M.B. Sharma, J.
1. In this writ petition the main question involved is as to whether any deduction from the family pension payable to the dependents of a deceased Government servant of any amount even if the same is due against the deceased Government servant can be made? The petitioner Smt. Sonkanwar is the widow of late Shobhag Singh. Said Shobhag Singh was confirmed Lower Division Clerk in the office of Superintendent of Police, Jaipur District, Jaipur. While he was working as such, on July 20, 1965 a report was lodged against him at the police station, Bani Park Jaipur in respect of embezzlement of Rs. 187.50 due to double drawal of medical bail. In fact late Shobhag Singh is said to be working as a Cashier/Accountant and on May 27, 1965 P.J. Munshi, the then Deputy Superintendent of Police, Police Lines, Jaipur inspected the cash and accounts and it was found that it was short by Rs. 29,493 93. This fact was brought to the notice of the Superintendent of Police on whose instance two F.I.Rs. were lodged one for Rs. 187-50 for double drawal of medical reimbursement bill and F.I.R. No. 76/65 under Section 409 I.P.C. for mis-appropriating the amount of Rs. 29,493.30. Before the trial in two cases could be concluded, Sobhag. Singh died it. S.M.S. Hospital, Jaipur on December 18, 1972. On the death of Sobhag Singh both the criminal cases against him were ordered to be consigned to record. The petitioner applied for grant of family pension under the Rajasthan Service Rules, 1951 and the then Superintendent of Police, Jaipur District, Jaipur, instead of giving a clear no dues certificate put a note in the no dues certificate that Rs. 27,074.25 are outstanding against late Sobhag Singh and they have to be adjusted from the family pension and gratuity to be sanctioned and paid to the petitioner. The Chief Pension Payment Officer (now Director of Pension Payment) issued a P.P.O. No. CPO 1274 (F P.) dated June 22, 1981. Family pension at rate of Rs. 120 per month was granted with subsequent usual increments. Out of the arrears of family pension for the period December 19, 1972 to May 31, 1981 a sum of Rs. 10,398.32 was deducted and Rs. 3,525 was adjusted from death-cum-retirement without any notice. Thus an amount of Rs. 13,923.32 was adjusted and not paid to the petitioner. It was further ordered that one third part of the family pension to be paid in future shall be continued to be deducted towards the so called dues outstanding against Sobhag Singh. The case of the petitioner is that she was not paid a single paisa in respect of pension from December 19, 1972 to May 31, 1981 and from June 1, 1981 she is getting only two third of the family pension sanctioned by P.P.O as mentioned above.
2. The case of the petitioner further is that for the balance of the so called outstanding amount against her late husband Sobhag Singh the Superintendent of Police has proceeded under the provisions of the Rajastham Public Demands Recovery Act, 1952. A requisition was issued under Section 3 of the Rajasthan Public Demands Recovery Act, 1952 (for short hereinafter to as ‘the recovery Act’) in which a sum of Rs. 14,677 70 was said to be outstanding against the name of late Sobhag Singh. The Collector, Nagaur and Tehsildar, Parbatsar City are taking proceedings to recover the amount According to the petitioner, she has never been told inspite of many approaches made to Superintendent of Police as to how the amount was calculated in the case of Sobhag Singh.
3 A show cause notice was issued to non-petitioner and reply has been filed. It is not disputed that while the criminal cases were pending trial, Sobhag Singh died and the cases were consigned to record. It is the case of the non-petitioners that audit was got conducted for period May 19, 1962 to June 2, 1964 and it was found that a sum of Rs. 29,493.30 was outstanding against Sobhag Singh. Reliance has been placed on the extract of adult report marked as Annexure-R/3. It is further the case of the non-petitioner that after fixing the liability, the Superintendent of Police sent a requisition under Section 3 of the Act to the Collector after preparing the demand memo for a sum of Rs. 26,859.53. A sum of Rs. 12,181.57 was recovered from the gratuity and pension. According to the non-petitioners, Sobhag Singh was suspended immediately after detection of the embezzlement in July, 1965. After his death, consequential order was passed under Rule 54 of the Rajasthan Service Rules, 1951 on February 11, 1982. Under the aforesaid order the pay during the suspension period except the subsistance allowance already paid to him was forfeited to the State.
4. In the reply it has been stated by the non-petitioners that though requisition was sent to the Collector under Section 3 of the Act along with memo of demand for recovery of Rs. 14,677.70, but out of the aforesaid-amount so far Rs. 9,496/-have been recovered and a sum of Rs. 5,180/- is still outstanding against Sobhag Singh. It is further the case of the non-petitioner that the petitioner has been informed about the embezzlement of a large sum by Sobhag Singh.
5. There is no dispute that Sobhag Singh, husband of the petitioner died while in service. There also cannot be any dispute that when said Sobhag Singh was workings as Cashier, Police Lines, Jaipur, two F.I.Rs. the first FIR. No. 101/65 in respect of Rs. 187.50 said to have been drawn as medical reimbursement having already drawn of the said amount earlier and another FIR No. 76/65 in Police Station. Bani Park, Jaipur was also registered against deceased Sobhagsingh for having misappropriated Rs. 29,493.30 while working, as Cashier, Police Lines, Jaipur. The petitioner Smt. Son Kanwar, widow of Sobhag Singh in the petition has only admitted the filing of FIR No. 101/65 and has not said along with the reply it can also be said that the second FIR was also lodged against deceased Sobhag Singh. As per the reply filed by the non-petitioners in respect of the two FIRs two cases were instituted against deceased Sobhag Singh but when those were pending trial and the full trial had almost been completed, Sobhag Singh died and, therefore, the trial could not be concluded and, therefore, in one case under order dated October 16, 1973 the Special Magistrate and Additional Munsif Magistrate, Jaipur City West ordered the consigning of the case to record. It can also be said that no disciplinary proceedings for the alleged misappropriation or withdrawal of medical reimbursement twice took place against deceased Sobhag Singh and lifter the death of Sohhag Singh family pension was sanctioned to the petitioner his widow vide P.P.O Annexure-3-A perusal of the PPO will show that family pension at rate of Rs. 120/- per month was sanctioned and thereafter at rate of Rs. 60/- per month till her death or remarriage, which ever is earlier. Out of arrears of pension from December 19, 1972 to May 31, 1981 a sum of Rs. 10,398 32 were deducted and rest Rs 3,525/-were adjusted from death-cum-retirement gratuity (DCRG). Thus, a total sum of Rs. 13,923.32 were adjusted and were not paid to the widow of deceased Sobhag Singh. It will further appear from the aforesaid PPO that thereafter one third pension was ordered to be deducted for realisation of the remaining amount. The petitioner widow, therefore, has come to this Court challenging the aforesaid question.
6. The first question is as to whether out of the family pension sanction to the petitioner, the widow of deceased Sobhag Singh any amount could have been deducted/adjusted towards the outstanding against Sobhag Singh? Chapter XXIII-A of the RSR, 1951 (for short herein after referred to as ‘the Rules’) applies to all Government servants on pensionable establishment whether temporary or permanent, who were in service on March 1, 1964, or who entered service on or after that date ‘Family pension’ as laid down in Rule 268-C shall be granted under the aforesaid Chapter to the family of an officer who dies on or after March 1, 1964. A perusal of the aforesaid Chapter and the Govt. of Rajasthan decisions will show that the Govt. has been liberalising the family pension to the dependents of deceased Govt. Servants and amount of family pension is payable in accordance with Rule 261-C and the pension is payable at the rates laid down under Rule 268-C(l) of the Rules. There is no provision in the Rules that if any amount is due against the deceased Government servant, then the same can be recovered from the amount of family sanctioned to his widow or other dependents. It need be said that the rate of family pension is much lower then the pension to which a Government servant would have been eligible his retirement. Rule 170 of the Rules deals with recoveries of losses from the pension and under it the Governor reserves his right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Govt. if in a departmental 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 such departmental proceeding if instituted while the officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the manner as if the officer had continued in service. It will, therefore, be clear from the underlined words that right of withholding or withdrawing pension or any part of it is only subject to the officer being found guilty of grave misconduct or negligence in a departmental or judicial proceeding. It has already been said earlier that so far as charge-sheets which were filed are concerned, they could not be concluded as a result of death of Sobhag Singh on December 18, 1972. Assuming that the whole or any part of pecuniary loss was caused to the Government while Sobhag Singh was in service and the same can be recovered even from the family pension granted to his widow, even then so far Rule 170 of the Rules is concerned, it could only be recovered if deceased Sobhag Singh would have been found guilty of grave misconduct or negligence during the period of his service in a departmental or judicial proceeding. It may be stated that even after the death of Sobhag Singh no departmental enquiry could have been initiated against him, a deceased person and similarly there is no question of holding any departmental proceeding against the petitioner, his widow, as departmental proceeding could only be initiated against Government servant concerned and not against his family member. After the death of Sobhag Singh no enquiry was at all held at to whether any amount was due against the deceased and no notice was ever given to the petitioner, his widow. A look at the audit report on the basis of which a sum of Rs. 26,859.53 is said to be due will show that a shortage of cash amount of Rs. 23,694.57 was only found. A look at page 18 of the audit report at page 28 of the paper book will show that Govt. recoveries were for Rs. 12,526.73 and private fund was Rs. 11,167.84, total Rs. 23,694.57. Thus even from the audit report it appears that the amount said to be embezzled only come to be Rs. 23,694.57 Audit report is not the final adjudication of any controversy as to whether the amount has been actually embezzled or not and it can only be established either in departmental enquiry or in judicial proceeding. Therefore, only on the basis of the audit report, without any notice to the petitioner and without any enquiry in the matter, it could not be said that the deceased Sobhag Singh had misappropriated any amount or had withdrawn the amount of medical reimbursement twice.
7. Even in the departmental proceeding as contemplated under Rule 170 of the Rules by virtue of its Clause (b) could not have been initiated against Sobhag Singh after his death save with the permission of the Governor. Clause (b) of Rule 170 provides that such departmental proceeding, if not instituted while the officer was in service, whether before his retirement or daring his re-employment, shall not be instituted save with the sanction of the Governor; shall not be in respect of any event which took place more than 4 years before such institution; and shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service. Under Clause (c) of Rule 170 of the Rules no such judicial proceeding, if not instituted while the officer 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 an event which took place more than 4 years before-such institution. In view of the aforesaid provision it becomes highly doubtful that any judicial proceeding could have been initiated even against Sobhag Singh after four years of the accrual of the cause of action. Be that as it may, there is no provision in the Rules under which any amount said to be due against Sobhag Singh could have been recovered even from Sobhag Singh if he would have survived and retired without there being adjudication of the same in judicial proceeding and without a finding of fact in any departmental proceeding against grave misconduct of Sobhag Singh. In our opinion, under the Rules no recovery of any amount said to be due against Sobhag Singh as a pecuniary loss said to have been caused to the Government could be made from the pension said to have been sanctioned to the petitioner widow. We may state that as stated earlier during the life time of Sobhag Singh except the audit report about which we have said that about Rs. 23,000/- and odd were found due, there was no adjudication as aforesaid against Sobhag Singh. No recovery can be made from his widow either from family pension or otherwise without following principles of natural justice. We are of the opinion that after the death of Sobhag Singh the only remedy available to the Govt. if any amount was due to Sobhag Singh as a result of pecuniary loss said to have been caused to the Govt. the same could have been recovered after filing a suit against his widow and after a decree would have been passed against her as legal representative of deceased Sobhag Singh. Thus we are of the opinion that the respondents or the Chief Pension Officer (now Director, Pension) could not have mentioned in the PPO (Annx. 3) that the amount of Rs. 13,923.32 should be deducted from the arrears of pension and death-cum-retirement gratuity. Thus, the deduction of the aforesaid amount is without any authority of law.
8. The next question arises as to whether the amount could be recovered under the provisions of the Public Demands Recovery Act, 1952 (for short here in after referred to as ‘the Recovery Act‘). It appears that they a requisition Annexure-4 was sent by the Superintendent of Police, Jaipur District to the Collector, Nagaur for the recovery of Rs. 14,677,70 said to be still due against Sobhag Singh. On the said requisition the Collector issued a notice to the defaulter, the petitioner under Section 6 of the Recovery Act on August 17, 1982 (Annexure-5) and proceeding are pendings before the Collector for recovery of the aforesaid amount. It may be stated that it has been mentioned in the reply to the writ petition page 2 para 2 that the requisition was sent to the Collector by the Superintendent of Police under Section 3 of the Recovery Act on July 13, 1981 along with memo of demand for recovery of Rs. 14,677.70. It was further mentioned that out of this amount so far Rs. 9,496/- have been recovered as per office report and a sum of Rs. 5,180/- had remained due. Because one third amount out of the pension is being deducted towards outstanding against deceased Sobhag Singh, it can also be said that by now the amount of Rs. 5,180/- must have been recovered further. ‘Public Demand’ has been described in Section 2(5) and means any arrear of money mentioned or referred to in the Schedule to the Recovery Act and includes any interest which may by law be chargeable thereon upto the date of the signing of a certificate in respect thereof under Section 4. Under Section 3(1) of the Recovery Act when any public demand is due, the officer or authority charged with its realisation may sent to the Collector having juris-diction in the place where the defaulter resides or owns property a written requisition in the prescribed form and every such requisition shall be signed and verified in the prescribed manner. A look at the Schedule to the Recovery Act will show that under Clause (8) any money payable to the State Govern-ment or to a department or an officer of the State Government in consequence of the loss, misappropriation, defalcation or breach of trust by a public servant is public demand The question is as to whether merely on the basis of audit report can it be said that the amount is payable to the State Govern-ment in consequence to the loss, misappropriation, defalcation or breach of trust by Sobhag Singh. The Recovery Act provides complete machinery for realisation of any amount which falls within the definition of ‘public demand’ and in this case if any money is payable to the State Government or the Police Department in consequence of loss, or misappropriation or defalcation or breach of trust by Sobhag Singh, then it will fall in the definition of ‘public demand’ as contained in Section 2(5) read with Clause (8) of the Schedule to the Recovery Act. The Rajasthan Public Demand Recovery Rules, 1953 (for short here in after referred to as ‘the Recovery Rules’) have been framed by virtue of powers vested in the Government under Section 29 of the Recovery Act. Rules 3 provides that every requisition made under Section 3 of the Recovery Act shall be signed and verified at the fact by the person making it. Sub-Rule (2) further says that the verification shall state that the person signing the requisition 1 as been satisfied by inquiry that the amount stated in the requisition is actually due and its Sub-rule (3) provides that the verification shall be signed by the person making it, and shall state the date on which it is signed. On receipt of the requisition as aforesaid and only after it is satisfied that the demand is recoverable under the Recovery Act, the Collector may signe a certificate to that effect in prescribed form specifying therein (1) the amount of the demand, (2) the account on which it is due,(3) the name of defaulter, and (4) such other particulars which are necessary for his identification and cause the certificate to be filed in his office. The certificate must conform with the requirement of Section 4 of the Recovery Act and the form otherwise the certificate cannot be said to be in accordance with the provisions of the Recovery Act. The law is settled that if a thing is not done in the manner provided by law it is invalid and ineffective and the existence of a valid certificate is the very foundation of the jurisdiction of the Collector. Satisfaction of the Collector that the demand is recoverable under the Recovery Act is a condition precedent to the exercise of his power given to him under the Recovery Act. A look at the requisition Annexure-4 issued under Section 3 of the Recovery Act will show that it is not mentioned in it as to for what period the said embezzlement relates. The requisition has not been verified. The endorsement is as follows:
I request you to recover the above mentioned sum of Rs. 14.677.70 and interest to agreement at rate of 9% which I am satisfied after enquiry, is due from the said party in respect of contracted obligation”.
Verified by me in the———–days.
Superintendent of Police,
Neither the requisition bears any date, nor it is verified as required under the Rules. That apart, all that has been mentioned is that the officer signing the requisition was satisfied after enquiry that the amount due in respect of contractual obligation. Admittedly there was no contractule obligation under which the amount is said to be due as a result of misappropriation by deceased Sobhag Singh. The requisition had not been vertified. A look at the certificate Annexure-5 will show that the satisfaction of the Collector to the effect that he is satisfied that the demand is recoverable under the Recovery Act is not recorded therein. As already said earlier, the satisfaction of the Collector as aforesaid is a condition precedent to the issue of the certificate under sec 4 of the Recovery Act The further requirement of Section 4 is that in the certificate the Collector must specify the amount of demand, the account on which it is due. Even in form No. 2 (Certificate of Public Demand) under Section 4 of the Act, which is available at page 26 of the paper book it is not mentioned that the amount was due as part of the amount said to have been mis-appropriated by Sobhag Singh. Even in Annexure R/5 requisition for certificate to the Collector, which is available at page 64, it is not mentioned that the amount of Rs. 26,859.57 was due as said to have been misappropriated by Sobhag Singh, Cashier, Police Lines, Jaipur. Even the period for which the said amount is said to have been embezzled and is concerned, has not been mentioned. Thus, the certificate is not as per Section 4 in the prescribed form No. 2 of the Recovery Rules and the very foundation is lacking. We may state that the Recovery Act, as already stated earlier provides a complete machinery for recovery of the public demand but the certificate must be in accord-ance with Section 4 of the Recovery Act, which the certificate is not in the instant case. A defaulter on whom service of proper notice under Section 4 of the Recovery Act is made, can file and has a right to file objections under, Section 8 of the Recovery Act and can file petition denying the liability within 30 days from the service of the notice under Section 6 of the Recovery Act. The Collector has to dispose of the objections and even if a final order is made, the defaulter has a right to file suit under Section 20 of the Recovery Act to have the certificate cancelled or modified or any other consequential relief, to which he may be entitled. A limitation has been prescribed for filing aforesaid suit. Even after proceeding under Recovery Act are initiated for recovery as public demand, the defaulter has a right to file an objection denying liability and thereafter if necessary, a suit. We have already said earlier that there was no proper certificate and the very condition of a valid certificate was lacking in this case and, therefore, no recovery could have been made under the provisions of the Recovery Act on such a certificate. Any how, if any certificate in accordance with the Recovery Act and the Rules is issued or would have been issued, the matter will be considered and would have been different.
9. We may state that in the reply filed by the non-petitioners, as already stated earlier, a case has been set up that after the death of Sobhag Singh consequential order was passed under Rule 54 of the Rajasthan Service Rules, 1951 on February 11, 1982 by which the pay during the suspension period except the subsistence allowance already paid to him was forfeited to the State. A bare reading of Rule 54 of the Rajasthan Service Rules, 1951 will show that it is only applicable on a Government servant who has already been suspended is re-instated or would have been re-instated, but for his retirement or superannuation while under suspension. We are of opinion that Rule 54 of the Rajasthan Service Rules, 1951 was not attracted to the present case.
10. Consequently, we hereby allow the writ petition, quash the certificate under Section 4 of the Rajasthan Public Demands Recovery Act, 1952 and further quash the recovery of any amount from the family pension payable to the petitioner, the widow of deceased Sobhag Singh. Any amount recovered from the family pension shall be refunded to her immediately, but in no case later than four months. The petitioner shall get Rs. 500/- as costs of the petition from the non-petitioner.