SYLVERIUS BARWA vs STATE OF CHHATTISGARH

Court: Chhattisgarh High Court
Case type: WRIT PETITON SERVICE MATTER
Decided on: 02-04-2026

<div> 1 2026:CGHC:15342 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 7986 of 2023 Judgment Reserved On : 10.02.2026 Judgment Delivered On : _ 02.04.2026 Sylverius Barwa S/o. Shri Anthres Barwa, Aged About 66 Years R/o. Ward No.3, Imlibhata Mahasamund, District - Mahasamund, Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through - The Secretary, Higher Education Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Atal Nagar, District - Raipur, Chhattisgarh. 2 - The Director Treasury Account And Pension Raipur Division, District - Raipur, Chhattisgarh. 3 - The Additional Director, Higher Education Directorate Block -3, 2nd & 3rd Floor, Indravati Bhawan, Naya Raipur, District - Raipur, Chhattisgarh. 4 - The Commissioner, Higher Education Department, Block -3, 2nd & 3rd Floor, Indravati Bhawan, Naya Raipur, District - Raipur, Chhattisgarh. 5 - The Principal Government Mahaprabhu Vallabhacharya Postgraduate College, Mahasamund, District - Mahasamund, Chhattisgarh. ... Respondent(s) (Cause Title downloaded from CIS Periphery) 2 For Petitioner(s) : Mr. Prafull Bharat, Senior Advocate with Mr. Keshav Dewangan, Advocate 2026:CGHC:15342 For Respondent(s) : Mr. Dilman Rati Minj, Dy. AG S B: Hon’ble Mr. Justice Amitendra Kishore Prasad C A V Order 1. By way of this petition, the petitioner seeks to challenge the order dated 7.12.2022 (Annexure P/1), whereby the Additional Director, Directorate of Higher Education, Raipur, directed the recovery of a sum of Rs.6,75,288/- from the gratuity of the petitioner. The petition further challenges the impugned order dated 08.12.2022 (Annexure P/2), issued by Respondent No.5 in compliance with the aforementioned order, sanctioning the said deduction. Further, the petitioner seeks to set aside the order dated 10.12.2022 (Annexure P/3), under which the recovery of Rs.6,75,288/- was formally effected by Respondent No.5. 2. The petitioner has prayed for the following reliefs in the petition : 10.1 To call for the records of the case for kind perusal of this Hon’ble Court. 10.2 To issue an appropriate writ or order and declare that the order dated 07.12.2022 (Annexure P- 1), 8.12.22 (Annexure P- 2) & 10.12.22 (Annexure P- 3) are illegal, bad in law and without jurisdiction. 10.3 To issue an appropriate writ or order and quash the order dated 07.12.22 (Annexure P-1), 08.12.22 (Annexure P-2) & 10.12.22 (Annexure P-3). 3 10.4 To issue an appropriate writ or order and direct 2026:CGHC:15342 the respondents to disburse the illegally withheld gratuity of Rs.6,75,288/- along with interest @ 18% per annum. 10.5 To issue an appropriate writ or order and direct for initiation of penal proceedings against res.no.3 & 5 for non compliance of mandatory requirement of Gratuity Act. 10.6 Any other relief deemed fit in the facts and circumstances of the case may also be granted. 3. Necessary facts of the case are that the petitioner was working as an Assistant Professor at Government Mahaprabhu Vallabhacharya Postgraduate College, Mahasamund. During his tenure, consequent to the demise of the then Librarian in the year 1996, the petitioner was assigned additional charge of the library as a stop-gap arrangement. However, at the time of such assignment, no formal process of “handing over” or “taking over” of library records was conducted nor was joint physical verification of the library inventory performed. During such period, several other Professors were also igiven charge of the library, further obscuring the chain of responsibility. Meanwhile, one Ashok Das, Book Lifter, who was then handling the physical custody of the library, got transferred. On 16.9.2010, one Suraj Ram Rate was posted in the said College as regular Librarian. Thereafter In- charge Principal Dr. Jaya Thakur, Professor (Department of Social 4 Science) directed Suraj Ram Ratre to assume formal charge of 2026:CGHC:15342 the library. However, this transition was again done without a verified baseline of existing stock. The petitioner superannuated on 30.6.2021 and at that point of time, the respondents issued a ‘No Enquiry No Case’ Certificate. Thereafter, when the petitioner made a prayer for release of his retiral dues, he was served with a show cause notice regarding alleged missing books. Thereafter, a Committee was constituted which submitted a report stating that 12,368 nos. of books, valued at Rs.13,50,576/ were found missing. Despite the petitioner’s numerous representations, his dues remained unpaid, prompting him to file WPS No.6554/2022. This Court vide order 18.10.2022 disposed of the said writ petition with a direction to the respondent authorities to conclude the enquiry and decide the representation of the petitioner. In view of the above order, the pension and other retiral dues were paid but the gratuity of the petitioner was withheld. Hence, this petition. 4. Learned counsel for the petitioner would submit that the deduction is per se illegal, as no sanction under Rule 9 of the MP (CG) Civil Services (Pension) Rules, 1976 (in short “the Rules, 1976”), was ever obtained. He submits that the since the petitioner was not terminated from services on the grounds of grave misconduct or gross negligence, his gratuity cannot be forfeited. The Committee submitted the alleged Enquiry Report to respondents 3 & 4, however, respondent No.3 without issuance of any show cause notice and without conducting an enquiry, as provided under the C.G. Civil Services (Classification, Control & Appeal) Rules, 1996, 5 ordered the deduction from the gratuity of the petitioner on mere 2026:CGHC:15342 assumptions. He submits that no departmental enquiry was ever initiated against the petitioner. Furthermore, there is no order passed by the Hon’ble Governor for withholding of pensionary dues, nor has respondent No.3 been authorised by the Governor to do so. Therefore, in terms of Rule 9(1) of the Pension Rules, the withholding or forfeiture of any pensionary dues falls beyond the scope of the said Rules and is per se illegal, being in direct contravention of the statutory provisions governing pensions. He also submits that Rule 9(2)(b)(ii) of the Pension Rules creates a statutory bar on the institution of any departmental proceedings in respect of an event which took place more than four years prior to such institution. He further submits that the petitioner superannuated on 30.06.2021. Subsequently, the alleged enquiry committee submitted its report in 2022, on the basis of which the impugned order dated 7.12.2022 (Annexure P/1) was passed. Since the alleged incidents occurred in 2010 and 2011, the initiation of any enquiry is barred and legally not sustainable. He further submits that under sub-section (6) of Section 4 of the Payment of Gratuity Act, 1972, the forfeiture of gratuity is permissible only if the services of an employee have been terminated for any act, willful omission or negligence causing any damage, loss or destruction of the employer’s property. Furthermore, forfeiture is only applicable if the services were terminated for riotous or disorderly conduct, any other act of violence or an offence involving moral turpitude, provided that 6 such offence was committed by him in the course of employment. 2026:CGHC:15342 In the present case, the petitioner’s services ended via superannuation on 30.6.2021, not through a punitive termination, therefore, the provisions of Section 4(6) of the said Act are not applicable. He also submits that the books allegedly missing were subsequently recovered on 25.01.2022 and handed over by the Principal to Shri Suraj Ram Ratre, therefore, the entire basis of recovery fails. In view of the above, the impugned orders are per se illegal and liable to be quashed. 5. Per contra, learned counsel for the State submits that while the petitioner was posted as Librarian and one Dr. Jaya Thakur, was working as Incharge Principal-cum-Professor (Department of Social Science) of respondent No.4/College, a 10 Member Committee was constituted on 21.3.2022. This Committee was tasked with investigating the disappearance of library books and fixing liability. After a threadbare enquiry, the Committee’s report held the petitioner and Dr. Jaya Thakur responsible for the loss of 12,368 books, valued at Rs.13,50,576/-, as they were the respective Incharge Librarian and Incharge Principal during the relevant period. Consequently, a recovery of 50% of the total loss (Rs.6,75,288/-) was ordered against the petitioner. Though Ashok Das, Book Lifter was also involved, recovery was not proposed against him due to his status as a low paid employee. He further submits that on attaining the age of superannuation, the petitioner retired on 30/06/2021. Subsequently, based on the findings of the enquiry conducted by Respondent No.4/College, the sum of 7 Rs.6,75,288/- was recovered from the petitioner’s retiral dues. He 2026:CGHC:15342 submits that the books were purchased using public funds, the loss represents a deficit in Government revenue, making it legally recoverable. Therefore, the recovery from the petitioner’s dues is neither illegal nor ambiguous, but a necessary measure to safeguard public property. He submits that the excess payment of public money, often described as ‘tax payers money’, belongs neither to the officers who have effected the over-payment nor to the recipients. It is well settled that while certain hardships may arise, it is impossible to postulate every situation where payments are mistakenly made by an employer in excess of an employee’s entitlement. As such, any payment made in excess of such entitlement is liable to be recovered as soon as the same comes to the notice of the authorities granting the same. In support of his submissions, learned counsel for the State would place reliance on the judgment rendered in the matter of Chandi Prasad Unayal and others Vs. State of Uttarakhand, reported in (2012) 8 SCC 417, which affirms the right of the State to recover such excess payment. Hence, the petition is liable to be dismissed. 6. I have heard learned counsel for the parties and have also perused the pleadings annexed to the petition with utmost circumspection. 7. A bare perusal of the order dated 7.12.2022 would show that a total sum of Rs.13,50,576/- was directed to be recovered. This liability was apportioned equally between the petitioner (the then Incharge Librarian-cum-Professor {Department of English} )and 8 Dr. Jaya Thakur, the then Incharge Principal-cum-Professor 2026:CGHC:15342 (Department of Social Science) with each held liable to pay a sum of Rs.6,75,288/-. The aforesaid amount pertains to missing of books from the library of the Government Mahaprabhu Vallabhacharya Post Graduate College, Mahasamund (CG). This sum was directed to be recovered from the petitioner’s gratuity. A perusal of the record further shows that the petitioner retired on 30.6.2021, whereas, the recovery order was passed on 7.12.2022 i.e. subsequent to his retirement. On a previous occasion, when the retiral dues were withheld, the petitioner approached this Court by filing WPS No.6554/2022 and by an order dated 18.10.2022, the respondents were directed to decide the petitioner’s representation at the earliest as also to take a decision towards missing books preferably within a period of two months. It was pursuant to this direction that the impugned recovery order was ultimately passed. 8. Earlier, the petitioner was denied access to relevant documents leading to filing an application in this petition, seeking appropriate directions to the respondent authorities to provide the documents annexed along with the Enquiry Report. Pursuant to this Court’s order dated 23.9.2025, the respondents were directed to furnish the relevant documents sought by the petitioner. Subsequently, the respondents produced several documents in their reply, which goes to show that an Enquiry Report was submitted on 11.11.2022. Admittedly, the Committee comprised of 10 members : nine Assistant Professors from various departments and one 9 Assistant Grade-I. Furthermore, it also reveals a crucial fact that 2026:CGHC:15342 on 29.9.2010 Ashok Das, Book Lifter, was directed to hand over full charge to Suraj Ram Ratre (Librarian). The petitioner, in his capacity as Incharge Librarian, was directed to oversee this transition to ensure an efficient transfer of charges. Copy of this order was duly served upon both the petitioner and Ashok Das, the latter of whom was subsequently transferred to Government College, Basna. The Enquiry Report further reveals that on 24.9.2011, the register regarding the supply of books was not formally handed over or taken over by the concerned persons. It also transpires that 51.08% of the library books had not been handed over prior to Ashok Das (Book Lifter) being relieved of his duties. The handover process remained pending till 25.1.2022. During the intervening 11 years, the remaining books were kept in a locked room and were subsequently handed over to Suraj Ram Rate, Librarian by the Incharge Principal Jyoti Pandey, after due counting of books. The Enquiry Report clarifies that the ‘missing books’ were, in fact, received on 25.1.2022. The only allegation against the petitioner is that is that the formal handover and acceptance of 12,368 books (valued at Rs.13,50,576/-) was not conducted in a prescribed manner and remained pending for over a decade. The said report concludes that the petitioner and the then Principal Dr. Jaya Thakur did not issue any administrative directions to regularize this handover. A further examination of the Enquiry Report would reveal that the findings primarily highlight procedural defects, for which the current librarian Suraj Ram 10 Ratre was held largely responsible. 2026:CGHC:15342 9. Evidently, the books were not actually missing rather due to administrative lapses, the books which were stored in a separate room were simply not handed over to the incoming Librarian by Ashok Das (Book Lifter). Nevertheless, the petitioner, who was the Incharge of the Library at the relevant point of time, has been held liable for the alleged negligence. This administrative oversight resulted in the erroneous conclusion that 12,368 books were missing. Although the Enquiry Report fastens primary responsibility on Suraj Kumar Ratre, the recovery order was nonetheless passed against the petitioner herein and Incharge Principal Dr. Jaya Thakur. Since the books were “unaccounted for” during a transition and were never physically lost to the State, holding the petitioner financially liable for their total value is arbitrary. Since the very foundation of the impugned recovery order is rooted in an erroneous and factually incorrect assumption, when the findings of the Enquiry Report are examined in light of the Rules, 1976, it becomes apparent that the impugned recovery order is legally unsustainable, as it is based on an incorrect factual premise. 10. Rule 4 of the Pension Rules, 1976 relates to Government Servants transferred from services and posts to which these Rules do not apply, which reads as under : 4. Government Servants Transferred from Ser- vices and Posts to which Rules do not apply - (1) A Government servant who is transferred 11 permanently to a service or post to which these rules apply 2026:CGHC:15342 from a service or post to which these rules do not apply and all Government servants who are in service on the date these rules come into force, shall become subject to these rules: Provided that it shall be open to every Government servant within three months of the date of issue of the order of his permanent transfer or within 3 months from the date of publication of these rules in the State Gazette or, if he is on leave on that day, within three months of his return from leave, whichever is later, to elect to be governed by the pension rules to which he was subject immediately before the date of applicability of these rules or on the date of his transfer as the case may be. (2) The option under the proviso to sub-rule (1) shall be exercised and communicated to the authority under whom he is posted or is posted after transfer, and also to the Audit Officer concerned in the case of a Gazetted Officer whose pay is not drawn on establishment pay bill. (3) In case no option is exercised within the pre- scribed period or before the date of retirement or death, whichever is earlier, these rules shall become applicable. (4) The option, once exercised shall be final. 11. Furthermore, Rule 9 of the Rules, 1976 relates to right of Governor to withhold or withdraw Pension. The said rule reads as under : 9. Right of Governor to withhold or withdraw Pension - (1) The Governor reserves to himself the right 12 of withholding or withdrawing a pension or part thereof, 2026:CGHC:15342 whether permanently or for a specified period, and of ordering recovery from of the whole or part of any pecuniary loss caused to the Government if, in any departmental pension or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement: Provided that the State Service Commission shall be consulted before any final orders are passed: Provided further that where a part of pension is withheld or withdrawn. the amount of such pension shall not be reduced below the (Rs.60/-) (2) (a) The departmental proceeding referred to in sub- rule (1), if instituted while the Government servant was in service whether before his retirement during his re- employment, shall, after the final retirement of the Government servant, be deemed to be proceeding under this rule and shall be continued and concluded by the authority by which they were commenced. in the same manner as if the Government servant had continued in service: Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report recording its findings to the Governor (b) The departmental proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re-employment :- 13 (i) shall not be instituted save with the sanction of the 2026:CGHC:15342 Governor; (ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings. (a) in which an order of dismissal from service could be made in relation to the Government servant during his service in case it is proposed to withhold or withdraw a pension or part thereof whether permanently or for a specified period; or (b) in which an order of recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders could be made in relation to the Government servant during his service if it is proposed to order recovery from his pension of the whole or part of any pecuniary loss caused to the Government. (3) No judicial proceeding, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution. (4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are 14 continued under sub-rule (2), a provisional pension and 2026:CGHC:15342 death-cum-retirement gratuity as provided in [Rule 64], as the case may be, shall be sanctioned. Provided that where pension has already been finally sanctioned to a Government servant prior to institution of departmental proceedings, the Governor may, by order in writing, withhold, with effect from the date of institution of such departmental proceedings fifty per cent of the pension so sanctioned subject however that the pension payable after such withholding is not reduced to less than 60 /- per month in case of invalid pension and Rs.40/- per month in other cases: Provided further that where departmental proceedings have been instituted prior to the 25th October, 1978, the first proviso shall have effect as it for the words "with effect from the date of institution of such proceedings" the words with effect from a date not later than thirty days from the date of aforementioned, had been substituted : Provided also that- (a) If the departmental proceedings are not completed within a period of one year from the date of institution thereof, fifty per cent, of the pension withheld shall stand restored on the expiration of the aforesaid period of one year; (b) If the departmental proceedings are not completed within a period of two years from the date of institution, the entire amount of pension so withheld shall stand restored on the expiration of the aforesaid period of two years; and 15 (c) If in the departmental proceedings final order is 2026:CGHC:15342 passed to withhold or withdraw the pension or any recovery is ordered, the order shall be deemed to take effect from the date of the institution of departmental proceedings and the amount, of pension since withheld shall be adjusted in terms of the final order subject to the limit specified in sub-rule (5) of Rule 43]. (5) Where the Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. (6) For the purpose of this rule- (a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to be instituted- (i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and (ii) in the case of civil proceedings, on the date the plaint is presented in the Court. 12. In the present matter, no departmental proceedings could legally be initiated after the petitioner’s superannuation for an event that took place more than four years prior to such initiation. The allegations herein pertain to the period of 2010-11, placing them 16 well beyond the limitation period prescribed under Rule 9 of the 2026:CGHC:15342 Pension Rules. Furthermore, no enquiry was ever conducted to determine whether the allegedly ‘missing’ books were, in fact, issued to students or other authorized persons. No evidence was produced to establish the exact number of books originally handed over to the petitioner or the concerned Librarian making it impossible to quantify an actual loss. It is quite vivid that the entire recovery exercise was based on mere assumptions and presumptions, conclusions of which were subsequently found to be incorrect when the books were located. 13. Considering the facts and circumstances of the case, this Court is of the opinion that the respondents have unlawfully deprived a retired employee (petitioner herein) of his rightful dues and thereby, preventing him from the benefit and security of his life savings. The State’s actions, manifestly driven by mere whims fancies, have twice dragged the petitioner into unavoidable litigations. Such arbitrary conduct by the State authorities, particularly against a superannuated employee, cannot be countenanced in law. Accordingly, the impugned orders are liable to be quashed and the petitioner is entitled to the restoration of his retiral benefits. 14. In light of the foregoing reasons, the impugned order dated 7.12.2022 (Annexure P/1), 8.12.2022 (Annexure P/2) and 10.12.2022 (Annexure P/3) are hereby quashed. The Respondent/State is directed to immediately disburse the illegally withheld gratuity of Rs.6,75,288/- to the petitioner. 17 15. It is made clear that if any amount has already been recovered 2026:CGHC:15342 from the petitioner, the respondents are directed to refund the same in its entirety within a period of 45 days from the date of receipt of a copy of this order. Such refund shall be accompanied with an interest @ 6% per annum calculated from the date of deduction till the date of actual payment. 16. With the aforesaid observations/directions, the Petition is finally disposed of. Sd/- (Amitendra Kishore Prasad) Judge Shyna Ajay 18 2026:CGHC:15342 HEAD NOTE WPS No. 7986 of 2023 Under Rule 9 of the Pension Rules, departmental proceedings cannot be legally initiated against a pensioner after superannuation, for events that occurred more than four years prior to such initiation.</div>