V.D. Gyani, J.
1. The Supreme Court's observation and hope expressed in Deokinandan's case 1984-II L.L.J. 318 that in future the employees who serve the Government would not be exposed in the fall of their life to such a costly and unending litigation to claim what is justly due to them on the date on which the bond of service is snapped, stands wholly belied and contradicted by the respondents in this petition. As back as in 1983 in D.S. Nakara v. Union of India 1983-I L.L.J. 104 posing a question what is pension, and what are the goals of pension, and what public interest or purpose if any, it seeks to serve; the highest Court proceeded to answer the same inter alia that pension is not only a compensation for service rendered in the past but it has broader significance in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and therefore, one is required to fall back on savings. Article 41 obligates the State within the limits of its economic capacity and development to make effective provisions amongst others for assistance in case of old age, sickness and disablement. Pension provisions are to some extent the legislative response to the Constitutional expectation.
2. The petitioner retired from service as Sub-Engineer on 3rd November, 1980. His pension was fixed at Rs. 168/- per month. It is not disputed that his pension was fixed as Rs. 168/- per month vide letter dated 27th June, 1981 issued by the Accountant General. M.P. It is also not disputed that this amount of pension as well as gratuity has not been paid to the petitioner as the A.G.M.P. Gwalior and the Treasury Officer, Indore have been informed to withhold the payment of pension and gratuity till settlement of government dues. The respondents seek to justify withholding of pension and gratuity to the petitioner on the ground that, government recovery was due against him and he was advised to settle the same vide letter No. 7683 dated 20th August, 1981. These recoveries pertained to some alleged shortages of tools and plants and store materials during the petitioner's incumbency at Itarsi and Hoshangabad where the petitioner was posted. The amount of recovery as shown by the respondent is Rs. 8,632-50. Vide Annexure R-4, 5 and 6 although initially the total amounts shown to be recoverable was Rs. 80,861-65 but, on further inquiry it was found that only Rs. 8,632-50 p. was due from the petitioner. There are exchange of letters between the Executive Engineers posted at Jhabua and Alirajpur proposing the deduction of this amount from the petitioner's gratuity and pension. And it was for this reason, that the A.G.M.P., has withheld the same and no payment orders as such have been issued so far. The petitioner has sworn an affidavit that he was transferred from Itarsi as back as in 1976 anS the charge of Itarsi Sub-Division was handed over by him to one Shri D.C. Jha, his successor in office on 2nd August, 1976. No material was found to be short. The note handing-over charge is filed as Annexure P/l which is further supported by an affidavit. The petitioner was posted in Harda Sub-Division and was transferred therefrom on 23rd June 1980 handing over charge to Shri O.P. Choudhary Sub-Engineer who was appointed as in-charge of the Division. This handing over note of charge is filed as Annexure P/2 by the petitioner and there was no shortage as such either found or reported. The respondents have filed certain documents, after the filing of rejoinder and affidavit, by the petitioner on 27th March, 1985, which itself had become necessary in the light of the return filed by the respondents. The respondent have come out with these documents only after the petitioner had filed his rejoinder supported by an affidavit and the notes of handing over charge. In fact had there been any such shortage, as has been contended by the respondents, the documents filed at a belated stage, should in fact have been filed along with the return itself. The respondents do not dispute that he had handedover charge to Shri D.C. Jha and Shri O.P. Choudhary, but what is stated is that the successors both Jha and Choudhary were not shown the book-balance and in absence of the book balance, it was not possible for the successors to work out and intimate the shortages immediately. This affidavit is not sworn by those who had taken over-charge from the petitioner. It is not either Shri Jha or Shri Choudhary who came out with an affidavit on this point, nor any reason is assigned by the deponent as to why either Shri Jha or Shri Choudhary should have signed the note of handing over charge in absence of the book balance as is now being sought to be suggested. The notes P-l and P-2 do not contain any such endorsement by the Officer's taking over charge from the petitioner that there was some shortage or some further verification was required in absence of book balance. Thus, the contention, advanced by the respondents for withholding the petitioner's pension and gratuity, is found to be without any substance and as such cannot be accepted.
3. Assuming that there is a recovery of an amount of Rs. 8,632-50 as contended by the respondents, the only justification sought to be advanced for withholding pension, gratuity and provident fund, Rule 65 of the M.P. Civil Services Pension Rules, 1976 which according to the respondents empowers them to withhold such payments unless the retiring government servant clears all government dues as are ascertainable. Rule 65 reads as follows:
Recovery and adjustment of Government dues. - (1) It shall be the duty of every retiring government servant to clear all Government dues before the date of his retirement.
(2) Where a retiring Government servant does not clear the Government dues and such dues are ascertainable-
(a) an equivalent cash deposit may be taken from him; or
(b) out of the gratuity payable to him, his nominee or legal heir, an amount equal to that recoverable on account of ascertainable Government dues shall be deducted.
Explanation - The expression 'ascertainable Government dues' includes balance of house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, over-payment of pay and allowances and arrears of income-tax deductible at source under the I.T. Act, 1961 (No. 43 of 1961),
Apparently no action as such was taken before the petitioner retired from service. The recoveries pertained to the petitioner's posting at Harda and Itarsi in the year 1976 and 1980. The petitioner retired from service as Sub-Engineer w.e.f. 31st October, 1980. Going through all the Annexures filed by the respondents, it is clear that they were all issued after the date of retirement. The first list of Annexures contains 7 documents R-1 to R-7 and the earliest date in these documents is 27th June, 1981 which is a letter addressed from the Accountant General, Gwalior to Executive Engineer, Jhabua. This letter has absolutely no reference to any recovery to be made from the petitioner. Annexure R/2 is dated 27th July, 1981 a letter addressed by the Executive Engineer P.W.D. Division No. 2 Hoshangabad to Executive Engineer P.W.D. Division No. 2 Jhabua. It is significant to note that even a copy of this letter has not been endorsed to the petitioner. Annexure Rule 3 is a letter addressed to the petitioner by the Executive Engineer, P.W.D. Division No. 2, Jhabua but significantly enough it does not bear any number or date. However, in the list of Annexures it is shown to be dated 20th August, 1981, number and date is left blank. It is for the first time that the petitioner was called upon to submit an explanation even while doing so, the respondents do not come with a case that while handing over charge to his successors at Harda and Itarsi, that the shortage at such could not be verified for want of book balance. Had it been the case naturally the Engineer concerned, would have mentioned it in his letter. In any case, it is legitimately expected of him to make such a mention, either in the letter Annexure R-3 or in the enclosures. The. irresistible conclusion in such circumstances is that, the justification of book balance, which has been advanced after filing the return as a reply to the petitioner's rejoinder is clearly an afterthought. Undoubtedly the recovery proceedings were initiated almost 10 months after the petitioner's retirement and 4 months after the letter Annexure R-l issued by the respondent No. 3 clearing the petitioner's pension papers and directing payment thereof. Even Sub-rule (2) of Rule 65 in such circumstances is not attracted. What this rule enjoins is in case a retiring Government servant does not clear the Government dues, and such dues are ascertainable an equivalent cash deposit may be taken from him under Clause (a) of Sub-rule (2) of Rule 65. It does not apply to a retired Government servant. The word 'retiring Government servant' is significant in its connotation. Rule 65 does not use the term retired Government servant. The action therefore, contemplated by Section 65 is in respect of a Government servant who is retiring, or is on the verge of retirement but has not actually retired. Similarly, same is the case so far as duty of a retiring Government servant is concerned, it is not attributable to a retired Government servant. In the instant case it cannot be said that the petitioner failed in his duty. Infact the A.G.M.P. having cleared his pension and gratuity claim, only after this clearance that the Authorities came out with all their obstructionist tools: had it really been so that the petitioner had not cleared the government dues, the Authorities should have called upon the petitioner to make payments even while he was in service but nothing of this sort was done. The other question is about the ascertainability of such dues, the explanation includes balance of house-building or conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, over-payment of pay and allowance and arrears of Income-tax. Even on this count the contention which has been advanced by the respondents is absolutely baseless assuming that there was some shortage while handing-over charge at Harda and Itarsi. Such a due if there be any, by no stretch of law or logic falls within the purview of ascertainable government dues. Rule 65 has no application to such a case.
4. The authorities would do well to bear in mind that pension is neither the bounty nor a matter of grace depending upon the sweet will of the employer nor an ex gratia payment. It is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch, as observed by the Supreme Court in Nakara 's case (supra). The Authorities concerned have spared no stone unturned to deprive the petitioner of his legitimate claim, of pension and gratuity despite being cleared by the Accountant General. There appears absolutely no justification whatsoever for invoking Rule 65. Even in the matter of gratuity the Supreme Court has treated the same as a retiral benefit on par with pension see Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd. 1984-II L.L.J. 223. The State will do well to impress upon such officers, that in matters such as the present one it hardly commends any Authority to be obstructionist in the process of social justice and welfare.
5. The Supreme Court' s pronouncements on one hand and the conduct of the Engineers either in Hoshangabad or Jhabua, Indore or Bhopal, on the other hand what is the hope for the petitioner who, has to incessantly struggle and litigate, against authorities intentionally denying just claims, seeking alibies behind some rule or other? The cause of social justice as a result, suffers at the hands of such Authorities. Apart from the Supreme Court's judgments referred to above even if the Government dues are treated as a decree the petitioner's provident fund, gratuity payable to a pensioner is not attachable under Section 60 Civil P.C.
6. The learned Government Advocate submitted, that the amount which is due from the petitioner should be secured in some way. Firstly the State may take legal steps for recovering the amount if it is so desired but it cannot be adjusted against the pension, gratuity and provident fund of the petitioner. On strict proof of the amount due, the State can proceed against the petitioner if so advised. But it is made clear, that this observation should not be construed as holding the petitioner liable for any amount. It would be a matter of independent proof. The petitioner's pension and gratuity amount shall be paid within one month from the date of this order and his provident fund and other retiral benefits be paid to him within one month from today. 'Pension and gratuity are no longer any bounty to be distributed by the Government' to its employees on their retirement but have become under the decisions of this Court valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment with interest at the current market rate till actual payment, said in State of Keralav. Padmanabhan Nair 1985-I L.L.J. 530. In this case, as can be seen from the foregoing facts the Engineers concerned have acted in a culpable manner by invoking Rule 65 for defeating and delaying the petitioner's claim. The petitioner is entitled to interest at market rate on the amounts to be paid.
7. For the foregoing reasons the petition succeeds and is allowed with costs. Counsel's fee Rs. 250/- is certified. The security deposit may be refunded to the petitioner after verification.