PERDUMAN KRISHAN KHULLAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE Petitioner seeks issuance of Writ of Certiorari quashing Order No. PNRJ -1/J -F/1999 -2000/720 -21 dated 12. 10. 1999 and further writ of Mandamus directing the respondents to pay basic pension and gratuity less by the amounts which have already been paid by computing the same on the basis of the last pay drawn. The petitioner joined the Forest Department in the year 1969 and retired on 31. 1. 2000. His pension papers were prepared and sent to the Accountant General who raised an objection that the pay of the petitioner has not been fixed correctly as per SRO 370/87. It has been fixed Rs. 2440/ - per month instead of Rs. 2320/ - per month and asked the department to furnish the due and drawn statement for effecting recovery. The Conservator of Forest vide his letter dated 17. 12. 1999 annexed as Annexure P. 6 with the petition, relying upon the Article 242 of J&K Civil Services Regulations objected for re -fixation of the pay being earlier fixed in terms of the SRO -370/87 and re -submitted the case for release of amount of pension and other earned retired benefits. Despite that the petitioner has not been granted the benefit of pension, gratuity etc according to the last pay drawn by the petitioner. He has approached the court under such circumstances to seek relief prayed for. Petition was admitted to hearing provided opportunity to the respondents to file counter affidavit. Respondent No. 2 has only filed the reply stating therein that pay of the petitioner has not been properly fixed in the year 1987 while giving the benefits of pay revision in terms of the provisions of SRO 370/87. The respondent No. 4, Secretary Forest Department was provided numerous opportunities to file counter affidavit. He opted not to file the reply. On 22. 5. 2001 said respondent was directed to appear alongwith the record on the next date of hearing, specifically stipulating that if he opts not to appear alongwith the record it shall be presumed that he has no objections in granting the relief prayed for by the petitioner. He opted not to produce the record. Heard learned counsel for the parties and perused the pleadings. Learned counsel for the petitioner has submitted that the case of the petitioner has been processed by his Department in accordance with law and there is no excessive or wrong fixation of pay as pointed out by the respondent No. 2. The conservator of Forest Chenab Circle has also vide letter dated 71. 12. 1999 in reply to the letter of respondent No. 2 asked him to settle and release the pension of the petitioner according to pay fixed and reflected in the Service Book. He has also point out that the Service Book of the petitioner was checked by the Audit Party of the Respondent No. 2, who has not pointed out any wrong fixation of pay during the period out any wrong fixation of pay during the period of fourteen years. The plea of the learned counsel for the petitioner is that after the retirement of the petitioner, Respondents now cannot turn back and point out difference in fixation of pay fixed 14 years earlier. To deal with such irregularities he has point out the provisions contained in Article 242 of J&K Civil Service Regulations which reads as under: - "242. The term "Average emoluments" in respect of Government servants who retire on or after 1. 4. 1965, means the average calculated upon the last one year of service; Provided that in respect of Government servants who retire on or after 1. 1. 1976 the term "Average Emoluments shall mean the average calculated upon the last ten months of service". Government Instruction - - with effect from 1st January, 1976 the average emoluments are determined with reference to emoluments drawn during the last ten complete months. This work involves not merely an arithmetical calculation of the average emoluments but also a check of the correctness of the emoluments which enter into the calculation. The correctness of the emoluments on the first date of the ten months period would naturally depend on the correctness of the emoluments prior to this date. However any such check of the correctness of past emoluments, whether in the office preparing the pension papers or latter in the office responsible for issuing the pension payment order, should not become an occasion for an extensive examination going back into the distant past, the check should be the minimum which is absolutely necessary and it should in any case not go back to a period earlier than a maximum of twenty -four months preceding the date of retirement". He has also relied upon the judgement delivered in case Randhir Singh & Ors. v. State of Punjab and another, 1996 (6) SLR 391, where the respondents ordered recovery of excess payment made due to fixation of pay by mistake. The court ruled that the petitioners never mis -represented if recovery is effected, the petitioners would be put to considerable hardship. He has also relied upon the judgement delivered in case titled Sahib Ram v. State of Haryana and others, 1994 (5) SLR 753 wherein dispute was that petitioners were given the higher pay, and recovery was directed, the court held that: - "It is not on account of any mis -representation made by the appellant that the benefit of higher pay -scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant". In a similar case titled Swami Raj Sharma v. Accountant General, Srinagar, (SWP No. 364/94), at the time of release of pension and gratuity, respondents ordered deduction from the gratuity amount on the ground of wrong fixation of pay, 14 years earlier. The court observed that the pay of the petitioner was affixed and in this petitioner had no hand in such fixation and the court has observed as under: - - "...On consideration of the matter, it is transpired that the petitioners pay was fixed at the relevant time by the then Divisional Commissioner and in this he had no hand. The sole question that arises for consideration, therefore, is whether he could be faulted for this and whether any amount found to have been drawn by him in excess on this account could be deducted from his gratuity about 14 years after the event without any notice to him. Petitioner has relied upon a number of judgements to urge that the action impugned is violative of the principles of natural justice and that the amount was not recoverable from him after a prolonged delay of about 14 years. In face of the admitted position that the impugned order has been passed at the back of the petitioner, there is no option but to accept his case and allow this writ petition. This is so far the reason that the amount in question could not be deducted at the back of the petitioner and without following the principles of natural justice and that the same could not be recovered from him after a delay of about 14 years. In the circumstances this petition is allowed and the respondents are directed to take steps to release the disputed amount of Rs. 12,708/ - to the petitioner within one month from the date of receipt of this order".

(2.) The case of the petitioner squarely falls within the ambit of the aforesaid judgements. The petitioner has not fixed his pay. The Respondent -2 through his Audit Party has also examined and verified the service record of the petitioner which has not been denied by the said respondent. After the retirement if recovery is effected it shall result in great hardship to the petitioner who is claimouring for pension and other benefits. Other respondents have not filled counter -Affidavit controverting the averment of the petition and claims of the petitioner which are required to be taken true in view of the law laid down by this Court judgement reported in 1995 KLJ, P. No. 42. For the aforesaid reasons, petition is allowed and the impugned order is set -aside. The respondents are directed to release the pension and gratuity leas by amount already paid, computing the same on the basis of last pay drawn by the petitioner.