KHAGESWAR NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner in this writ application has prayed for:

(2.) THE petitioner was working as a Driller in the Orissa Lift Irrigation Corporation and was serving at Baripada and who refired on attaining the age of superannuation with effect from 28th February, 1995. Few days before retirement, the Junior Engineer, Lift Irrigation (M) Sub Division, Baripada vide office letter dated 21.2.1995 intimated the Assistant Engineer, LI(M) Sub Division, Baripada that there was shortage of materials (52 items) and the petitioner was responsible for such shortage. Thereafter, the petitioner by letter dated 23.6.1995 was asked to return the materials for issuance of No Demand Certificate By that time the petitioner had already retired from service. Two days thereafter, the Director, Lift Irrigation vide memo dated 26,6.1995 requested the Accountant General, Orissa to issue necessary authority slip for remitting the retirement benefits payable to the petitioner. On 25.8.1995 the Executive Engineer once again directed the petitioner to return the materials for preparation of the pension papers. The petitioner had handed over the charge to one Mohan Gouda, the then Junior Engineer but the allegation of shortage of materials was not taken into consideration. The petitioner again made a representation to the Superintending Engineer on 9.10.1995 for processing the pension papers and the Superintending Engineer vide his letter dated 26.10.1995 requested the Executive Engineer to submit the pension papers along with other documents. However, the Executive Engineer informed the Superintending Engineer on 1.11.1995 that so long as No Demand Certificates are not obtained from different departments, the pension papers could not be submitted. By letter dated 20.2.1996 the petitioner was intimated that his successor who had taken over charge from him has intimated that 26 numbers of materials are still outstanding against the petitioner and a request was made to the petitioner to return the materials. At this stage, the Director of the Corporation by letter dated 26.4.1996 requested the Superintending Engineer to submit the final NDC showing the details of materials outstanding against the petitioner with their monetary value. After the said requirements were obtained, the Service Book of the petitioner along with relevant pension papers were sent to the Accountant General for issuing order regarding disbursement of retirement benefits such as pension, gratuity, commutation value of pension etc. The value of the materials not returned as alleged was assessed at Rs. 19,082/ and it was intimated by the Executive Engineer on 30th September, 1996 that the petitioner having failed to return the materials and the aforesaid amount having not been recovered from the petitioner, NDC cannot be issued. Ultimately on 4.3.1998 the Director of the Corporation wrote to the Accountant General to take necessary steps for finalisation of the gratuity after withholding Rs. 19,082/ till clearance report is received. Accordingly, Rs. 19,082 was withheld from the gratuity of the petitioner and the rest amount was pad. The said amount having been withheld from the gratuity, the petitioner has approached this Court challenging the action of opposite parties in withholding the said amount. All the three prayers relate to the question as to whether the petitioner is liable to return the said amount/materials or not and for non return of the materials as alleged, gratuity can be withheld.

(3.) THERE is no dispute that the petitioner retired from service on attaining the age of superannuation on 28.2.1995 and a week before his retirement the Junior Engineer had intimated the Assistant Engineer regarding shortage of materials. There is also no dispute that the petitioner was requested to return the materials. There is no dispute that in Annexure A/1 the petitioner consented for withholding of Rs. 19,082/ from the gratuity. The question that arises for consideration is whether such an amount can be recovered from the, gratuity of the petitioner without any inquiry being made even on the face of the consent given by the petitioner. In this connection, reference may be made to Rule 7 of the Orissa Civil Services (Pension) Rules, 1992 :