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M.Raghavan. v. The Managing Director - W.P.NO.2616 OF 2000 AND W.M.P.NO.4047 OF 2000  RD-TN 196 (27 March 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE V.KANAGARAJ W.P.NO.2616 OF 2000 AND W.M.P.NO.4047 OF 2000 M.Raghavan. .. Petitioner Vs.
1. The Managing Director,
Tamil Nadu Water Supply and
Drainage Boarad, Chennai.5.
2. Chief Accounts Officer,
Tamil Nadu Water Supply and
Drainage Board, Chennai.5.
3. The Joint Chief Engineer (Gl)
Tamil Nadu Water Supply and
Drainage Board, Chennai.5. .. Respondent Petition under Article 226 of the Constitution of India, praying to issue a writ of certiorari as stated therein. For Petitioner: Mr.P.Navaneethan.
Respondent: Sudharsana Sundar.
: O R D E R
Petitioner has filed this writ petition praying to issue a writ of certiorari calling for the records connected with the proceeding in letter No.37248/TWAD/GPF II/A1/88-2 dated 10.1.2000 on the file of the Chief Accounts Officer, the 2nd respondent and quash the same.
2. In the affidavit filed in support of the writ petition, petitioner would submit that he retired as Superintending Engineer in Tamil Nadu Water Supply and Drainage Board on 30.6.1988 on superannuation, after serving in the Board for nearly 36 years and 4 months; that on 1 7.1.2000, he received a letter dated 10.1.2000 from the Chief Accounts Officer, the second respondent herein informing that as a result of the follow up action taken up by the GPF (UP) Section, it was found that a sum of Rs.10,000/- drawn by him as part and final withdrawal during 3/1985 has not been debited in the account and therefore, the Managing Director ordered to recover the amount of Rs.10,000/- with compound interest from 3/1985 to 12/1999, totalling to Rs.53,015/- ( Principal Rs.10,000/- plus interest Rs.43,015/-); that therefore, the second respondent requested the third respondent to recover the sum of Rs.53,015/- in 53 monthly instalments from his pension at the rate of Rs.1015/- per month from February 2000 onwards; that the respondents without issuing any notice and without giving any opportunity to him passed the order to recover the amount from his pension which is contrary to the Rules; that immediately on 19.1.2000, he sent a reply to the respondents requesting the TWAD Board to drop further action in the matter, but the respondents have withheld a sum of Rs.1015/- from the pension payable to him for the month of January 2000; that he had applied for withdrawal of a sum of Rs.10,000/- as part final payment from his G.P.F. Account during the month of March 1985, the amount was given to him; that in the month of September 1986, he had applied again for another part final withdrawal amount of Rs.12,000/- from his G.P.F. Account and in the said application, he had furnished the particulars of withdrawal of Rs.10,000/- in column No.7; that after the retirement, a final payment of Rs.13,724/- was ordered to be paid to him on 12.8.1998 and he had received the payment of G.P.F. due to him. 3. The petitioner would further submit that Rule 9 (1)(a) of Tamil Nadu Pension Rules, 1978, provides that: "The Government reserves to themselves the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period if, in any departmental or judicial proceeding, the Pensioner is found guilty of grave misconduct or negligence during the period of service including the service rendered upon reemployment after retirement and such withholding or withdrawing the pension may be effected irrespective of the fact whether or not any pecuniary loss on account of such grave misconduct or negligence was caused to the Government, to any local body or to any Cooperative Societies comprising of Government Servants and registered under the Tamil Nadu Cooperative Societies Act, 1961." 9(2)(b) provides that "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 Government (ii) shall not be in respect of any event which took place more than four years before such institution." After the lapse of 11 1/2 years from the date of retirement no amount can be deducted from his pension and the recovery is against the Rule 9 of the Tamil Nadu Pension Rules. 4. The petitioner would further submit that Rule 33 of the General Provident Fund (Tail Nadu) Rules, provides for procedure for presentation of application for final withdrawal; that Rule 33(2)(iii) of G.P.F.Rules provides "The Accounts Officer shall after verification with the ledger of account issue an authority for the amount indicated in the application at least a month befor e the date of superannuation but payable on the date of superannuation. As the authorisation to be issued by Accounts Officer will not always be for the amount indicated in the Application, for in certain cases, where the Subscriber has drawn temporary advance part final withdrawal after the date of despatch of application, the amount indicated in the application has to be reduced by such withdrawal."
5. The petitioner would further submit that the part final withdrawal during 3/1985 has not been debited to his account as the debit schedule was not received from P.F.Division, Madurai, it is the duty of the Accounts Section, TWAD Board to send the debit schedule of all the persons; that as he was transferred from Madurai to Kanchipuram Division in the month of November 1985 itself, he was not aware of the failure of the Department and that it was not his default; further when he had applied for part and final withdrawal for a sum of Rs.12,000/- in the month of September 1986, he specifically mentioned the fact of withdrawal of Rs.10,000/- earlier and he had also enclosed the order of sanction for a sum of Rs.10,000/- in the month of March 1985; that unless the previous order is enclosed, the amount will not be sanctioned by the Department; that for the mistake committed by the Accounts Department, for an amount of Rs.10,000/- he should not be penalised to pay an interest of Rs.43,105/-. On such averments, petitioner would pray for the relief as extracted supra. 6. In the counter affidavit filed by the first respondent besides usually denying all the allegations in the affidavit, would submit that the petitioner was ordered for recovery of the overpayment based on the undertaking given by the individual at Sl.No.15 of his General Provident Fund final withdrawal application; that the pension rule No.9 of Tamil Nadu Pensions Rule, 1978 quoted by the petitioner relates to the right of the Board for withholding or withdrawing a pension or part thereof, if the pensioner is found guilty of grave misconduct or negligence during the period of his service, but in this case, it is only a recovery of an excess payment and not a penalty or recovery for punishment imposed on the individual and hence this rule has no relevance for this recovery and will not apply; that the petitioner was the Head of Office of Project Formulation division, Madurai and as the drawing and disbursing officer of that Division he had failed to furnish the debit schedule of Rs.10,000/- in his General Provident Fund Account for the month of March 1985 and if any action is to be taken against the Division Office for this omission, action has to be taken against this individual only as he was the drawing and disbursing officer responsible to furnish the debit schedule every month; that the Accounts section, Madurai was not responsible for not forwarding the debit schedule to Head Office; Moreover, the recovery of Rs.43,1 05/- is not a penalty but it is interest charged on the sum of Rs.10,000/- borrowed by him in March,1985 and that recovery of over payment of principal and interest thereon cannot be treated as penalty. On such averments, the respondent would pray to dismiss the writ petition with costs. 7. During arguments, the learned counsel for the petitioner besides narrating the facts of the case as forwarded in the writ petition would also cite a judgment reported in 100(1987) Law Weekly 624 (UNION OF INDIA v. WING COMMANDER R.R.HINGORANI (RETD.), wherein the Honourable Apex Court held "the recovery of damages at market value from the pension of a Government servant or failing to vacate accommodation allotted to him, is not illegal and the same could be by other modes open for the Government in law.......It must accordingly be held that the Government had no authority or power to unilaterally deduct the amount of Rs.20,482.78 from the commuted pension payable to the respondent, contrary to S.11 of the Pensions Act, 1871." 8. On the other hand, the learned counsel appearing for the respondent would point out Rule 9 (5) of the Tamil Nadu Pension Rules which reads: "where the Government decide not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery was not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. " 9. It is a case of Superintending Engineer of the Tamil Nadu Water Supply and Drainage Board who retired in the said capacity on 30.6.198 8. It is not a recovery on account of slackness or levied as penalty on the petitioner; that being a responsible officer of the status of a Superintending Engineer who was himself the drawing and disbursing officer, responsible to furnish the debit schedule every month for the entire Division, had failed to furnish the debit schedule of Rs.10 ,000/- in his General Provident Fund account for the month of March 1 985 and if at all any action for slackness or dereliction of duty or for shirking responsibility against the petitioner individually it could be taken in a lighter vein, but as he was the officer responsible for drawing and disbursing and to furnish the debit schedule every month for the whole Division and therefore, no other person could be held responsible for such slackness in not deducting the amount of Rs.10,000/- that he had drawn already from the G.P.F. Account. 10. Absolutely, no doubt need be entertained that the amount should be recovered from the petitioner with interest accrued since from the date of his dereliction of duty knowingly and wilfully committed to squander away the amount of Rs.10,000/- that is belonging to the Government. It becomes recoverable with interest when it comes to the notice of the authorities and therefore, the moment it came to be detected by the second respondent Chief Accounts Officer, he had made request to the third respondent to recover the said amount of Rs.53,015/- in 53 instalments from his pension at the rate of Rs.1,015/- per month from February 2000 onwards. 11. This is not a regular recovery as it is being normally made at different circumstances from the delinquent either on account of slackness or on account of carelessness causing loss to the department on the part of the Government servant, but it is cheating by a responsible officer of the Government of its money which he had taken from the G.P.F. Account and without furnishing the same in the debit schedule, he himself being the drawing and disbursing officer and therefore, it cannot be treated as a normal case of recovery so as to bring it under Rule 9(1)(a) or 9(2)(b) as to become entitled to the benefit of the same especially in view of Rule 9(5) of the Tamil Nadu Pension Rules 1871 when the recoveries are ordered to be effected. This Court does not at all think it necessary to cause its interference as it is sought to be made into the impugned proceeding and order dated 10.1.2000 by the second respondent. This is a fit case which requires only to be dismissed.
12. In result, i) the above writ petition does not merit acceptance and the same is dismissed as such with the cost of Rs.2000/-; ii) The proceedings of the second respondent in its letter No.37248 /TWAD/GPF II/A1/88-2, dated 10.1.2000 is hereby confirmed. 27.03.2002. Index:Yes/No Internet:Yes/No gr. To 1. The Managing Director, Tamil Nadu Water Supply and Drainage Boarad, Chennai.5. 2. Chief Accounts Officer, Tamil Nadu Water Supply and Drainage Board, Chennai.5. 3. The Joint Chief Engineer (Gl) Tamil Nadu Water Supply and Drainage Board, Chennai.5. gr.
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