Recovery From Pension Of A Retired Employee Permissible Only If Loss Is Established During Service: Jammu & Kashmir And Ladakh High Court
The High Court held that the Government can recover losses from the pension of a retired employee only when such loss, caused by negligence or fraud, has been duly established in judicial or departmental proceedings conducted in accordance with law during the period of service.
Justice Sanjeev Kumar, Justice Sanjay Parihar, Jammu & Kashmir and Ladakh High Court
The Jammu & Kashmir and Ladakh High Court held that recovery from the pension of a retired Government employee is permissible only when it is proved that the loss to the Government was caused by the negligence or fraudulent act of the employee during service, and such loss has been duly established in judicial or departmental proceedings.
The High Court was hearing a writ petition filed by a retired police officer challenging the order issued by the Government directing the recovery of the remuneration he had received from a sports association during his tenure in service.
A Division Bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar, while deciding the matter, observed, “Indisputably, to this general principle of service jurisprudence that a retire employee cannot be subjected to disciplinary proceedings for his acts and omissions committed by him during his service career, there is an exception embodied in Article 168-A of the Regulations of 1956. We need not to delve deep into the interpretation of Article 168-A of the Regulations of 1956, as the same has been thoroughly examined in UT of J&K and others v. Qazi Qamer U Din decided by this Court”.
Advocate Parveen Kapahi appeared for the petitioner, while Monika Kohli, Senior Additional Advocate General, represented the respondents.
Background
The petitioner, a retired Deputy Superintendent of Police, was alleged to have held an additional position as Joint Secretary of the Jammu and Kashmir Cricket Association while still serving in the police department, without obtaining prior permission from the Government as required under the Jammu and Kashmir Government Employees (Conduct) Rules, 1971.
Proceedings were initiated against him, and the Government passed an order directing the recovery of the amount he had received as remuneration from the sports association. A tribunal upheld the recovery, relying on Regulation 168-A of the Jammu and Kashmir Civil Service Regulations, 1956. Aggrieved by this decision, the petitioner approached the High Court.
Court’s Observations
The J&K and Ladakh High Court, while examining Regulation 168-A of the Jammu and Kashmir Civil Service Regulations, 1956, noted that while it empowers the Government to recover from pension any amount representing loss caused by negligence or fraudulent acts, such power is not absolute. The Bench explained that recovery under this provision is conditioned upon a finding that loss was actually caused to the Government and that such loss was duly established through proper proceedings in accordance with law, during the service of the concerned employee.
Relying on its earlier decision in UT of J&K v. Qazi Qamer U Din, the Court reiterated that the language of Regulation 168-A is clear in limiting the scope of recovery to proven instances of loss caused by negligence or fraud during the employee’s tenure.
In UT of J&K v. Qazi Qamer U Din, the J&K and Ladakh High Court had ruled that “the plaint reading of Regulation 168-A, clearly suggests that the Government is empowered to order the recovery from pension of an officer of any amount, which represents the losses caused to Government by the negligence or fraudulent act of such officer during his service.”
The Court noted that in the present case, during the service tenure of the employee, no judicial or departmental proceedings had determined that any pecuniary loss had been caused to the Government by the petitioner’s conduct. The disciplinary proceedings initiated against the petitioner were confined to the charge of misconduct for holding an external assignment without Government permission, and not to the issue of financial loss or fraud.
Accordingly, the Bench observed that the finding of misconduct alone could not justify recovery under Regulation 168-A in the absence of any proof that the Government had suffered loss as a result of the petitioner’s actions.
Conclusion
The J&K and Ladakh High Court held that since no finding of loss to the Government had been established through any judicial or departmental proceeding, the order directing recovery from the petitioner’s pension was without authority of law.
Allowing the petition, the Bench set aside the portion of the Tribunal’s order that upheld the recovery and quashed the Government order, which had directed the deduction of the remuneration received by the petitioner from his pension.
Cause Title: Sudarshan Mehta v. The Union Territory of Jammu & Kashmir and Others.
Appearances
Petitioner: Advocate Parveen Kapahi
Respondents: Monika Kohli, Senior Additional Advocate General