State Of U.P. Through Principal ... vs Om Prakash Tiwari And Another
2021 Latest Caselaw 3768 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40
 

 
Case :- SPECIAL APPEAL No. - 205 of 2020
 

 
Appellant :- State Of U.P. Through Principal Secretary (Higher Education),Civil Secretariat,Lucknow And 2 Others
 
Respondent :- Om Prakash Tiwari And Another
 
Counsel for Appellant :- Pranab Kumar Ganguli
 
Counsel for Respondent :- Avneesh Tripathi
 

 
Hon'ble Manoj Misra,J.

Hon'ble Rohit Ranjan Agarwal,J.

This intra court appeal has been filed by the State and its officers against the judgment and order dated 20.09.2019 passed in Writ-A No.14516 of 2018 by which the writ petition filed by the first respondent has been allowed with a direction upon the opposite parties (the appellants herein) to refund Rs.4,28,789/- deducted from the post retiral dues of the writ petitioner (the first respondent herein) with 7% simple interest from the date the sum was due with further direction that the writ petitioner would be entitled to interest on the gratuity amount also. In addition to above, the cost of litigation assessed at Rs.1 lakh has been fastened on the Regional Higher Education Officer, Bareilly (the appellant no.2) to be paid to the writ petitioner.

The factual matrix of the case is as follows: The writ petitioner, namely, the first respondent, was appointed as a Head Clerk in the year 1970 in Govind Ballabh Pant Mahavidyalaya, Budaun, a degree college duly recognised and under grant-in-aid of the State Government. He was placed under suspension on 07.10.1984 and thereafter his services were dispensed with by a resolution of Managing Committee dated 04th May, 1985. The resolution came to be approved by the District Inspector of Schools vide order dated 01.12.1993. The dismissal order and its approval was challenged in Writ-A No.7596 of 1994 which was allowed by order dated 08.12.2014. In between, the writ petitioner had attained the age of superannuation on 30.09.2009 therefore, although the writ petition was allowed with direction that he shall be treated as in continuous service with effect from 07.10.1984 till the age of his superannuation and that the respondents would fix his last pay drawn notionally after taking into consideration the revision of pay scales etc. for the purpose of determination of post retirement benefits including fixation of pension etc. as per Rules, in lieu of arrears of salary a lump sum amount of Rs.5,00,000/- was awarded as compensation for the financial loss as also other deprivations caused to him during the period he was forcibly kept out of service. The operative portion of the order dated 08.12.2014 passed in Writ-A No.7596 of 1994 filed by the writ petitioner (the first respondent herein) is being extracted below:-

"Considering the stand of the Management that some other person had been appointed in place of the petitioner way back in the year 1983 itself, which itself is quite objectionable as in the absence of any approval of the alleged dismissal of the petitioner which itself was not effective, there was no question of engaging any other person, nevertheless, considering the said fact and also the possibility of the petitioner having engaged himself in any other employment to support his family, in my view he is not entitled to full arrears of salary, as is being claimed by him, but, a lump-sum amount of Rs.5,00,000/- would suffice as compensation for the financial loss as also other deprivations caused to him during the period he was forcibly kept out of service. He shall be treated in continuous service w.e.f. 07.10.1984 till the age of his superannuation. The respondents shall fix his last pay drawn notionally after taking into consideration the revision of pay scales etc. for the purpose of determination of post retirement benefits including fixation of pension etc. as per Rules. This exercise shall be completed by the respondents within a period of six months from the date a certified copy of this judgment is produced before the concerned authority. The amount due to the petitioner, subsequent to the aforesaid exercise, shall be released in his favour without unnecessary delay, say, within a period of three months thereafter. Consequences to follow, as per rules, accordingly."

Despite the above order on the writ petition of the first respondent, when pension and other post retiral dues were denied to the writ petitioner by placing reliance on a Government Order dated 23.01.2010 on the ground that the writ petitioner had not availed the option of pension in lieu of Contribution Provident Fund (for short CPF), the writ petitioner filed a fresh petition i.e. Writ-A No.3843 of 2016. The said writ petition was allowed by order dated 05th January, 2018. The operative portion of the judgment and order dated 05th January, 2018 is extracted below:-

"In the facts and circumstances of the present case, the working of petitioner is to be treated to be continuous from the date of removal till his age of superannuation by virtue of the direction issued by this Court. Denial of benefit of pension, in such circumstances, to the petitioner would be wholly unjust and arbitrary. Admittedly, petitioner has opted for payment of pension and his claim in that regard has been accepted by the Regional Higher Education Officer. It is obvious that such option has been exercised and accepted only after passing of the judgment by this Court on 8.12.2014, and the Director of Education therefore was not justified in denying pension to the petitioner.

For the reasons recorded above, the order passed by the Director of Education dated 8.12.2015 cannot be sustained and is hereby quashed. A direction is issued to the Director of Education concerned to reconsider the issue in light of the observations made above and pass appropriate order in respect of sanction of pension to the petitioner, within a period of two months from the date of presentation of certified copy of this order, failing which petitioner shall be entitled to payment of interest @ 8% per annum.

Writ petition is accordingly disposed of."

In pursuance of the order passed in Writ-A No.3843 of 2016, the Director of Education (Higher) by letter dated 21.02.2018 sought information from the manager of the institution with regard to details of the managerial contribution made to the CPF. In response to the letter, by communication dated 10th March, 2018, the management of the institution transferred Rs.14,331/- to the account of the Regional Higher Education Officer, Bareilly as management contribution from 1972-73 to 1984-85. The writ petitioner, vide communication dated 10th March, 2018 addressed to the Regional Higher Education Officer, Bareilly, consented to such deduction. Pursuant thereof, the Regional Higher Education Officer, Bareilly computed the pension and other post retiral dues and deducted Rs.4,28,789- from the computed amount by treating it as the amount towards managerial contribution payable upto the date of his superannuation.

Challenging such deduction, the first respondent filed Writ-A No.14516 of 2018 by claiming that such deduction of the managerial contribution could have been sustained had the petitioner received salary for the period 1985 to 2009 but since the petitioner had not received salary or back wages from the date of suspension to the date of superannuation it was not open for the respondents to make such deduction on assumption that the petitioner had received salary. It was submitted on behalf of the writ petitioner that Rs.5,00,000/- that were awarded to the writ petitioner was by way compensation in lieu of back wages and therefore any further deduction therefrom was not justified at all. The aforesaid contention on behalf of the writ petitioner found favour with the view of the learned Single Judge. Consequently, Writ-A No.14516 of 2018 was allowed by the impugned judgment and order dated 20.09.2019.

We have heard Sri P.K. Ganguli, learned Standing Counsel, for the appellant; Sri Avneesh Tripathi for the respondent no.1; and have perused the record.

Sri Ganguli sought to justify the deduction by claiming that since contribution of the management is required for pensionary benefit, the State cannot be burdened with liability to that extent and therefore deduction of Rs.4,28,789/- was justified from the amount ultimately payable to the writ petitioner (the first respondent). The second submission is that there was no justification to direct for refund of Rs.4,28,789 when the prayer was only for refund of Rs.4,14,458/- as the balance amount of Rs.14,331 was for the managerial contribution for the period up to which the writ petitioner had drawn salary and for such deduction the writ petitioner had even consented.

We do not find substance in the first submission of the learned counsel for the appellant because managerial contribution is to be paid after making deduction from the salary payable and paid to the employee. Admittedly, no salary was paid to the first respondent (the writ petitioner) for the period starting from 1985 upto the age of his superannuation i.e. 30.09.2009. The writ court, in its earlier order dated 08.12.2014 in Writ-A No.7596 of 1994, while setting aside the order of dismissal was conscious of the fact that the writ petitioner had attained the age of superannuation and therefore denied him the benefit of arrears of salary but to compensate him for the loss had provided a lump sum amount of Rs.5,00,000/- by way of compensation. The writ court had specifically directed that the writ petitioner would be entitled for the benefit of continuous service till the date of his superannuation and that there shall be a fixation of last pay drawn notionally after taking into consideration the revision of pay scales etc. for the purpose of determination of post retirement benefits including fixation of pension etc. as per Rules. The order of the writ court dated 08.12.2014 has attained finality. It is not in dispute that if arrears of salary for the period starting from 07.10.1984 upto the age of superannuation i.e. 30.09.2009 had been paid to the first respondent, he would have been entitled to much larger amount than Rs.5,00,000/- which had been awarded to the first respondent by way of compensation. In these circumstances, a further deduction from the pension and other retiral dues towards managerial contribution to pension was rightly found not justified by the learned Single Judge while allowing the petition of the writ petitioner by the order impugned. However, we find substance in the second submission of the learned counsel for the appellant that the direction should not have been for refund of the managerial contribution for the period during which the writ petitioner had received salary that is of the amount of Rs.14,331/-. We, therefore, find it appropriate to reduce the figure of the amount to be refunded to Rs.4,14,458 from Rs.4,28,789/-. The rest of the direction in respect of payment of interest etc issued by the learned single judge shall remain intact. However, fastening cost of litigation to the extent of Rs.1 lakh on Regional Higher Education Officer, Bareilly does not appear to be justified because the said officer was seeking to interpret the order in the manner which could sub-serve the interest of the State exchequer. Where an officer espouses to protect the interest of the State by taking an interpretation of an order which is not in the teeth of the direction given by the Court, if, upon subsequent interpretation, it transpires that his interpretation was not correct, he should not ordinarily be saddled with costs of the litigation. We, therefore, in addition to above, deem it appropriate to set aside the cost imposed upon the second respondent in the writ petition. Subject to above, the rest of the judgment and order of the learned single judge is affirmed.

The appeal is partly allowed to the extent indicated above.

Order Date :- 17.3.2021

AKShukla/-