Manohar Vitthal Devghare, Nagpur vs Office Of The Accountant General, ...
2017 Latest Caselaw 7664 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               NAGPUR BENCH : NAGPUR


                       WRIT PETITION NO. 2716 OF 2002


              1.  Manohar s/o Vitthal Devghare,
                   Aged about 56 years, 
                   R/o. Plot No.158, Parate                        Dead
                   Bhavan, Binaki Layout, 
                   New Anand Nagar, Nagpur.

              Legal Representatives of Petitioner :--
              a]  Smt. Tulsibai Manohar Deoghare (Wife),
                   Occ. - Nil, Age - 59 years,
                   R/o. Plot No.158, Parate
                   Bhavan, Binaki Layout, 
                   Nagpur.

              b]  Deepak Manohar Deoghare (Son),
                   Occ. : Service, Age - 39 years,
                   R/o. Plot No.158, Parate
                   Bhavan, Binaki Layout, 
                   Nagpur.

              c]  Mrs. Rajni Ravindra Dhakate (Daughter),
                   Occ. - Nil, Age - 37 years,
                   R/o. Plot No.699, Binaki Layout, 
                   Anand Nagar, Near Nikunj School,
                   Nagpur-17.

              d]  Mrs. Rupa Sanjay Ambulikar (Daughter),
                   Occ. - Nil, Age - 35 years,
                   R/o. Juni Mangalwari, Gujar Chowk,
                   Nagpur.

              e]  Kamlesh Manohar Deoghare (Son),
                   Occ. - Service, Age - 33 years,
                   R/o. Plot No.158, Parate
                   Bhavan, Binaki Layout, 
                   Nagpur.                                ...      PETITIONER

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              1.  Office of the Accountant General,
                   Mah-II (A&E), Nagpur
                   through its Accounts Officer

                 2.  The Dy. Director of Education,
                       Nagpur Region, Nagpur.

              3.  The Education Officer (Sec.)
                   Zilla Parishad, Nagpur.

              4.  The Secretary, 
                   Rashtra Seva Samaj, 
                   270/A, Laxmi Nagar,
                   Nagpur.

              5.  The Head Master,
                   Rashtra Seva Vidyalaya,
                   Kumbharpura, Lalganj,
                   Nagpur.                                ...        RESPONDENTS


           =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                  Mr. A.D. Mohgaonkar, Advocate for Petitioner.
             Mr. C.A. Lokhande, Advocate for Respondent Nos.1 to 3.
             Mr. R.S. Parsodkar, Advocate for Respondent Nos.4 & 5.
           =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

                           
                                      CORAM :  R.K. DESHPANDE & 
                                                      MANISH PITALE, JJ.

DATED : September 28, 2017.

ORAL JUDGMENT (PER MANISH PITALE, J.)

The petitioner has filed this writ petition

challenging the action on the part of the respondent Nos.1,

2 and 3 in recovering an amount of Rs.33,389/- from

gratuity and pension payable to him. During the pendency

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of the writ petition, the petitioner expired and his legal

representatives are brought on record.

2. The petitioner was working in respondent No.5

school run by respondent No.4 management since 1971 on

the post of peon. On 21.03.1998 the petitioner submitted

an application for voluntary retirement to the management.

As per the relevant Government Resolution dated

09.09.1988, such an application for voluntary retirement

was to come into effect on the expiry of the period of three

months, and upon no response being given by the

management, the employee submitting the application for

voluntary retirement would stand retired on expiry of the

period of three months from that notice. In the instant

case, the respondent management communicated no

response to the said application dated 21.03.1998

submitted by the petitioner.

3. It is also an undisputed fact that even after

expiry of the period of three months from 21.03.1998, the

petitioner was continued in service on the said post. It was

only on 14.03.1999 that a Resolution was passed by

respondent No.4 management accepting the application

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dated 21.03.1998 for voluntary retirement submitted by the

petitioner, and it was resolved that the petitioner stood

retired with effect from the expiry of three months period

after 21.03.1998. Upon this Resolution being passed on

21.03.1998, at the end of March, 1999, the petitioner

ceased to be in service.

4. Thereafter, respondent No.3, the Education

Officer, issued communication dated 14.09.1999 to

respondent No.2, the Dy. Director of Education, stating that

for the period between June, 1998 to March, 1999, the

petitioner had not authorizedly worked on the said post and

that therefore, an amount of Rs.33,389/- was to be

recovered from the gratuity and pension payable to him. In

pursuance of the said communication, respondent No.2, the

Dy. Director of Education, sent a letter to respondent No.1,

office of the Accountant General, Nagpur, stating that the

aforesaid amount of Rs.33,389/- was required to be

deducted or recovered from the gratuity amount payable to

the petitioner. Consequently on 29.10.1999, respondent

No.1 issued order directing that the said amount of

Rs.33,389/- for the period between 24.06.1998 to

31.03.1999 be recovered from the gratuity payable to the

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petitioner as the said amount was allegedly paid excess to

the petitioner.

5. Mr. A.D. Mohgaonkar, learned counsel for the

petitioner, submitted that it is an undisputed fact that the

petitioner continued in service till March, 1999 and that he

was paid the aforesaid amount towards salary for the

services rendered by him. It was contended by him that it

was no fault of the petitioner that despite his application for

voluntary retirement submitted on 21.03.1998, he was

continued in service beyond the period of three months

thereafter and upto March, 1999. As no fault could be

attributed to the petitioner and also the fact that he had

actually worked for the period from 21.03.1998 to March,

1999, the recovery of the said amount from the gratuity

and pension of the petitioner was wholly unjustified.

6. Mr. Ram Parsodkar, learned counsel for

respondent Nos.4 and 5, submitted that Resolution dated

14.03.1999 passed by respondent No.4 was justified

because the petitioner was permitted to work beyond June,

1998 because of the fault of the Head Master of the school.

Mr. Lokhande appearing for respondent Nos.1, 2 and 3

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justified the action of recovery undertaken by the said

respondent on the ground that the petitioner was deemed

to have retired in June, 1998.

7. We heard the learned counsel for the parties and

having perused the record, we find that no fault can be

attributed to the petitioner for having worked between the

period June, 1998 to March, 1999. Despite the fact that the

Government Resolution dated 09.09.1998 stipulated that

on the expiry of period of three months from the

application submitted for voluntary retirement, the

employee would stand retired, the petitioner was allowed

to continue in service and he in fact served for the period

between 24.06.1998 to 31.03.1999. It was for this period

of service that he was paid salary, which was later sought to

be recovered by the respondents. We find that the action of

respondent No.3, the Education Officer, in sending

communication dated 14.09.1999, which is the basis for

recovery of an amount of Rs.33,389/- from the petitioner, is

wholly unjustified. Respondent No.2, the Dy. Director of

Education, has also not enquired into the matter in the

proper perspective and he has simply communicated

requirement of such recovery on the basis of the

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communication sent by respondent No.3, the Education

Officer. The fact that the petitioner actually worked up to

March, 1999 and he continued in service beyond three

months service from 21.03.1998, cannot be said to be on

the basis of any fraud or manipulation on the part of the

petitioner or that it resulted in causing any loss to the

Government. Such action of recovery by respondent Nos.1

to 3 could not have been undertaken.

8. Although by operation of Government

Resolution dated 09.09.1988, even if it is presumed that the

petitioner stood retired on 21.06.1998 i.e. on expiry of

three months period from 21.03.1998, there is no dispute

about the fact that he continued in service upto March,

1999. The payment of salary for the said period to the

petitioner could not have been denied under any

circumstances. We find that action of recovery undertaken

by respondent Nos.1 to 3 was wholly arbitrary and

unjustified and that therefore, the writ petition deserves to

be allowed. Accordingly, we allow the writ petition and

quash and set aside the letters/orders dated 14.09.1999

passed by respondent No.3, 06.10.1999 passed by

respondent No.2 and 29.10.1999 passed by respondent

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No.1. The amount of Rs.33,389/- recovered from the

gratuity and pension of the petitioner shall be refunded to

the legal representatives of the petitioner along with

interest @ 18% per annum from the date of recovery till the

actual date of refund. The said refund shall be made within

a period of three months from the date of receipt of this

order.

9. Rule made absolute in the above terms. No

order as to costs.

                                   JUDGE                           JUDGE

                      waghmare