Narendra Kumar Jain vs State Of U.P. Thru' Secy. & Others
2017 Latest Caselaw 2851 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 37
 

 
Case :- WRIT - A No. - 23365 of 2008
 

 
Petitioner :- Narendra Kumar Jain
 
Respondent :- State Of U.P. Thru' Secy. & Others
 
Counsel for Petitioner :- Prakash Padia,Chandan Kumar,Dr. R.G. Padia
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard Shri Prakash Padia, learned counsel for the petitioner and learned Standing counsel for all the respondents.

This writ petition has been filed for quashing the order dated 23rd November, 2005 (Annexure-24 to the writ petition), as well as the order dated 10th May, 2006, passed by the respondent no. 2 making recommendations for releasing the post retiral benefits of the petitioner after deducting an amount of Rs. 2,01,050/- only. Th prayer also is to release the said amount as well as all other retiral benefits together with any unreleased part of the pension along with interest.

A counter affidavit has been filed, to which a rejoinder affidavit and supplementary counter affidavit has been filed by the respondents.

The writ petition was entertained and the following interim order was passed on 09th of May, 2008:-

"Learned Standing counsel appearing for respondent Nos. 1, 2 and 3 prays for and is granted four weeks' time to file counter affidavit.

The petitioner's case in the writ petition is that the petitioner retired on 31.5.2000 from the post of Junior Engineer, Minor Irrigation. He submits that pension was paid upto 2006. Thereafter, an order dated 17.8.2006 has been passed, by which it has been directed that recovery be made against the petitioner.

Learned counsel for the petitioner submits that the petitioner's post retiral benefits have not yet been finalized.

In the facts of the present case, we observe that after deducting the amount which has been directed to be recovered from the petitioner, the balance amount, if any, be paid to the petitioner towards his retirement benefit and the provisional pension be paid to the petitioner till decision with regard to continuing the pension which was already being paid is taken by the respondents.

List this matter in the 2nd week of July, 2008."

The petitioner's contention is that the petitioner did not face any disciplinary proceedings or any inquiry proceedings and in the absence of any action, having been taken against the petitioner, the directions issued to deduct the amount from the petitioner post retiral benefits is unwarranted and in violation of the rules.

It has further been submitted that so far as payment of retiral benefits are concerned, the same has been withheld on the presumption that the petitioner had allegedly not given charge of the store and the items as enumerated therein at Mainpuri while the petitioner was working there as a Junior Engineer.

It is urged, that had there been any such default, it would have been more appropriate for the respondents to have proceeded to initiate proceedings in order to establish the same and on a query made by the respondents, the petitioner had given a reply that complete charge had been handed over which is evident from the certificates issued in this regard, copies whereof have been filed on record as Annexure 4, 5 and 6 to the writ petition.

Learned counsel submits that no proceeding was initiated in spite of a clear reply given by the petitioner and even otherwise in the absence of any proceedings having been initiated in terms of Regulation 351-A of the Civil Services Regulation, no such proceedings could have been initiated even after the retirement of the petitioner without proper sanction. The respondents have proceeded to deduct the amount from the GPF of the petitioner for which there is no justification.

It is further contended by Shri Prakash Padia that the action which has been taken and the allegations which have been made in the counter affidavit of putting the petitioner to notice, are incorrect, inasmuch as appropriate reply had been given by the petitioner and 

It is urged that the entire proceedings of withholding the retiral benefits and proceeding to recover the said amount being unauthorized and untenable in law, there is a violation of Rule-7 of the U.P. Pension Cases(Delay in Payment) Rules, 1995 and not in accordance with the rules applicable to payment of pension of retired government servants.

Learned counsel has relied on the decision in the case of State of Uttar Pradesh Vs. Dhirendra Pal Singh 2016 (4) U.P.L.B.E.C. 2781, where the legality of withholding of any such amount by the Apex Court was not appreciated, and it was observed that in the absence of any departmental enquiry and without recourse having been taken to Regulation 351-A of the Civil Services Regulation, no recovery can be made.

Learned counsel for the petitioner has further relied on the Division Bench judgment of this Court in the case of Dr. Chandra Kant Sharma Vs. Vice Chancellor Dr. B.R. Ambedkar University Agra, (2017) 152 FLR, 763 to further buttress to said submission while placing reliance on paragraph 13 onwards.

Learned Standing counsel has invited the attention of the Court to paragraphs of the counter affidavit filed on behalf of the State also the supplementary counter affidavit to contend that even if the petitioner had been granted the second promotional pay scale, yet the petitioner had been continuously informed about the alleged loss of the department and, consequently, the extension of the benefit of second promotional pay scale would not absolve the petitioner of his liability to make good the loss suffered by the department. It has further been submitted that the petitioner had not been promoted and in this circumstance, the award of any promotional pay scale or any selection grade will not enure to the benefits of the petitioner for claiming any such immunity from taking action particulary deducting the amount from the funds available to the petitioner.

Learned Standing counsel has relied on the judgment of the Apex Court in the case U.P. State Sugar Corporation Limited and Ors. Vs. Kamal Swaroop Tandon, 2008 (2) SCC 41 to urge that since the relationship of employer and employee continue even after retirement, therefore, the department is entitled  to recover the amount and make good the losses suffered by the department.

We have gone through the pleadings, as well as, the annexures filed in support of the petition and the counter affidavit and also the judgments that have been relied upon by the learned counsel for the parties.

The main thrust of the argument on behalf of State is that the petitioner having not been able to establish that the losses were not attributable to him, the deductions could have been made and reliance has been placed on demi official letter dated 24 September 1969, copy whereof, is annexed as Annexure-12 to contend that such a deduction is permissible keeping in view the provisions of the financial handbook.

The crux of the dispute is that if the petitioner is sought to be indicted on account of the alleged losses suffered by the department, then whether the department could have proceeded to recover the amount from the petitioner's post retiral benefits without holding any inquiry or without taking recourse to the provisions of 351-A of the Civil Services Regulations.

We have considered the arguments and submissions raised and the admitted position is that the petitioner had given a reply whereafter, the department kept on sending letters to the petitioner seeking clarification about the items of which charge had not been allegedly handed over by the petitioner. The petitioner has denied and refuted all such allegations.

The petitioner gave his reply but the fact remains that the department did not choose to initiate any disciplinary proceedings in terms of the disciplinary rules or even after his retirement in terms of Regulation 351-A of the Civil Services Regulations. Further, it is evident on record that the petitioner on the other hand, had been given the benefit of the second promotional pay scale. These facts, therefore, clearly indicate that the respondents did not intent to initiate any disciplinary proceedings about the alleged losses as indicated in the counter affidavit.

The contention of the State relying the judgment in the case of U.P. State Sugar Corporation Ltd. (supra), therefore, does not come to the aid of the respondents, even if it is presumed that the employer-employee relationship for the limited purpose of payment of post retiral benefits did continue. The procedure prescribed in law having not been followed, there is a clear in-action on the part of the respondents in proceeding to take action against the petitioner if they were convinced that the petitioner had not made good the losses as suffered by the department. This having not been done, we are not inclined to accept the stand taken by the respondents.

Therefore, the writ petition, deserves to be allowed. The writ petition is, accordingly, allowed. The impugned orders dated 23.11.2005 and 10.05.2006 are hereby quashed. The respondents are directed to release the entire amount of post retiral benefits to which the petitioner is entitled including pensionary benefits, as well as, amount which has been allegedly deducted from the G.P.F.  of the petitioner.

The unpaid amount to which the petitioner is entitled will also carry interest at the rate of 6% per annum. This may be done within three months from today.

Order Date :- 1.8.2017

A.P. Pandey/S.Chaurasia