Dinesh Kumar Singh vs State Of U.P. Thru Its Prin. Secy. ...
2022 Latest Caselaw 1177 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 4
 

 
Case :- WRIT - A No. - 2084 of 2022
 

 
Petitioner :- Dinesh Kumar Singh
 
Respondent :- State Of U.P. Thru Its Prin. Secy. Deptt. Of Food And Civil Supplies Lko. And 2 Others
 
Counsel for Petitioner :- Vivek Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Samanvya Dhar Dwivedi
 

 
Hon'ble Rajan Roy,J.

Heard Shri Vivek Kumar Srivastava, learned Additional Chief Standing Counsel for State and Shri Samanvay Dhar Dwivedi, learned counsel for opposite party no. 2.

Considering the fact that the legal issue involved in this case has already been settled by a judgment of this Court rendered recently on 25.03.2022 and even prior to it, as referred therein, and also as there is no factual dispute involved, the facts already having been mentioned in the impugned order, the Court does not find any need to call for any counter affidavit in the matter.

By means of this writ petition the petitioner has challenged an order dated 09.08.2017 passed by the Managing Director of U.P. State Food and Essential Commodities Corporation ordering recovery of 25% of gratuity to make good the deficiency in recovery of CMR (Custom Mill Rice). The order has been passed after the petitioner's retirement on 31.01.2017.

The contention of learned counsel for the petitioner is that there is no provision under which the Disciplinary Proceedings, which had been initiated while the petitioner was in service, could have been continued after his retirement, therefore, the impugned order is bad in law. It is also his submission that gratuity is payable under the Payment of Gratuity Act, 1972 under which certain eventualities are mentioned, on satisfaction of which, recovery can be made from gratuity but the eventuality which is the basis for the impugned order is not one of the eventualities mentioned in Section 4(6) of the Payment of Gratuity Act, 1972, therefore, for this reason the impugned order is also bad.

The issue involved in this writ petition has already considered and decided by this Court vide judgment dated 25.03.2022 rendered in Writ - A No. 1631 of 2022 which reads as under:-

"Considering the nature of the controversy and the fact that legal issues involved herein have been settled by this Court in various decisions which shall be referred hereinafter and as there is no factual dispute involved nor is the Court going to enter into any factual disputes, there is no need to call for a counter affidavit.

Heard learned counsel for the petitioner and learned counsel for opposite party no.2.

By means of this petition, the petitioner has challenged the order of punishment dated 15.06.2017 by which after the petitioner's retirement on 31.01.2017, disciplinary proceedings have been concluded imposing punishment of deduction of 15% of the amount of gratuity payable to him. The salary for the period of suspension other than the subsistence allowance paid has also been forfeited. The petitioner filed a belated appeal against the said order of punishment which has been dismissed on 15.12.2021 on the ground of delay. Though, the appeal has been dismissed on the ground of delay as it was filed with a delay of one year, nevertheless, considering the assertion of the petitioner that the punishment order is without jurisdiction and invalid in the eyes of law, this fact itself does not create any hurdle in considering the validity of the original punishment order dated 15.06.2017 as if it is found that, in fact, it is void and ab initio then the aforesaid fact would not be of much relevance. At page no.110 of the writ petition is notice of retirement served by opposite party no.2 upon the petitioner informing him about his ensuing retirement on 31.01.2017. Therefore, based on documentary proof which is in the form of an order/ notice of opposite party no.2 himself, it is evident that the petitioner was to retire on 31.01.2017 and in the writ petition, he has stated that he, in fact, retired on 31.01.2017 from the service of opposite party no.2. It is not in dispute that prior to his retirement, disciplinary proceedings were initiated against him. However, the same could not be concluded till his retirement on 31.01.2017 as is evident from the punishment order dated 15.06.2017. Now, the question is as to whether there is any provision in the rules applicable to the U.P. State Food and Essential Commodities Corporation Ltd. which could permit continuance of such proceedings after retirement and imposition of punishment as per the discipline and appeal rules. On a pointed query being put to learned counsel for opposite party no.2 as to whether Regulation 351-A of the Civil Services Regulations are applicable, he fairly submitted that they are not applicable. In fact, learned counsel for the petitioner invited attention of the Court to the judgment dated 20.05.2016 passed in Writ Petition No.10191 (S/S) of 2016 [Syed Kazim Raza vs. State of U.P. & Ors.].

"Heard.

On 11.5.2016 the following order was passed:

"Heard learned counsel for the parties.

Sri S.P. Singh learned counsel appearing for the Corporation submits that some CBI investigation or inquiry is going on relating to food scam in the State of U.P. and the petitioner is said to be involved therein on account of which his post retiral dues consequent to his retirement on 30.11.2015 have not been released.

On a query being put to the counsel for the Corporation as to whether any charge sheet has been filed against the petitioner before the court of competent jurisdiction, Sri Singh says that no charge sheet has been filed against the petitioner. Another query was put to Sri Singh as to under which provision the post retiral dues have been withheld, he states that there is no such provision in the Service Rules which govern the conditions of service including payment of post retiral benefits. It was also asked from the learned counsel appearing for the Corporation as to whether departmental action was initiated and has been taken to its logical conclusion against the petitioner Sri Singh submits that no such action has been initiated.

In view of the above it is inexplicable as to how the post retiral dues could be withheld. However one opportunity is given to the learned counsel appearing for the Corporation to look into the matter afresh. He is also directed to assist the court after seeking requisite information from opposite party no.1 as to whether there is any provision under which the the post retiral dues of the petitioner could be withheld as it prima-facie appears that the Rules of Government are not applicable to the employees of the Corporation. The learned counsel shall also inform the Court the provisions of law/rules under which the post retiral benefits are admissible to the employees of the Corporation and place the same before the Court.

List this case on 20.05.2016 as fresh."

Today Sri S.P. Singh informs that the post held by the petitioner was not pensionable. The only post-retirement benefits admissible as per the relevant rules and government orders were gratuity, amount under the Employees Provident Fund and leave encashment.

On being asked as to whether there is any provision in the Service Rules or under any other enactment which may be applicable under which the Corporation could withhold the retirement benefits of the petitioner, he fairly replied that there was no such provision.

Gratuity is payable as per provisions of Payment of Gratuity Act 1972 which has been adopted by the Corporation. Under the provisions of the said Act the eventualities in which recovery could be made from an employee are mentioned in Section 4(6), none of which exists in the present case as the services of the petitioner were never terminated.

As far as leave encashment is concerned, same is payable under some government orders which as per Sri S.P. Singh do not contain any provision for withholding the same.

The only ground on which the payment of the aforesaid benefits has been withheld is the pendency of an investigation into certain alleged criminal offence by the Central Bureau of Investigation (C.B.I.), however, no such provision has been pointed out by the opposite parties under which the said benefits could be withheld. It is not in dispute that no departmental proceedings had been initiated against the petitioner nor any order of recovery was passed against him.

In view of the above, this writ petition is allowed with a direction to the opposite parties to release the gratuity and leave encashment of the petitioner within two months from the date a certified copy of this order is submitted.

Sofar as other service dues of the petitioner are concerned which are still to be paid, the petitioner may submit a representation in this regard which shall also be considered and decided within the aforesaid period. "

In the aforesaid judgment, it has been clearly held that there is no such provision under which the Corporation could withhold the retirement benefits of the petitioner and also that gratuity being payable under the Payment of Gratuity Act, 1972 which has been adopted by the Corporation, under the provisions of the said Act, the eventualities in which recovery could be made from an employee are mentioned in Section 4(6) of the aforesaid Act. In judgments passed in Writ Petition No.17614 (S/S) of 2021 [Ashok Kumar Singh vs. U.P. State Food And Essential Commodities Corp. & Ors.] dated 18.08.2021; Writ Petition No.1106 (S/S) of 2021 [Shriprakash Upadhaya vs. State of U.P. & Ors] dated 18.01.2021; Writ Petition No.27442 (S/B) of 2017 [Chandra Prakash Verma vs. Chairman, U.P. Govt. Employees Welfare Corp. & Anr.] dated 15.11.2017; Civil Appeal No.2101 of 1999 [Bhagirathi Jena vs. Board of Directors, O.S.F.C.] dated 31.03.1999; similar opinions have been expressed. The eventuality existing in this case is not prescribed in Section 4(6), therefore, even under the said Act, the gratuity could not be deducted / withheld/ recovered. The impugned order also does not mention any provision in the rules under which such inquiry could be continued after retirement and the punishment could, in fact, be imposed.

In view of the above, the impugned order is hereby quashed and as the appellate order has been passed on the appeal arising from the punishment order, therefore, it also has to go as the original order is being quashed. It is also accordingly quashed. Liberty, however, is granted to opposite party no.2 and its officials to file a suit for recovery for recovery of any amount due from the petitioner, if otherwise permissible in law, subject to the law of limitation etc.

It is further provided that if any officer was responsible for the delay in conclusion of inquiry/ disciplinary proceedings, it shall be open for opposite party no.2 to recover the due amount from the said officer if the Corporation so chooses but only in accordance with law and not otherwise.

In view of the above, 15% gratuity, which as has been informed, has already been deducted based on the impugned order, it shall be refunded to the petitioner. The remaining salary for the period of suspension shall also be paid to the petitioner. Both these amounts shall be given within two months.

The writ petition is disposed of in the aforesaid terms."

In view of the law already discussed therein as there is no provision in the service rules applicable to the officers and employees of the opposite party-Corporation under which the Corporation could have withheld the retirement benefits of the petitioner by passing an order after his retirement and also as gratuity is payable under the Act, 1972 which has been adopted by the Corporation and as under the said Act, 1972 the eventualities in which recovery could be made from an employee are mentioned in Section 6(4) of the Act, 1972, which are not attracted herein, therefore, the impugned order can not be sustained. The initial order dated 09.08.2017 itself being without jurisdiction the fact that appeal was filed belatedly is rendered in consequential, therefore, both the impugned orders and the Appellate orders are quashed, however, with liberty to the concerned opposite parties to file a suit for recovery of any amount due from the petitioner, if otherwise permissible in law and subject to the law of limitation in this regard.

It is further provided that if any officer or employee was responsible for delay in conclusion of inquiry and disciplinary proceedings against the petitioner while he was in service, it shall be open for the opposite party no. 2 to recover the due amount from the said officer if the Corporation so chooses, but, only in accordance with law.

As the 25% gratuity withheld by the impugned order has not been paid as yet, therefore, the opposite party no. 2 is directed to pay the said amount within two months from today.

The learned counsel for opposite party no. 2 Shri Samanvay Dhar Dwivedi shall communicate this order to opposite party no. 2 and such other officer with the Corporation as may have a role to play in this regard, for compliance.

The writ petition is allowed.

(Rajan Roy,J.)

Order Date :- 12.4.2022

R.K.P.