2016(6) ALL MR 627
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B. P. DHARMADHIKARI AND P. N. DESHMUKH, JJ.
Manohar s/o. Balwantrao Wankhede (dead) Lrs. Vs. The Zilla Parishad, Wardha
Writ Petition No.3590 of 2003
7th April, 2016.
Petitioner Counsel: Mr. N.R. SABOO
Maharashtra Civil Services (Pension) Rules (1982), R.27(b) - Withholding of pension - On account of alleged misappropriation - Legality - Petitioner Gram Sevak superannuated in Feb.2001 - Show cause notice issued for the first time in Oct.2001 for alleged misappropriation relating to years 1990 till 2000 - In view of Rule 27(b), recovery for the year prior to 1997, not permissible - Further, impugned order seeks to recover 50% of loss from petitioner only - This is also impermissible in view of Govt. Circular dated 25.2.2000 which directs recovery from five named officials in equal proportion - Besides, misappropriation was alleged only on basis of difference of amount mentioned in valuation report - Whereas valuation was done behind back of petitioner - Held, petitioner has been victimized - Order of recovery, not sustainable. (Paras 10, 12, 13, 15)
B. P. Dharmadhikari, J. :- Petitioner, now dead, is prosecuting present matter through his legal heirs. Grievance is about withholding amount of Rs.1,71,171/- from his Pension and Gratuity. Submission is, after retirement of petitioner on 28th of February, 2001, in breach of principles of natural justice for alleged misconducts, which have taken place more than four years before the date of superannuation, the punishment has been imposed. Advocate Shri Saboo submits that this Court issued notice in the matter on 26th of April, 2004 and interim relief was granted while issuing Rule on 4th of November, 2004. However, in the meanwhile a impugned recovery was completed.
2. Respondent - Zilla Parishad filed submissions opposing the petition and along with the submission, for the first time, a copy of order dated 12th of November, 2001 pointing out the recovery was produced. He submits that said order was not within knowledge of petitioner and hence after receipt of this reply on 13th of August, 2004 prayer iii(a) has been added for quashing and setting aside of said order. He therefore submits that amount recovered should be directed to be returned to legal heirs of deceased petitioner with interest, as per law.
4. Recovery is for works done by petitioner as a Gram Sevak at Gram Panchayat Ashti between 1990-91 and 1991-92. During said period he had additional charge of Antora and Khambit GramPanchayats. Total amount of Rs.46,728/- is alleged to be misappropriated by the petitioner during this period.
6. Petitioner was serving at Gram Panchayat Karanja when on 27th of February, 2001 he was informed that he would be reaching age of superannuation on 28th of February, 2001 and stand relieved in the afternoon on that day. For the the first time on 3rd of October, 2001 a show cause notice calling upon him to explain as to why recovery of amount of Rs.1,67,977/- for works at Karanja (Ghadge), recovery of Rs.1,10,219/- fo works at Ashti and recovery of Rs.12,538/- under other heads should not be effected from him. He was called upon to remain present at 11 a.m. on 8th of October, 2001 with available material in defence. On that day petitioner has given his reply pointing out that valuation of the works done by him was not carried out in the year in which works were complete. It is further submitted that the rates looked into by administration were less than the market rates and all works were done after previous resolutions of GramPanchayat. The expenditure incurred at each stage was placed before General Body and General Body had approved the same.
7. After this explanation, a PPO has been issued on 14th of February, 2002 and in it recovery of Rs.1,71,171/- is shown against the petitioner as per order dated 12th of November, 2001. Block Development Officer has accordingly sent a communication on 16th of March, 2013 to him.
9. Perusal of Circular issued by the State Government on the subject of valuation of such works done by GramPancyayat dated 25th of February, 2000 reveals that if any misappropriation is noticed, liability therefor should be fastened upon Gram-Sevak, Sarpanch, Extension Officer (construction), Junior Engineer and Deputy Engineer. The percentage of their responsibility and therefore liability is stated to be equal. Thus, resulting loss is required to be recover equally from all these Officers. Here 50% of the loss amount (alleged) is sought to be recovered from present petitioner only. Thus, there is violation of Circular dated 25th of February, 2000.
10. Petitioner has worked as GramSevak at Ashti in 1990-1991. During said period he also had additional charge of Gram Panchayat Antora and Gram Panchayat Khambit. The respondents have not shown that petitioner continued to serve either in Gram Panchayat Ashti or Antora or then Khambit even thereafter or then during the period in dispute for which recovery has been ordered as per order dated 12th of November, 2001. We have already stated supra that period of recovery at Karanja (Ghadge) is from the year 1994-95 till year 1999-2000.The period of recovery at Ashti is shown to be from 1990-1991 to 1991-1993. In order of punishment dated 12th of November, 2001 additional amount of Rs.40,455/- is also sought to be recovered but that amount does not figure anywhere in show cause notice given to petitioner.
11. Fact that petitioner superannuated in 2001 is not in dispute. Perusal of provisions of Rule 27(b) of the Maharashtra Civil Services Pension Rules, 1982 shows that no departmental enquiry can be instituted against a superannuated person without sanction of State Government. Such erquiry cannot be in relation to any event which occurred more than four years before his superannuation. Here, admittedly, no departmental enquiry has been instituted against the petitioner. He was not served with any show cause notice, no witnesses have been examined by prosecution and also no documents were produced before any enquiry Officer. In fact, no Inquiry Officer was appointed. Perusal of the Maharashtra Civil Services Pension Rules, 1982 shows that no departmental enquiry can be instituted against petitioner in present matter. It needs to be noted that he did not get opportunity to crossexamine any of the witnesses/officers or to question the valuation reports.
12. Material on record does not show that valuation reports were obtained within reasonable time of completion of work. If there is time gap between date of completion of work and its measurement, petitioner cannot be blamed as completed work cannot be seen. In any event, petitioner ought to have been given notice to remain present for the purpose of such valuation. Report of valuation procured behind his back could not have been made use of in such enquiry.
13. The petitioner has pointed out that amount of Rs.40, 454/-is sought to be recovered from him and that amount finds mention for first time in impugned order dated 12th of November, 2001. From records it is seen that petitioner was not informed about that amount or any such head of recovery.
14. Thus, valuation done behind back of petitioner is being used to his prejudice that too without giving him any opportunity to defend himself. The circular mentioned supra clearly shows that in this situation responsibility is required to be shouldered equally by various Officers. In present matter, Zilla Parishad has not pointed out action, if any, taken against the other employees, office berars or Sarpanch. If liability is to be shouldered equally, it is not clear why 50% of the amount is being recovered from petitioner. No special reasons for it are recorded in the impugned order.
15. The works at Gram Panchayats Ashti, Antora and Khambit as also the work for which amount of Rs.40, 454/-sought to be recovered are for a period prior to 1992-1993. Thus, these works are more than four years before the date of superannuation. Hence, as mandated under Rule 27(2) of the Rule of 1982, the respondent - Zilla Parishad could not have proceeded to take action against petitioner in relation thereto.
16. Work at Karanja (Ghadge) is from year 1994-1995 till 1999-2001. Going back four years, works completed prior to 28th of February, 1997, therefore, could not have been looked into except for first five works in impugned order dated 12th of November, 2001. The remaining five works at Karanja (Ghadge) are for period after 31st of March, 1997. The misappropriation is alleged only on account of difference in its worth in valuation report and actual expenditure. The impugned order does not show that records were verified or material as disclosed in records, was not received at all.
18. We, therefore, find that petitioner has been victimized and recovery from him is unsustainable. Order dated 12th of November, 2001 is therefore quashed and set aside. Respondent - Zilla Parishad is directed to pay to petitioner amount of Rs.1,71,171/- within period of four months from today. The amount shall be paid with interest as stipulated in Maharashtra Civil Services Pension Rule 1982.