A. S. Ringnam vs State Of Manipur And Others

MV Muralidaran, J

[1] The petitioner has filed this writ petition seeking direction on the third respondent to pay pension at Rs.5,390/-which is 50% of his last pay/emoluments in pursuance with Rule 49(2) of the Manipur Civil Service Pension Rule, 1977 with a further direction on the third respondent to pay the petitioner of his retirement gratuity at Rs.2,76,770/- in pursuance with Rule 50(1)(a) of the Manipur Civil Service Pension Rule, 1977 by refunding the deducted amount of Rs.22,589/- to the petitioner.

[2] The case of the petitioner is that he was initially appointed as a Lambu of the Office of the Deputy Commissioner, Manipur East District on 3.6.1980 on regular basis and after rendering more than 30 years of regular service, superannuated on 31.10.2012. After retirement, the Sub Divisional Officer, who is the drawing officer of the petitioner, prepared the last pay certificate and as per the last pay certificate, his pay was fixed at Rs.8,980/- with grade pay of Rs.1,800/-. Thereafter, the Sub Divisional Officer, submitted pension papers of the petitioner to the Joint Secretary (Pension Cell), Government of Manipur for perusal and onward submission to the office of the third respondent on 4.2.2013.

[3] Further case of the petitioner is that on 2.7.2013, the Under Secretary (Pension Cell) forwarded the pension papers to the office of the third respondent. On 25.9.2013, the Senior Accounts Officer (Pension Cell) of the third respondent issued the gratuity payment order in favour of the petitioner to the District Treasury Officer, wherein the petitioner was given only an amount of Rs.2,45,975/- as his retirement gratuity and by the said gratuity payment order, an amount of Rs.22,589/- was deducted from his retirement gratuity of Rs.2,68,564/-. On 4.10.2013, the third respondent issued pension payment order in favour of the petitioner for an amount of Rs.5,330/- as his monthly pension to the office of the District Treasury, Ukhrul, Manipur. It is averred that the Sub Divisional Officer, Chingai, prepared the pension, retirement gratuity etc. in respect of the petitioner wherein his monthly pension was prepared at the rate of Rs.5,390/- and his retirement gratuity was fixed at the rate of Rs.2,76,770/-.

[4] The grievance of the petitioner is that a sum of RS.22,589/- was deducted from the retirement gratuity without giving any reason for deduction of the same. No reason has been recorded except the word overpayment in the gratuity payment order dated 25.9.2013 and the recovery order was issued in violation of natural justice and therefore, the same is liable to be set aside. According to the petitioner, he did not commit any act of fraud or misrepresentation to enjoy any financial benefit from the Government. Therefore, the third respondent is required to be directed to refund the deducted amount of Rs.22,589/- to him which was deducted by the third respondent as overpayment of pay from the retirement gratuity of the petitioner.

[5] It is stated that the amount of pension of a retired Government servant who retired from service in accordance with the above said Pension Rules shall be calculated at 50% of the emolument or average emoluments whichever is more beneficial to him. However, the third respondent in violation of Rule 49(2) of the CCS Pension Rules, 1972, had prepared the monthly pension at the reduced rate i.e. at Rs.5,230/- per month instead of his actual entitlement of monthly pension at Rs.5,390/- per month. In such facts, the present writ petition is filed for the relief stated supra.

[6] Resisting the writ petition, respondent Nos.1 and 2 filed affidavit-in-opposition stating that after examination of the service book of the petitioner, the third respondent detected wrong fixation of pay of the petitioner and the rectified the fixation of pay under ROP 1990, thereby making recovery from retirement gratuity of the petitioner. It is stated that the pay of the petitioner as on 1.6.1995 was Rs.899/- in the scale of pay Rs.775-1025 under ROP 1990. On coming to the new pay structure under ROP 1999, his pay should be fixed at Rs.2,790/- in the scale of pay of Rs.2610 - 3580/-, however, it was wrongly fixed at Rs.2,850/- by the office of the Sub Divisional Officer, Chingai, in collusion with the petitioner. Therefore, overpayment was caused due to wrong fixation of pay under ROP 1999 and its subsequent ROPs. The office of the third respondent calculated the pensionary benefits of the petitioner under Rule (2) of the MCS (Pension) Rules on the basis of the corrected pay and overpayment of Rs.22,589/- was detected and the same was recovered from his retirement gratuity. Therefore, there is no violation of pension Rules as well as fundamental rights of the petitioner. Hence, prayed for dismissal of the writ petition.

[7] Respondent No.3 filed affidavit-in-opposition stating that after coming to know about the wrong fixation, the pensionary benefits of the petitioner was calculated under Rule 49(2) of MCS (Pension) Rules on the basis of corrected pay and overpayment of Rs.22,589/- was detected and the same was also recovered from his retirement gratuity as per the consent given by the petitioner. Therefore, there is no violation of pension Rules and hence, prayed for dismissal of the petition.

[8] The learned counsel for the petitioner submitted that when the scale of pay had been rightly fixed, there cannot be any revision of pay without notice to the petitioner or calling for his objections, in due compliance of the principles of natural justice. According to the learned counsel, pension of the retired Government servant who retired from service in accordance with the pension Rules shall be calculated at 50% of the emolument or average emoluments whichever is more beneficial to him. However, in violation of the Rule 49(2) of the Pension Rules, the third respondent prepared the monthly pension at the reduced rate at Rs.5,230/- per month and that the actual monthly pension eligible by the petitioner is at Rs.5,390 /- per month. Further, the learned counsel submitted that the deduction of Rs. 22,589/-made by the respondents is totally wrong and therefore, the said amount is ordered to be refunded to him.

[9] Per contra, reiterating the gratuity payment order, the learned counsel for the respondents contended that the pensionary benefits of the petitioner was calculated under Rule 49(2) of the MCS (Pension) Rules on the basis of the corrected pay and after coming to know the wrong fixation, the third respondent deducted the overpayment of Rs.22,589/- and that there is no violation of pension Rules.

[10] I have considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.

[11] The grievance of the petitioner is that the alleged overpayment and allowances to the tune of Rs.22,589/- is not liable to be recovered, as the same was done due to the wrong fixation of pay of the petitioner without any misrepresentation on his part and the petitioner never gave consent to recover any excess amount of money from him, which may be either to wrong fixation of pay or application of wrong provision of rules.

[12] Qua the recovery made by the respondent authorities from the petitioner's gratuity, it is to be noted that before such recovery made, no opportunity of hearing was given to the petitioner. That apart, it is not the case of the respondent authorities that the petitioner had played fraud or misrepresented and got his pay fixed at the higher scale. Overpayment of pay and allowances cannot be treated as Government due. Non-clearance of quarters or house rent, service loan or loans of any kind, which the employee availed while in service and could not be cleared, can be treated as Government dues. However, in the present case, it is not so. Therefore, the petitioner prayed for a direction to refund the deducted amount of money to the tune of Rs.22,589/-to the petitioner. In support, the learned counsel for the petitioner relied upon the following decisions of this court as well as Gauhati High court:

(i) Writ Appeal No.5 of 2011, decided on 21.01.2011 on the file of Gauhati High Court (Imphal Bench).

(ii) Writ Petition (C) No.783 of 2008, decided on 06.1.2010 on the file of Gauhati High Court (Imphal Bench).

(iii) Writ Petition (C) No.199 of 2011, decided on 01.6.2011 on the file of Gauhati High Court (Imphal Bench)

(iv) Writ Petition (C) No. 899 of 2013, decided on 28.2.2014 on the file of Manipur High Court.

(v) Writ Petition No. 33360 of 2004, decided on 11.09.2018 on the file of Madras High Court.

[13] As far as the recovery made by the respondent authorities is concerned, it is to be noted that before such recovery order is passed, no opportunity of hearing was given to him. That apart, it is not the case of the respondent authorities that the petitioner had played fraud or misrepresented and got his pay fixed at the higher scale.

[14] It is settled that any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be a nullity.

[15] This court as well as the Hon'ble Supreme Court in a catena of decisions, time and again reiterated that no recovery of excess payment for not fault of the employee can be made without following the principles of natural justice. No prejudice need be proved by enforcing the fundamental rights. Violation of fundamental right itself renders the impugned action void. So also the violation of natural justice renders the act of nullity. The purpose of the principles of natural justice is prevention of miscarriage of justice.

[16] In the decisions cited by the learned counsel for the petitioner with regard to the recovery, after quoting the law laid down by the Hon'ble Supreme Court in the case of Syed Abdul Qadir and others v. The State of Bihar and others, reported in (2009) 3 SCC 475, it has been categorically held that when excess payment has been made on wrong interpretation of rule or erroneously, it cannot be recovered. Since the law is well settled qua recovery, the decisions cited by the petitioner have not been further elaborated by this Court in this order.

[17] In view of the above, this Court of the opinion that a sum of Rs.22,589/- deducted from the retirement gratuity of the petitioner is without giving any reason for deduction and without being granting opportunity to the petitioner and also no fault or fraud attributed against the petitioner. Hence, the said sum deducted is to be refunded to the petitioner by the respondent authorities.

[18] The plea of the petitioner is that amount of pension of a retired Government servant, who retired from service in accordance with the Pension Rules, shall be calculated at 50% of emolument or average emoluments whichever is more beneficial to him. In this regard, Rule 49(2) of the CCS Pension Rules, 1972 adopted by the State for its employees, reads thus:

"49 Amount of Pension

(2) In the case of Government servant retiring in accordance with the provision of these rules after completing the qualifying service of not less than ten years, the amount of pension shall be calculated at fifty percent of emoluments or average emoluments, whichever is more beneficial to him, subject to a maximum of three thousand and five hundred rupees per mensem and a maximum of 'forty-five thousand rupees per mensum."

[19] It appears that the petitioner has rendered more than 30 years of regular service and was allowed to retire from service on reaching the age of superannuation with effect from 31.10.2012. The drawing and disbursal officer of the petitioner prepared his last pay certificate and as per the last pay certificate, the petitioner's pay was fixed at Rs.8,980/- with grade pay of Rs.1,800/-. The pension papers of the petitioner was submitted to the Joint Secretary (Pension Cell) for perusal and onward submission to the Accountant General on 04.2.2013. Thereafter, the Under Secretary (Pension Cell) forwarded necessary pension papers of the petitioner to the Accountant General on 2.7.2013.

[20] On a perusal of the impugned order, respondent No.3 had prepared the monthly pension of the petitioner at a reduced rate i.e. @ Rs.5,230/- per month instead of the actual entitlement of monthly pension i.e. Rs.5,390/-, which is not in accordance with the law and the third respondent prepared the monthly pension of the petitioner by overlooking the provision of Rule 49(2). As stated supra, as per the last pay certificate, the pay of the petitioner was fixed at Rs.8,980/- with grade pay of Rs.1,800/- and as per Rule 49(2), the amount of pension shall be calculated at fifty percent of emoluments or average emoluments, whichever is more beneficial to the petitioner, subject to a minimum of Rs.3,500/- per mensem. Accordingly, if we take Rs.8,980/- as last drawn and adding Rs.1,800/- as grade pay, the amount would comes to Rs.10,789/- and fifty percent of the said amount would comes to Rs.5,390/-, which is the pension amount, the petitioner is eligible and the same is also as per Rule 49(2) of the Manipur Civil Service (Pension) Rules, 1977.

[21] In the result,

(i) The writ petition is allowed.

(ii) The order of recovery dated 25.9.2013 passed by the Senior Accounts Officer (pension), Office of the Accountant General (A&E), Manipur, is set aside.

(iii) The respondent authorities are directed to refund the deducted amount of Rs.22,589/- to the petitioner, within a period of one month from the date of receipt of a copy of this order.

(iv) The respondent authorities are directed to prepare the monthly pension of the petitioner by following the provision of Rule 49(2) of the Manipur Civil Service (Pension) Rules, 1977 at the rate of Rs.5,390/- per month and pay the same to the petitioner, within a period of two months from the date of receipt of a copy of this order.

(v) No costs.