Writ Petition No.4674 of 2012

15th July, 2013

Petitioner Counsel: Shri M.R. Rajgure
Respondent Counsel: Shri P.D. Meghe

JUDGMENT

ANOOP V. MOHTA, J. :- Heard. Rule. Rule returnable forthwith. Heard finally by consent of the learned Counsel for the parties.

2. The petitioner, a widow, has challenged impugned order dated 3.10.2001, whereby the respondents deducted the pension amount of the petitioner's deceased husband, who was employee, expired on 10.6.2001, even after filing reply to the show cause notice about the penalty, as contemplated in Rule 4 (iii) of the Maharashtra Zilla Parishads District Services (Discipline and Appeal) Rules, 1964, which is reproduced as under :

"4 (iii) recovery from pay of the whole or part of any pecuniary loss caused to the Zilla Parishad by negligence or breach of orders."

3. Admittedly, the deceased employee replied to the show cause notice but there was no decision taken by the respondents. Another show cause notice was issued, which was replied by the petitioners and denied the same being not aware of the factual aspect as well as the alleged recovery mentioned therein.

4. Admittedly, no detailed enquiry, at any point of time, was conducted by the respondents, when deceased employee was alive. The basic burden lies upon the respondents to support and to prove the recovery/or such penalty, which they admittedly failed to do here.

5. We have gone through the show cause notice, as well as the order, which shows that a number of items/entries were ranging from the year 1991 to 1996 also. Though there are some entries of the year 1996 to 1999. The substantial amount as per those entries was prior to year 1997-98.

6. The learned Counsel appearing for the petitioners has raised contention referring to Rule 27 of the Maharashtra Civil Services (Pension) Rules, 1982 to point out that no such recovery can be made from the pension amount on the basis of events, which took place more than four years before such proceedings.

Rule 27 (2) (b) (i) and (ii) and Rule 27 (6) (a) of the Maharashtra Civil Services (Pension) Rules, 1982 read thus :

"27. Right of Government to withhold or withdraw pension.

(1) ...

(2) (a)...

(b) 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, and

(iii)...

27 (6). For the purpose of this rule-

(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and

(b) ..."

7. The order shows that there was nonapplication of mind and basically when the details of recovery show that all the entries were admittedly beyond the period of four years when the proceedings were instituted. The sanction of State Government is also missing.

8. Even otherwise, we are inclined to observe that as per clause 4 (iii) of the Rules, 1964, the disciplinary action, even if, they want to initiate including recovery from pay of the whole or part of any pecuniary loss caused to the Zilla Parishad that should be only for "negligence or breach of orders". Admittedly, no enquiry whatsoever was conducted by the respondents. There is no finding on record to show that there was any finding of negligence or breach of order, which empowered the respondents to recover such amount at this late stage and that is too after the death of employee.

9. It is relevant to note that he was not the only person who was charged for the alleged deeds or misdeeds. The Sectional Engineer was also charged and the submission is made that 50% amount is sought to be recovered by the respondents from him. This itself shows that there is nothing to show that the deceased was the only person who was responsible for the alleged loss.

10. In this background, therefore, we are inclined to observe that the action initiated by the respondents is illegal and impermissible and therefore, is liable to be quashed and set aside. Hence, we pass the following order.

ORDER

(i) The impugned order dated 3.10.2001 is quashed and set aside. The writ petition is allowed. Rule is made absolute in the above terms.

(ii) There shall be no order as to costs.

Petition allowed.