HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH WEDNESDAY THIS THE TWELFTH DAY OF NOVEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE R.KANTHA RAO WVMP.No.2553/2014
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WRIT PETITION No.23441 of 2014
Between:
The Telegraph Engineering Employees Staff Mutually Aided Cooperative Credit Society Limited, Rep.by its Secretary P.Jownnes Reddy, Warangal And The Bharat Sanchar Nigam Limited, Rep.by General Manager, Telecom District, Karimnagar, Karimnagar District and 2 others . PETITIONER . RESPONDENTS The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO WVMP.No.2553/2014
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WRIT PETITION No.23441 of 2014
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking a Writ of Mandamus, declaring the action of the respondents 1 and 2 in not effecting recovery from the 3rd respondent retiral benefits towards the loans advanced by the petitioner Society as illegal, violative of provisions of A.P.Mutually Aided Cooperative Societies Act 1995 and A.P.Cooperative Societies Act, 1964 and consequently direct the respondents 1 and 2 to effect recovery from the pay and retiral benefits of the 3rd respondent as per the agreements entered into between the parties.
I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 3rd respondent.
Briefly stated, the following are the averments made in the affidavit filed in support of the writ petition;
The petitioner is the Telegraph Engineering Employees Staff Mutually Aided Cooperative Credit Society Limited. The 3rd respondent was an employee worked as Telecom Mechanic in the 1st respondent Organization. According to the petitioner Society, the 3rd respondent availed loans from it and also stood as guarantor to some other employees who availed the loans from the petitioner society. The 3rd respondent entered into agreements with the petitioner society and also gave authorization to deduct amounts from his salary towards satisfaction of the aforesaid loans. Ultimately, according to the petitioner, huge amounts became due from the 3rd respondent and the 1st respondent was not making recoveries as per the schedules furnished by the petitioner. It is said that there is statutory obligation on the 1st respondent to deduct the amounts every month from the salary of the 3rd respondent as per the schedules furnished by the petitioner.
Earlier, the 3rd respondent filed a writ petition being W.P.No.11588/2013 seeking not to effect any recovery from his salary. In the said writ petition, this Court passed an order directing the parties to maintain status quo. The present writ petition is filed stating that the 3rd respondent was due to retire by the end of July, 2014 and unless the amounts are ordered to be recovered by the 1st respondent from the salary and retiral benefits of the 3rd respondent, the petitioner society may not be in a position to recover the dues from the 3rd respondent.
This Court initially while issuing notice before admission, granted an interim direction to the 1st and 2nd respondents not to pay the retiral benefits to the extent of the amount due to be paid by the 3rd respondent to the petitioner Society.
The 3rd respondent filed vacate stay petition seeking to vacate the said order. Along with the vacate stay petition, the 3rd respondent filed counter. The principal contention of the 3rd respondent is that the writ petition itself is not maintainable as no recoveries can be directed from the pensionary benefits of the petitioner and there is no such provision in the Central Civil Services (Pension) Rules, applicable to the 3rd respondent. It is contended that the petitioner has not been furnishing any details regarding the amounts due from the 3rd respondent, but the recoveries were being effected from the salary of the 3rd respondent over and above the amount due without establishing the liability. However, this is the subject matter in the writ petition No.11588/2013 filed by the 3rd respondent earlier.
It is submitted by the 3rd respondent that he retired from service on 31.07.2014, but his retiral benefits have not been released. His contention is that once an employee retired from service, a duty is cast upon the employer to release the retiral benefits unless there are any disciplinary or other judicial proceedings pending against him. Therefore, the contention of the 3rd respondent is that the writ petition itself is not maintainable as there is no provision in the Central Civil Services (Pension) Rules applicable to the 3rd respondent authorizing the employer to withhold any part of pensionary benefits.
Since the maintainability of the writ petition itself is raised in the vacate stay petition, this Court heard the main writ petition itself.
In Central Civil Services (Pension) Rules there is no provision for withholding any pensionary benefits in the absence of any disciplinary or judicial proceedings pending against the employee. In the instant case, obviously the recoveries were being effected basing on the schedules furnished by the petitioner society and according to the petitioner, it is basing on the agreements arrived at between the petitioner society and the 3rd respondent.
Since the 3rd respondent retired from service, the question requires to be considered in the writ petition is whether the writ petition filed by the petitioner seeking a direction to recover the amounts due from the pensionary benefits of the 3rd respondent is maintainable.
The issue similar to one involved in the present writ petition fell for consideration before the Hon’ble Supreme Court of India in State of Jharkhand & Ors. Vs Jitendra Kumar Srivastava & Anr. Wherein it was held that;
“A person cannot be deprived of his pension without the authority of law, which is the Constitutional mandate enshrined in Article 300A of the Constitution. It follows that attempt of the Employer to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the Employer cannot withhold-even a part of pension or gratuity. So far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in the rules, the position would have been different.”
In the instant case also there is no provision in Central Civil Services (Pension) Rules for withholding any pensionary benefits in the absence of any disciplinary or judicial proceedings pending against the employee. There are no departmental or judicial proceedings pending against the 3rd respondent. The recoveries sought to be made are basing on the schedules furnished by the petitioner society.
The question which falls for consideration in the present writ petition is different from the issue raised in the earlier writ petition filed by the 3rd respondent. In the earlier writ petition the issue was whether basing on the agreements entered into between the parties or undertakings given by the 3rd respondent, deductions can be made from his salary. The issue in the instant case is after retirement, whether the employer has any authority to withhold the pensionary benefits in the absence of any specific provision in the Pension Rules applicable to the 3rd respondent. In Central Civil Services (Pension) Rules there is no provision authorizing the employer to withhold the pensionary benefits of an employee in the absence of any departmental or judicial proceedings pending against him. The relief prayed for in the present writ petition is contrary to the provisions of the Central Civil Services (Pension) Rules applicable to the 3rd respondent. The writ petition therefore is not maintainable.
Accordingly, the Writ Petition is dismissed. Consequently, WVMP No.2553/2014 is allowed and the interim order dated 21.08.2014 is hereby vacated. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed in consequence.
R.KANTHA RAO,J Date: 12.11.2014 Dsr