Reddy Rajaiah vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 21583 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 5
 

 
Case :- WRIT - A No. - 8321 of 2022
 

 
Petitioner :- Reddy Rajaiah
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Forest Lko. And 3 Others
 
Counsel for Petitioner :- Satish Singh
 
Counsel for Respondent :- C.S.C.,Lakshmipat Shukla
 

 
Hon'ble Rajnish Kumar,J.

Heard, Shri Satish Singh, learned counsel for the petitioner and Shri Som Kartik, Advocate holding brief of Shri Lakshimipat Shukla, learned counsel for the respondents.

This court had passed the following order on 12.12.2022:-

"Sri Satish Singh, learned counsel for the petitioner submits that the petitioner has retired after attaining the age of superannuation on 31.07.2021 and the impugned order of recovery has been passed on 16.11.2022, after his retirement whereas there is no provision of enquiry after retirement of the petitioner as provisions of Article 351 A of Civil Service Regulation is not applicable. Therefore the submission is that withholding of the retiral dues on the basis of the aforesaid recovery order is not tenable and the petitioner is entitled for the retiral dues alongwith interest.

Sri Ravi Kant Shukla,Advocate holding brief of Sri L.P.Shukla, learned counsel for the respondent nos. 2 to 4 prays for and is granted a week's time to seek instructions.

List on 19.12.2022 in top ten cases. "

Learned counsel for respondents no.2 to 4 on the basis of instructions does not dispute that the action has been taken against the petitioner only after his retirement on 31.07.2021.

In view of above the case is covered by the order dated 01.11.2022, passed in Writ-A No.6865 of 2022; Satyadev Singh Versus State of U.P. and others, which is extracted here-in-below:-

"1. Heard, Shri Alok Singh, learned counsel for the petitioner, learned Standing Counsel for opposite party no.1 and Shri Ravi Kant, Advocate holding brief of Shri Lakshmipat Shukla, learned counsel for opposite parties no.2 to 4.

2. This writ petition has been filed challenging the order dated 11.11.2021 by means of which the representation of the petitioner for payment of withheld amount of leave encashment has been rejected on the ground that some recovery is pending against the petitioner, which is to be made from the amount of leave encashment.

3. Submission of learned counsel for the petitioner is that no inquiry was held during service period of the petitioner and there is no provision for inquiry in the respondent-Corporation after retirement of an employee. Even if the provisions of Regulation 351-A of the Civil Service Regulations can be invoked no recovery can be made from the amount of leave encashment because the recovery under the said regulation can be made only from the pension which would include the gratuity. This issue has been adjudicated by this court in Writ-A No.2197 of 2022; Vinod Kumar Versus State of U.P. and others by means of judgment and order dated 21.04.2022. The Special Appeal Defective No.59 of 2022;Managing Director U.P.Forest Corporation, Lucknow and others Versus Vinod Kumar and another filed against the aforesaid order dated 21.04.2022, has been dismissed, by a Division Bench of this court, by means of judgment and order dated 06.07.2022.

4.On the basis of above, learned counsel for the petitioner submits that the impugned order is not sustainable and the withheld amount of leave encashment cannot be withheld and liable to be paid.

5. Learned counsel for the respondents no.2 to 4, on the basis of instructions, does not dispute that no enquiry was held during the service period of the petitioner and it is only after his retirement some recovery is found against the petitioner. He also does not dispute the legal position that no inquiry can be held in the respondent-Corporation after retirement of an employee.

6.Having considered the submissions of learned counsel for the parties and on perusal of record this court is of the view that the issue as to whether recovery can be made from the amount of leave encashment or not stands settled by this court by the judgment and order dated 21.04.2022 passed in Writ-A No.2197 of 2022. The Special Appeal Defective No.59 of 2022 filed against the said order has been dismissed by means of judgment and order dated 06.07.2022, in which I was also a Member. The relevant portion of the judgment and order dated 06.07.2022 is extracted below:-

"Learned Single Judge after considering the issues in detail, has come to a conclusion that even if the disciplinary proceedings after retirement of respondent no.1-petitioner were permissible, what could be withheld on conclusion of such disciplinary proceedings is the amount of pension which would include gratuity. Learned Single Judge has categorically recorded a finding that on conclusion of the disciplinary proceedings after the requisite sanction under Regulation 351-A of Civil Service Regulation, the amount of leave encashment cannot be withheld. The applicability of provisions of paragraph 351-A of Civil Service Regulation to a retired employee of the Forest Corporation was neither an issue before the learned Single Judge nor is this Court in special appeal dwelling upon such issue. However, what is noticeable is that even if paragraph 351-A of Civil Service Regulation is applicable to the respondent no.1-petitioner and on such permission as contemplated in paragraph 351-A of Civil Service Regulation the disciplinary proceedings are initiated and even if the respondent no.1-petitioner after conclusion of disciplinary proceedings is held to be guilty, the amount which can be withheld is that of the pension which will include gratuity. The reasons given by learned Single Judge in this regard in the judgment and order under appeal are sufficient to hold that the amount of leave encashment cannot be withheld in such a manner.

At this juncture, learned counsel for the appellant refers to the provisions of Section 24 of U.P. Forest Corporation Act, 1975 which provides that the Chairman, Managing Director or any other Member or employee of the Corporation shall be liable to surcharge for any loss, waste or misapplication of any money or property of the Corporation. It further provides that such liability shall accrue in case such loss, waste or misapplication is a direct consequence of neglect or misconduct of an employee of the Corporation while discharging his duties as such. To give effect to the provisions of Section 24 of the Forest Corporation Act the Corporation has framed Rules known as U.P. Forest Corporation Surcharge Rules, 1992. According to the second proviso appended to Sub Rule (2) of Rule 4 of the said Rules, no employee can be made liable for any loss, waste or misapplication after expiry of four years from the occurrence of such loss, waste or misapplication after expiry of three years from the date such an employee ceases to be an employee of the Corporation, whichever is later.

The emphasis laid by learned counsel for the appellant is on the provision contained in Sub Section (4) of Section 24 according to which the Corporation is not prevented from deducting any amount of surcharge from any some payable to such an employee. The submission is that "any sum" occurring in Sub Section (4) of Section 24 of the Act would include the amount of leave encashment as well.

The aforesaid submission made by learned counsel for the appellant, in our considered opinion, is not acceptable in this special appeal for two reasons; firstly, the plea of applicability of Section 24 of U.P. Forest Corporation Act and that of U.P. Forest Corporation Surcharge Rules, 1992 was neither taken by the appellant-Corporation before the learned Single Judge nor has it been an issue in the writ petition, and secondly the order dated 8.11.2021 was passed by the Managing Director of the appellant-Corporation keeping in view the pendency of the disciplinary proceedings and not on account of pendency of any surcharge proceedings. It is for this reason that the learned Single Judge has clearly stated in the judgment and order dated 21.4.2022 that the order passed by Managing Director dated 8.11.2021 so far as the same deferred consideration of payment of leave encashment is vitiated for the reasons mentioned in the said order itself and not for any other reason.

We are in complete agreement with the judgment and order dated 21.04.2022, passed by learned Single Judge. "

7. In view of above, no recovery can be made from the amount of leave encashment, therefore this court is of the view that the impugned order is not sustainable in the eyes of law and is liable to be quashed.

8. The writ petition is allowed. The order dated 11.11.2021, contained in annexure no.1 to the writ petition, is hereby quashed. No order as to costs.

9. The respondents are directed to make payment of withheld amount of leave encashment to the petitioner within a period of two months from the date of production of a certified copy of this order."

Learned counsel for the respondents could not dispute the above. However he submits that the action can be taken against the petitioner under the U.P. Forest Corporation Surcharge Rules 1992.

In view of above, the writ petition is allowed. The order dated 16.11.2022, passed by opposite party no.3 is hereby quashed. The respondents no.3 and 4 are directed to make the payment of leave encashment within a period of four weeks from the date of production of a certified copy of this order. However, it will be open for the respondents to take appropriate action in accordance with law, if permissible, under the aforesaid rules.

.

............................................ (Rajnish Kumar,J.)

Order Date :- 19.12.2022

Banswar