Ram Sewak Gupta vs State Of U.P. Thru ...
2014 Latest Caselaw 9355 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R
 
Court No. - 10
 
Case :- SERVICE SINGLE No. - 4735 of 2013
 

 
Petitioner :- Ram Sewak Gupta
 
Respondent :- State of U.P. Thru Prin.Secy.Deptt.of Food & Civil & Others
 
Counsel for Petitioner :- D.S. Yadav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Heard learned counsel for the petitioner and learned Standing Counsel appearing for the respondents.

The petitioner, who has retired on 30.06.2012 from the post of Marketing Inspector, has filed this petition with the prayer that the order dated 24.07.2013 passed by the Regional Food Controller, Faizabad Region, Faizabad whereby part of the gratuity amount of Rs.2,62,271/- has been withheld for recovering the same on account of the alleged loss caused to the State Exchequer by the petitioner, be quashed. The petitioner has also prayed that the pension payment order dated 04.01.2013 be also quashed to the extent it withholds the amount of leave encashement. Further prayer has been made for commanding the opposite party no.4 to accord the benefit of IIIrd Assured Career Progression to the petitioner with effect from 01.12.2008 in terms of the prevalent Government Order and further that the petitioner be permitted to withdraw the GPF amount.

So far as the prayer relating to withholding of the leave encashement amount is concerned, learned counsel for the petitioner states that the said amount has been released. Accordingly, the prayer made in this petition in respect of the same has been rendered infructuous. As regards the prayer relating to grant of the benefit of IIIrd Assured Career Progression to the petitioner, it has been informed that the said benefit has also been given to him which renders the prayer made in this regard infructuous. The petitioner, has, since been permitted to withdraw the amount of GPF, hence in this view, the prayer made in this regard has also become infructuous.

The sole issue which now survives for consideration in this case is as to whether the part of the amount of gratuity i.e. the sum of Rs.2,62,271/- has legally been withheld by the Regional Food Controller, Faizabad Division, Faizabad by passing the impugned order.

It has been submitted by the learned counsel for the petitioner that at the time of retirement, the petitioner was not facing any departmental inquiry, neither any departmental proceedings were initiated after his retirement in terms of the provision contained in Regulation 351-A of the Civil Service Regulations, hence there was no occasion for the respondents to have withheld the part of the amount of gratuity.

Per contra, learned counsel appearing for the State has vehemently argued that on the basis of special audit report, it was determined that the petitioner has caused loss of Rs.2,62,271/-, hence the loss caused to the State Exchequer has been sought to be recovered by withholding the amount equal to the loss, from the gratuity of the petitioner by the Regional Food Controller, Faizabad Division, Faizabad by means of order dated 24.07.2013.

I have considered the arguments advanced by learned counsels appearing for the parties.

Admittedly, no departmental proceedings were instituted, neither the same were pending against the petitioner on the date of retirement. It is also not denied that no departmental proceedings, after seeking approval of the competent authority under Regulation 351-A of the Civil Service Regulations, have been initiated against the petitioner.

In the counter affidavit, it has been stated by the respondents that on the basis of liability of a sum of Rs.2,62,271/-, which has been determined on the basis of audit report, the amount has been ordered to be recovered from the gratuity amount of the petitioner. No other reason has been indicated by the respondents for withholding the amount of gratuity for recovery of the alleged loss caused to the State Exchequer.

The U.P. Recruitment Benefit Rules 1961 provides that recovery from the gratuity of retired employee can be made only if the conditions of Regulation 351-A of the Civil Service Regulation are fulfilled. As observed above, in the instant case, there is no material which in any manner suggests that any departmental proceedings were initiated against the petitioner by taking recourse to the provisions of Regulation 351-A of the Civil Service Regulations.

Learned Standing Counsel appearing for the State has, however, sought to defend the impugned order of recovery from the gratuity amount on the basis of decision rendered by a Division Bench of this Court in the case of State of U.P. and others vs Jai Prakash, decided on 17.12.2013 in Special Appeal Defective No.1278 of 2013. The Division Bench in the aforesaid case has held that Government has the power to withhold the gratuity, however, the gratuity can be withheld only until conclusion of departmental or judicial proceedings or any inquiry by administrative tribunal.

Referring to the provision contained in Regulation 351-AA, this Court in the said case of State of U.P and others vs Jai Prakash (supra) has held that death-cum-retirement gratuity may be withheld until the conclusion of departmental or judicial proceedings and the issue of final orders thereon.

Thus, condition precedent for withholding or making recovery from the gratuity is pendency of departmental or judicial proceedings or any inquiry by the administrative tribunal and in absence of these inquiries or proceedings pending on the date of retirement, gratuity of the retiring employee cannot be withheld.

As observed above, admittedly, in the instant case, no departmental or judicial proceeding or any such inquiry was pending, hence there cannot be any justification for withholding the gratuity of the petitioner.

In fact, the impugned order does not withhold part of amount of gratuity; rather it seeks to recover the same citing the cause that the petitioner has been responsible for causing loss to the State Exchequer to the extent of the amount mentioned in the impugned order.

The question, thus, is as to whether without holding any departmental inquiry and without determining the responsibility of the petitioner for the alleged loss, solely on the basis of audit report, can any recovery from the petitioner be made.

It is well established that audit report cannot be used as substantive evidence of the genuineness or bonafide nature of the transactions referred to in the accounts. As has been held by this Court in the case of Dilip Singh Rana vs State of U.P. reported in 1993 (7) SLR 706, audit is only official examination of the accounts in order to make sure that the accounts have been properly maintained according to prescribed mode and further that audit report is a statement of facts pertaining to the maintenance of accounts coupled with the opinion of the auditor and thus it can only give rise to reasonable suspicion of commission of a wrong. Merely on the basis of said audit report without the charge of causing loss being established in a full-fledged departmental inquiry, no recovery of alleged loss caused to the State Exchequer can be made.

In similar circumstances, recovery sought to be made from the gratuity of a retired government employee on the basis of some audit report was not approved by a Division Bench of this Court in the case of Radhey Shyam Dixit vs State of U.P. and others, reported in 2006 (110) FLR 101.

For the reasons disclosed above in the instant case as well, the recovery of the part of the amount of gratuity of the petitioner, which has been sought to be made by passing the impugned order dated 24.07.2013, cannot be permitted to be sustained.

In the result, the writ petition is allowed and the impugned order dated 24.07.2013 passed by the Regional Food Controller, Faizabad Region, Faizabad as contained in annexure no.1 to the writ petition is hereby quashed. It is directed that payment of entire gratuity amount shall be made to the petitioner within six weeks from the date of production of certified copy of this order.

However, there will be no order as to costs.

Order Date :- 1.12.2014

Renu/-