Dr. M.K. Singh vs Union Of India & Ors.

Shri A M Tripathi, learned counsel for the applicant and Shri Vinod Kumar Shukla, learned counsel for the respondents, were present at the time of hearing.

The instant original application has been filed seeking following relief:

The compendium of the facts narrated in the instant original application is that the applicant is aggrieved from impugned orders dated 29.10.2018 passed by the Estate Manager, Mumbai and dated 15.11.2018 passed by the Administrative Officer (I/C) for Director, National Test House (West Region), Marol, Andheri (East) Mumbai – 400093 by way of which a recovery of Rs. 6,80,222/- has been imposed upon the applicant with the information that if applicant fails to deposit the penalty amount, recovery proceedings under the Public Premises Act, 1971 will be initiated against him. By way of the instant original application, applicant seeks a quashing of the above impugned orders with a direction to the respondents to release the amount of Gratuity and G.P.F. of the applicant immediately along with relevant interest.

We have heard the rival contentions advanced by the learned counsel appearing for the parties.

Disclosing a brief history of the case, learned counsel for the applicant submits that the applicant was initially appointed as Scientist Assistant (Civil Engineer) on ad hoc basis on 27.09.1981 and his services were regularized on 20.03.1982. Subsequently, he got promoted to the post of Scientific Officer (Civil Engineer) in the year 1987 and was posted in National Test House (Western Region), Mumbai.

Learned counsel for the applicants further submits that while being posted in Mumbai, the applicant was allotted Quarter No. 30/292 Ekta / Vihar C.B.D. Belapur Bombay (Now in Navi Mumbai) on 12.08.1999 as official accommodation the rent of which was deducted regularly from the applicant’s salary on a monthly basis till August 2006.

Learned counsel for the applicant goes on to submit that on 30.04.2007, disciplinary proceedings under CCS (CCA) Rules, 1965 was initiated against the applicant by issuing a charge sheet consequent to which punishment of compulsory retirement was imposed upon the applicant on 23.07.2009 without any cut in pension and gratuity. Vide order dated 13.08.2009, the applicant was informed that the period from 18.07.2006 to 23.07.2009 shall be treated as dies non. Against the above punishment, applicant preferred an appeal dated 28.08.2009 which was also rejected vide order dated 31.12.2009. Vide order dated 10.02.2010, the applicant was informed that he has been compulsorily retired from government service w.e.f. 17.07.2006. However, by corrigendum dated 03.08.2010, the said date was corrected as 23.07.2009. Aggrieved with the punishment of compulsory retirement, the applicant approached this Tribunal by way of Original Application No. 515 of 2010 which is still pending.

Learned counsel for the applicant further submits that applicant was in occupation of his official accommodation from 19.08.1999 to 07.01.2010 and he vacated and surrendered it on 08.01.2010 and the information regarding the same was communicated to the respondents vide application dated 08.01.2010. Substantiating the ill-conduct of the respondents, learned counsel for the applicant also submits that the effective date of compulsory retirement is 23.07.2009 but in recovery sheet the applicant has been illegally charged Rs. 9890/- w.e.f. 19.08.2006 in accordance with market rate. The Administrative Officer, National Test House (W.R.), Andheri (E), Mumbai requested the Estate Manager, vide its letter dated 23.02.2018 to rectify the recovery sheet accordingly. However, no rectification was done in the recovery sheet by the Estate Manager in pursuance of the letter dated 23.02.2018.

Learned counsel for the applicant further submits that the retiral benefits of the applicant i.e., the amount of gratuity, G.P.F. and arrears of salary of various months, the arrears of salary due to the revision of salary of the applicant on the basis of Vth and VIth Central Pay Commission (which were not done during the service period of the applicant) are illegally withheld till date by the respondents.

Learned counsel for the applicant further submits that in case there were any such dues outstanding against the applicant, the department or Estate Manager ought to had given notice for the same and ought to had made demand of such dues, if any, from the applicant immediately after the same became due, which was never done.

Learned counsel for the respondents has vehemently opposed the averments of the learned counsel for the applicant and by way of his counter affidavit, he has submitted that license fee was deducted every month from the salary of the applicant as per rules till August 2006. As regards to the contention of the applicant that he vacated his official accommodation on 07.01.2010 itself the intimation regarding which was given to the respondents on 08.01.2010, learned counsel for the respondents has submitted that the applicant had neither submitted copy of vacation letter if any or clearance of outstanding license fee letter from the Estate Manager as per rules. It was also submitted that before vacating the official accommodation, the applicant should have cleared the total outstanding license fee of the quarter. Hence the Estate Manager had raised the outstanding license fee bill vide his letter dated 01.08.2017 for Rs. 6,80,222/-. It is also an admitted fact that the applicant had never interacted with the Estate Manager in order to settle the position. The gratuity amount and other retiral dues which have been withheld by the department could only be released had the applicant cleared the above license fee and obtained no dues certificate from the Estate Manager, which he never did.

By way of the counter affidavit, it has been further submitted by the respondents that the applicant is getting regular pension since 24.07.2009. The Gratuity is ready and can only be paid after the receipt of NOC from Estate Manager, Mumbai. Further, drawing of the salary arrears is also ready and the same can only be released on Production of No Demand Certificate from Estate Manager.

Learned counsel for the respondents has further pleaded that as per the existing rules of the department, any recovery to be made against the Govt. servant is liable to be deducted from his / her salary or even from his / her retiral benefits. In the instant case, due to unauthorized absenteeism and non-availability of sufficient leave of the applicant, the salary could not be drawn since a long period and hence license fee was carried forward and arrived at this huge amount. Thus, the applicant herein was bound to have made the payment in a timely manner.

Learned counsel for the applicant vehemently opposes the averments made by the respondents through counter affidavit and by way of his rejoinder reply, submits that no rectification was done by the Estate Manager despite the instructions given by the Administrative Officer, National Test House, Mumbai which itself shows the arbitrariness of the Estate Manager. Learned counsel further submits that in case there were any such dues outstanding against the applicant, since 1999, the department or Estate Manager ought to had given notice for the same and ought to had made demand of such dues from the applicant as and when the amount became due. This was never done and as such after a lapse of 22 years, no recovery can be proceeded with against the applicant. Learned counsel also submits that the applicant is a diabetic patient and his vision in both the eyes is impaired and therefore he is in dire need of money for his medical treatment and other post retiral expenses.

Culminating his arguments, learned counsel for the applicant submits that in accordance with numerous judgments delivered by the Apex Court, it is now a well settled law that Gratuity of an employee cannot be withheld by an employer. Specifically speaking, by way of his written submissions, learned counsel for the applicant has relied upon the judgment passed by the Apex Court in State of Punjab and others Vs. Rafiq Masih and others reported in (2015) 4 SCC 334 submitting that no recovery can be imposed upon an employee after his retirement. Learned counsel has also relied upon the judgment dated 07.08.2001 passed by the Apex Court in case Appeal (Civil) 1874 of 1999 titled Gorakhpur University & Ors. Vs. Dr. Shitla Prasad Nagendra and Ors. wherein it was held that withholding of quarters allotted, while in service, even after retirement without vacating is not a valid ground to withhold the disbursement of the terminal benefits. Thus, learned counsel submits that respondents are liable to be directed to release the applicant’s withheld amount of Gratuity and other arrears of salary and pay the same to the applicant immediately, with interest accrued.

We have gone through the rival contentions advanced by the learned counsels appearing for the parties and also gone through the documents on record.

As the facts of the case have already been narrated above, the same are not reiterated for the sake of brevity. The crux of the matter is that vide impugned orders, a recovery of Rs. 6,80,222/- has been imposed upon the applicant which has been ordered to be recovered from his retiral dues that includes the Gratuity amount which is said to have been withheld by the department. The reason given for withholding the amount of gratuity and other retiral dues of the applicant is that the applicant has failed to obtain the No Due Certificate from the Estate Manager, Mumbai. No Due Certificate has not been given to the applicant due to the reason that the applicant has not deposited Rs. 6,80,222/-. Vide the impugned orders, it has also been stated that in case applicant fails to deposit the above amount, recovery proceedings under Public Premises Act, 197 will be initiated.

It is an admitted fact that generally license fee is deducted from the monthly salary of the employee along with the deduction of HRA and thus respondents were liable to have deducted license fee from the monthly salary of the applicant. In the instant case of the applicant, even if it is accepted that license fee could not be charged from the applicant earlier on account of one reason or another as has been enumerated by the respondents, it would certainly be a gross and absurd ground to believe that respondents did not get opportunity of informing the applicant of his outstanding license fee amount during the course of 1999 to 2012. In all likelihood, respondents were liable to inform the applicant of the outstanding amount as and when it became due. This fact itself speaks for the unprofessional conduct of the respondents’ authorities.

Secondly, it has been stated in the counter affidavit that license fee was deducted every month from the applicant’s salary as per rules till August, 2006. On the contrary, in his letter dated 01.08.2017, the Estate Manager has calculated the pending license fee amount from 1999 onwards. This itself speaks for the arbitrariness of the order dated 01.08.2017 and the method adopted by the respondents to calculate the heavy penalty of Rs. 6,80,222/-. Furthermore, the date of applicant’s retirement is 23.07.2009 however, in the letter dated 01.08.2017, applicant has been charged Rs. 9890/- w.e.f. 19.08.2006 in the recovery sheet. This particular discrepancy was ordered to be rectified but no such rectification in the recovery sheet took place. What is more absurd is the fact that the reason assigned for not rectifying the above discrepancy is that at no point of time, the Estate Manager informed the position to the applicant for the purpose of settling the position regarding outstanding dues. The Court completely fails to understand as to what interaction between the applicant and the Estate Manager was required especially as far as rectifying a conspicuous discrepancy regarding date of retirement is concerned. This particular fact highlights the remiss done on the part of the respondents in the instant case.

Thirdly, the fact that the impugned orders suffer from arbitrariness, frivolity and ambiguity which is also highlighted from the fact that recovery has been calculated up to the year 2012 completely overlooking the fact that the applicant stood retired in the year 2009 itself.

The Tribunal is of the view that the applicant should not be made suffer on account of serious mismanagement, remissness and unprofessionalism done on the part of the respondents. It is an admitted fact that the applicant stands retired in the present matter and his gratuity along with other retiral dues have been withheld by the department concerned only on account of the fact that he has been unable to produce a No Due Certificate with regard to an exorbitant amount of recovery imposed upon him. The reasons as have deliberated upon in the preceding paragraphs cogently convey that the impugned orders are unjust and were passed in an absolute arbitrary manner. Thus, we are of the considered opinion that the instant original application is liable to be allowed and is accordingly, allowed. The impugned order dated 29.10.2018 passed by the Estate Manager, Mumbai and order dated 15.11.2018 issued by the Administrative Officer (I/C) for Director, National Test House (West Region), Marol, Andheri (East) Mumbai are hereby set aside. The competent authority of the respondents is hereby directed to not recover any amount from the applicant on the strength of above impugned orders and if there stands any amount already recovered, the same must be refunded to the applicant @ simple interest of 6% per annum. Further, the competent authority amongst the respondents is also hereby directed to release the applicant’s withheld amount of Gratuity and G.P.F. and pay the same to the applicant @ simple interest of 6% per annum calculating from the date it was liable to be given. The said exercise shall be completed within a period of three months from the date of receipt of certified copy of this order.

However, if there exist any outstanding amount to be recovered from the applicant, respondents are hereby directed to recover the same after proper rectification of the recovery amount by the Estate Officer concerned and quantification of the same. It is held that the process of recovery shall be carried out in accordance with the prescribed procedure that is, show cause notice shall be issued to the applicant and opportunity of hearing shall be afforded to him. The order passed in this regard shall be a reasoned and speaking one taking into consideration the deliberations quoted by the Tribunal in the instant judgment.

All associated MAs stand disposed of accordingly.

No costs. Member (Administrative) Member (Judicial)