16 days and on the date of completion of three months’ notice period it was 19 years 11 months and 15 days.

Bench observed that the provision of Pension Rules is very clear that only after a government servant has completed 20 years of qualifying service, he by giving notice of not less than 3 months retire from service. The Rule presupposes the Government servant having the qualifying service before giving a notice.

Rule 48-A of the Pension Rules has to be read in conjunction with Rule 49(3) of the Pension Rules.

Purport of Rule 49(3) is, for calculating the length of qualifying service, that is fraction of a year equal to three months and above shall be treated as completed as one-half year and reckoned as qualifying service, as has been interpreted in Govt. Of Delhi v. North Delhi Power Ltd., LPA 677 of 2011. 

Rule contemplates rounding up of a fraction to the next nearest half, that is if the period is beyond six months, a Government servant must necessarily have three months service beyond six months to be treated as complete one half-year, which in this case the petitioner did not have.

In view of the above discussion, petition was dismissed. [Gaurav Bhutani v. Principal District and Sessions Judge Headquarters, 2021 SCC OnLine Del 4307, decided on 8-09-2021]

Advocates before the Court:

For the Petitioner: Sambit Nanda, Advocate

For the Respondent: Avnish Ahlawat, SC (DSJ) with Tania Ahlawat, Nitesh Kumar Singh and Palak Rohmetra, Advocates

Case BriefsHigh Courts

Orissa High Court: B. P. Routray, J dismissed the criminal revision petitions being devoid of merit.

The case, in a nutshell, is that a mining lease in favour of the accused petitioner’s late father Mr Patnaik over an area for Manganese for 20 years and Iron Ore Mining lease was granted for 30 years in 1959. However, in the year 1967 Mr Patnaik surrendered the mining lease for Manganese but continued for Iron Ore and applied for renewal of the lease in 1988 for the break-up area, but without the de-reservation proposal though there were forest areas within the applied area. However, no renewal of fresh lease was granted in his favour after 1989, but the period was further extended for one year. The petitioner accused is alleged to apply for a lease on behalf of his father in 1991 to the Government in the Department of Steel and Mines for grant of working permission pending renewal of mining lease which was granted without any approval by the Ministry of Environment and Forest. The father of the petitioner died in 1995. The Ministry of Environment and Forest in its letter dated 3.9.1998 communicated the permission for DRP (De-reservation Proposal).

In the meantime accused requested the Government in Steel and Mines Department for 20 years renewal of the mining lease, however, without submitting the application in proper form and submitted another proposal for by enclosing a forged will. He was charged under offences under Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,1968, Sections 379/120-B of the Indian Penal Code, Sections 21 of the Mines and Minerals (Development and Regulations) Act, 1957 (hereinafter in short called “MMDR Act”), Section 3-A of the Forest Conservation Act, 1980 and Section 58 of the Mineral Conservation and Development Rules, 1988. The instant criminal revision petition is filed to challenge the order dated 19.07.2019 passed by the learned Special Judge (Vigilance), Keonjhar.

Counsel U.C. Patnaik, G. Mukherjee, S. Panda, R. K. Mohanty and Sumitra Mohanty represented the petitioner’s side. The petitioners have submitted that cognizance taken on the report of Vigilance Police is bad in the eye of law as per Section 22 of MMDR Act. It was further submitted that the complaint at the instance of the Vigilance Police and initiation of the proceeding thereof by taking cognizance of the offences by the court is vitiated as per Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007. It was further submitted that the provisions of the MMDR Act or MCD Rules never mean to constitute the offence of theft. It was also submitted that the two co-accused have retired from service in 1994 and 1996 respectively and therefore, initiation of any judicial proceeding against them after four years of their retirement is not permissible in view of the provision contained in Rule 7(2)(c) of the OCS (Pension) Rules, 1992.

Counsel for the respondent Sangram Das submitted that the Vigilance Officials have been duly empowered and authorized to conduct enquiry and investigation in respect of all such offences by the Notification of Government. As per Sections 22 and 23B of the MMDR Act, in its Notification dated 19-12-2009 has named the Director of Mines and two Joint Directors authorizing them to exercise the powers of detection/seizure and confiscation, etc. in connection with illegal mining activities for all type of minerals covering the entire State of Odisha. Hence the argument of the petitioners holds no value. It was further submitted that where a person without any lease or license or authority extract minerals and remove and transport them with an intent to remove dishonestly, is liable to be punished of committing such offence under Sections 378 and 379 of the IPC. The argument regarding retirement stands vitiated as the same is barred under Section 7(2)(c) of the OCS (Pension) Rules, 1992, and is not found acceptable. It is because Rule 7 has a limited field of application and cannot be extended to put an absolute bar against criminal prosecution.

The Court relied on the judgment titled Fani Bhusan Das v. State of Odisha, 2018 SCC Online 310 and held that the provision of the CrPC shall have an overriding effect and shall prevail notwithstanding any provision in the Pension Rules, and therefore, the provisions of OCS (Pension) Rules, 1992 would not give any relief to the petitioners.

In view of the above, the petition is dismissed being devoid of merits. [Jitendra Nath Patnaik v. State of Odisha, 2020 SCC OnLine Ori 559, decided on 06-08-2020]