SHUKHI RAM YADU Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) In W.P.S. No. 3794 of 2018, the petitioner challenges the recovery order dtd. 26/2/2018 for Rs.8,45,649.58 under Sec. 89 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993, alleging it was passed without due inquiry or jurisdiction and recovery of Rs.88,129.00 under Sec. 92 was also ordered without summons. The petitioner claims the order is illegal, malafide, and seeks quashing. In W.P.S. No. 1683 of 2021, the petitioner contests recovery proceedings initiated under Sec. 92, asserting that Sec. 89 alone applies and only the Collector has jurisdiction. Recovery orders were passed despite this error, and the petitioner seeks correction of this legal mistake.. Through these writ petitions, the petitioner seeks the following reliefs : -

(2.) The brief facts of the case, in a nutshell, are that the petitioner in WPS No. 3794 of 2018 is an Internal Audit and Taxation Officer, who previously held the position of Secretary of Village Panchayat Rasmada. On 14/7/2014, he was suspended by respondent no. 3 , and a charge-sheet was served on him on 12/8/2014. The departmental enquiry related to the charges is currently ongoing before the competent authority. Subsequently, on 6/2/2016, the petitioner was directed by notice to deposit Rs.4,41,064.50, representing 50% of the alleged unrealistic expenditure amounting to Rs.8,82,129.00. The notice also mentioned that recovery proceedings for the remaining half were initiated against the Ex- Sarpanch under Sec. 92 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the Act of 1993), who had already deposited his share. However, the petitioner contends that he was never served any notice or proceedings under Sec. 92, nor was any enquiry conducted to ascertain his liability before directing recovery. The petitioner promptly responded to the notice, explaining his suspension status at the time and highlighting that he was not given any opportunity of hearing before the recovery order was passed. Further notices dtd. 2/3/2016 reiterated the demand for recovery of Rs.4,41,064.50, threatening consequences for non-compliance. The petitioner replied again reiterating the lack of any prior hearing or enquiry. Meanwhile, the departmental enquiry report was submitted on 6/6/2016 to respondent no. 3, and the Director Panchayat called for the representation of petitioner on the enquiry report via a show cause notice dtd. 9/5/2017. The petitioner submitted his reply, but the matter remains pending with the Director Panchayat. On 13/1/2017, respondent no. 3 forwarded a recovery table to respondent no. 2, requesting registration of a recovery case under Sec. 89 of the Act of 1993. Initially, recovery cases were also forwarded to the Sub Divisional Officer, Durg, for recovery against two former Sarpanchs under Sec. 92. However, objections were raised that the matter was not within the jurisdiction of the Sub Divisional Officer but was to be handled exclusively by the Collector under Sec. 89. Consequently, the case was redirected to respondent no. 2. The petitioner also filed WPS No. 2384/2018 challenging his suspension and departmental enquiry based on the same allegations, resulting in a Court order dtd. 19/3/2018 directing the competent authority to consider revocation of his suspension and to take a decision on the enquiry report. Despite this, on 26/2/2018, respondent no. 2 passed the impugned order directing recovery of Rs.8,45,649.58 from the petitioner under Sec. 89, which the petitioner claims is illegal, passed without jurisdiction, and in violation of due process and principles of natural justice. In WPS No. 1683 of 2021, the petitioner, who was working as Antrik Lekha Parikshan Adhikari at Janpad Panchayat Durg, retired on 31/12/2020. Earlier, Panchayat case No. 37 A 89/2013-14 had been registered under Sec. 92 before respondent no. 4, who directed recovery of Rs.91,002.50 from the petitioner by order dtd. 27/8/2014. The petitioner preferred an appeal before the Collector, respondent no. 3, which resulted in the modification of the recovery amount to Rs.1,18,232.50 by order dtd. 17/10/2016. Subsequently, the petitioner filed a revision before respondent no. 2 (Commissioner, Durg), which was dismissed by order dtd. 24/10/2019. The petitioner contends that the Collector erred in law by treating the matter as one under Sec. 92, whereas it should have been proceeded with under Sec. 89 of the Act. The petitioner argues that only the Collector is competent to initiate and adjudicate proceedings under Sec. 89, which mandates an independent enquiry respecting the principles of natural justice, including providing an opportunity of hearing. According to the petitioner, the Collector erroneously relied on a recovery table forwarded by respondent no. 6 and passed recovery orders without initiating proper proceedings under Sec. 89. The petitioner also refers to the WPS No. 3794/2018, where this Court granted interim relief by order dtd. 18/5/2018, further underscoring the illegality of the impugned recovery orders in his case. The orders dtd. 17/10/2016 and 24/10/2019 are illegal, arbitrary, and passed in gross violation of the statutory provisions, natural justice, and the petitioner's fundamental rights. The recovery orders are not only procedurally flawed but also lack jurisdictional validity, as no proper enquiry was conducted to establish liability of petitioner, and he was not afforded any opportunity to defend himself before the orders were passed.

(3.) Learned counsel for the petitioner submits that the petitioner has approached this Court by filing two separate writ petitions challenging the illegal, arbitrary, and unlawful actions taken against him under the guise of recovery proceedings and departmental enquiries. The entire sequence of actions initiated by the respondents is vitiated by non-compliance with mandatory procedural safeguards, particularly the provisions of Sec. 89, which have been wholly ignored by the authorities. In Writ Petition No. 3794/2018, the petitioner was suspended on 14/7/2014 based on a charge sheet issued by the CEO, Zila Panchayat, alleging financial irregularities. Thereafter, on 6/2/2016, a recovery notice was issued directing the petitioner to deposit Rs.4,41,064.00 towards 50% of the alleged expenditure of Rs.8,82,129.00. This notice explicitly mentions that the Ex- Sarpanch has been proceeded against under Sec. 92 and has already deposited half of the amount. However, the petitioner was never served with any show cause notice under Sec. 92 or Sec. 89, nor was he afforded any opportunity to be heard before issuance of the recovery notice. The petitioner duly replied on 12/2/2016, highlighting this grave procedural lapse. The recovery notice dtd. 2/3/2016 was issued without following due process or affording the petitioner the opportunity of a proper hearing, thereby violating the fundamental principles of natural justice and the statutory mandates of the Act. Although a departmental enquiry was initiated, the report was forwarded only on 6/6/2016, and subsequent recovery orders passed by respondent No. 2 on 26/2/2018 directing recovery of Rs.8,45,649.58 were wholly without jurisdiction, as no inquiry under Sec. 89 was conducted before passing such orders. It is submitted that the respondent No. 2 acted as an executing authority rather than a fact-finding authority and failed to conduct any independent inquiry, which is mandatory before ordering recovery under Sec. 92. In a similar vein, in Writ Petition No. 1683/2021, the petitioner was subjected to recovery proceedings initiated by the Sub Divisional Officer (SDO) without the issuance of any show cause notice under Sec. 89 and without affording the petitioner any hearing. The order passed by SDO dtd. 27/8/2014 held the petitioner liable for recovery of Rs.91,002.50, which was later modified by the Collector in an appeal to Rs.1,18,232.50, based solely on a recovery table forwarded by respondent No. 6, without any independent examination of evidence or issuance of show cause notice. The revision preferred before the Commissioner was dismissed, perpetuating the illegal recovery. The petitioner retired from service on 31/12/2020, yet the illegal recovery proceedings and denial of his rightful retirement benefits and pension continue. It is submitted that the recovery proceedings initiated under Sec. 92 without prior and independent inquiry under Sec. 89 are null and void ab initio. The authorities failed to comply with the mandatory provisions of the Act which require the competent authority, namely the Collector, to initiate an independent inquiry by issuing a show cause notice under Sec. 89 before initiating recovery proceedings. The impugned recovery orders, therefore, suffer from non-application of mind, denial of opportunity of hearing, and are in gross violation of principles of natural justice and statutory procedure. The petitioner has been unfairly prejudiced and deprived of his legitimate retirement benefits and pensionary rights due to these flawed proceedings. In view of the above facts and circumstances, and relying upon the principles laid down by the Hon'ble Supreme Court in the matter of Kadam Singh vs. CEO and others, reported in 2016 SCC OnLine MP 12064 and decision of this Court in the matter of Ajay Kurre vs. State of Chhattisgarh and others (WPS No. 6990/2024), and Yogeshwari Sahu vs. State of Chhattisgarh and others (WPS No. 4683/2025), it is submitted that the impugned recovery orders be quashed and set aside, and the petitioner be granted all pending retirement benefits, pensionary benefits, and consequential reliefs.