Sri Shraddha Nand Sharma vs State Of U.P.Thru Its ...
2022 Latest Caselaw 22405 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 25
 
Case :- WRIT - A No. - 5683 of 2013
 
Petitioner :- Sri Shraddha Nand Sharma
 
Respondent :- State Of U.P.Thru Its Prin.Secy.Deptt.Of Landdevelopmentandors
 
Counsel for Petitioner :- Dr. Deepti Tripathi,Randheer Singh Malik
 
Counsel for Respondent :- C.S.C.,Shatrohan Lal
 

 
Hon'ble Rajan Roy,J.

Heard Dr. Deepti Tripathi, learned counsel for the petitioner, learned Standing Counsel for the State and Mr. Satrohan Lal, learned counsel appearing on behalf of opposite party no.3.

By means of the instant writ petition the petitioner has inter alia challenged an order dated 7.9.2002 by way an amendment which was allowed earlier. A writ of mandamus has also been sought by the petitioner for release of post retiral dues i.e. gratuity amounting to Rs.2,48,200/- along with 18 per cent interest per annum from the date of retirement i.e. 31.07.2000

The facts of the case are that the petitioner was appointed as Pravidhik Sahayak in Ram Ganga Command Project which has subsequently been merged in the Greater Sharda Sahayak Pariyojna. The petitioner retired from the service of the concerned opposite party on 31.07.2000 while working on the post of Subject Matter Specialist Agronomy. According to the petitioner all formalities pertaining to the post retiral dues had been completed and the pension payment order was issued by the Directorate of Pension on 6.9.2002, however, the said pension payment order mentioned that the amount of Rs.2,48,200/- towards his gratuity has been withheld without mentioning the basis for such withholding of gratuity. The record reveals that the matter was taken by the petitioner before the Pension Adalat which is an internal mechanism under the State Government for settlement of post retiral dispute. The petitioner has annexed the application dated 28.11.2002 as Annexure No.4 given by the petitioner before the said Adalat and according to the petitioner an order was passed on 14.02.2003 for release of the post retiral dues of the petitioner within one month. The monitoring of the payment shall be done by Joint Director, Treasury and Pension, Kanpur. However, the opposite party no.3 in the counter filed through Sri Jai Prakash Srivastava has brought on record the order dated 28.06.2003/15.07.2003 by which the pension matter was disposed of by the Pension Adalat with the observation that the regular pension is being paid to the petitioner by the Treasury, Kanpur City and other retiral dues have been paid to the petitioner. Accordingly, the proceedings were dropped.

The contention of the opposite party no.3 is that a show cause notice was issued to the petitioner 15.11.1995 regarding certain losses for which the petitioner along with others were responsible and his liability was fixed as ten per cent of Rs.15,16,020/- which comes to Rs.1,51,602/-. Final orders could not be passed while the petitioner was in service but after retirement as no dues certificate had not been received with regard to the amount of gratuity payable to the petitioner which was Rs.2,48,200/-, accordingly it was stopped and subsequently it was found that the said disciplinary proceeding were still pending, therefore, on 7.9.2002 a decision was taken for recovery of the aforesaid amount on account of the loss caused to the employer. However, on being confronted as to whether there is any provision applicable in the service conditions of the officers and employees of the Ram Ganga Command Project from where the petitioner retired, permitting such recovery after retirement from the post retiral dues, learned counsel Mr. Satrohal Lal could not place any such provision. He however asserted that Regulation 351-A of Civil Services Regulation would apply as the project is an undertaking of the government. Mr. Satrohan Lal, learned counsel for the opposite party no.3 has not placed before the court any such memorandum of association or any rules, order or bye laws which may govern the functioning of the aforesaid Ram Ganga Command Project. In the absence of any specific provision it is difficult to accept that Regulation 351-A of CSR would apply. Even if it applies the fact of the matter is that the procedure prescribed under the said provision for recovery of any loss etc. from the post retiral dues including gratuity is as prescribed for imposing a punishment of dismissal. For the purposes of any action under Regulation 351-A of the Civil Services Regulation a charge sheet has to be issued and a full fledged enquiry is to be conducted. The reason is obvious as it causes grave pecuniary consequences to the retired employee, therefore, the aforesaid procedure is required to be followed. In this case a show cause notice was issued some times in the year 1995 but there is no reference to any enquiry having been held or charge sheet having been issued to the petitioner while in service or thereafter and almost more than two years after his retirement the order dated 7.9.2002 was passed ordering the recovery. In the rejoinder affidavit the petitioner has denied receipt of the show cause notice of 1995 and the subsequent order dated 7.9.2002.

Mr. Satrohan Lal, learned counsel for the opposite party no.3 was asked to place before the court requisite receipts by the petitioner of the aforesaid show cause notice and orders but he could do so as it is not on record. The court however finds that there is a document dated 8.1.2002 annexed as Annexure No.CA-5 to the counter affidavit filed by opposite party no.2/Director, Pension copy of which is endorsed to the petitioner and it refers to the liability of the petitioner to the extent of Rs.1,51,602/- based on the decision taken in the disciplinary proceedings held against him, though it does not mention specifically the order dated 7.9.2002 nor that the said order was annexed with this document. In response to para 4 of the said counter affidavit the petitioner has stated that he has no knowledge about the order dated 7.9.2002 and show cause notice dated 15.11.1995 therefore he could not challenge it. The rejoinder affidavit is of 2.5.2014, subsequently the writ petition was amended and the order dated 7.9.2002 has been challenged. However, in this paragraph the petitioner has not denied the document dated 8.1.2003 contained in Annexure No.CA-5 to the counter affidavit of opposite party no.2, therefore, based on the recitals therein the petitioner would have known about the disciplinary proceedings but it cannot be said that he was aware of or was provided the order dated 7.9.2002.

By then the petitioner had retired on 31.07.2000. Moreover, the record reveals that the total amount of Rs.2,48,200/- was transmitted by Ram Ganga Command Project to the Treasury, however, subsequently on a communication being sent that an amount of Rs.1,51,602/- is liable to be withheld the same was directed to be returned to the Ram Ganga Command Project and accordingly it was returned on 22.07.2014 as is mentioned in the counter affidavit of opposite party no.4-Treasury Officer. The remaining amount of Rs.96,598/- was payable to the petitioner towards gratuity and this was an undisputed amount which was sent to the Treasury by the Ram Ganga Command Project on 8.1.2003 and the Additional/Assistant Director, Treasury and Pension, Kanpur Mandal, Kanpur vide letter dated 11.03.2003 issued direction to Treasury, Kanpur Nagar for payment of the said amount.

In the counter affidavit of Fakire Lal/Assistant Accounts Officer under the opposite party no.2 i.e. the Director, Pension, U.P. has stated that the order dated 8.1.2003 for payment of remaining gratuity i.e. Rs.96,598/- was received in the office of the answering respondent no.2 on 18.1.2003 in pursuance to which the payment order dated 11.3.2003 was issused from the office of opposite party no.2. In the meantime, Pension Adalat was conducted in which the petitioner filed his case and on 14.2.2003 the Pension Adalat ordered for release of withheld gratuity amount to the petitioner. In compliance of the said order the Commissioner-cum-Administrator, Ram Ganga Command Project recommended for release of withheld gratuity of the petitioner and accordingly vide letter dated 11.3.2002 payment orders were passed in accordance with departmental recommendations. The Chief Treasury Officer, Kanpur Nagar informed vide letter dated 18.7.2014 that office order/payment order dated 11.3.2003 was received in the office and was made available to the concerned Pension Clerk (now retired), but no payment was made to the petitioner. In these circumstances the Chief Treasury Officer, Kanpur Nagar requested through letter dated 18.7.2014 for fresh issuance of authority letter/payment order so that the payment be made to the petitioner, in furtherance of which letter dated 18.7.2014 i.e. the duplicate authority letter/payment order was issued on 21.7.2014 and subsequently it was informed by the Chief Treasury Officer, Kanpur Nagar that the aforesaid amount of Rs.96598/- was paid to the petitioner on 21.7.2014.

From the discussions has been made hereinabove two things are clear. Firstly, that the alleged recovery of Rs.1,51,602/- is apparently illegal as already discussed above and secondly the undisputed amount of Rs.96,598/- remained with the opposite parties since 2003 till 21.7.2014 when it was transferred to the account of the petitioner. No plausible explanation has been offered by the opposite parties for the delay in payment of this undisputed amount, therefore, on this undisputed amount the petitioner is entitled to interest as on account of non-payment obviously he being a retired employee has suffered financially.

As regards the amount of Rs.1,51,602/- illegally recovered from the petitioner, the petitioner is entitled to the said amount also. In this context Mr. Satrohan Lal, leraned counsel for the concerned opposite party contended that the Pension Adalat had already decided the matter on 28.6.2003/15.7.2003 but the petitioner kept sitting over the matter and never approached the court. The petitioner filed the writ petition only in 2013 and he has not offered any explanation as to the delay in filing the writ petition so far as this amount of Rs.1,51,602/- is concerned. The decision of the Pension Adalat is not a decision of any statutory forum prescribed in law but it is an internal arrangement of the Government. Both the orders of Pension Adalat are apparently cryptic and it is not very clear as to what was the decision and which amount was to be paid and which was not to be paid. It is also not clear as to whether the order dated 7.9.2002 was before the Pension Adalat or not. As already discussed earlier so far as the order dated 7.9.2002 is concerned there is nothing on record to show that the said order was served upon the petitioner, however, from Annexure No.CA-5 to the counter affidavit of Fakire Lal as already discussed there is a mention of departmental proceedings in the context of the liability of the petitioner to the extent of Rs.1,51,602/-. The petitioner could have made enquiries in this regard and could have approached the court promptly although he may have been handicapped in this regard as he had retired by then. Nevertheless, this court is of the opinion that petitioner is not entitled to any interest on this amount of Rs.1,51,602/-. He is however entitled to be given the said amount as the recovery is apparently illegal. If Regulation 351-A is not applicable then there is no provision under which the order dated 7.9.2002 could have been passed. If it is applicable then the procedure prescribed therein as already discussed has not been followed, therefore, for this reason it is bad. The order dated 7.9.2002 is accordingly quashed with a direction to release the amount of Rs.1,51,602/- to the petitioner but without interest.

The petitioner shall be entitled to interest at the rate of 9 per cent on the amount of Rs.96,598/- which was undisputed but was illegally withheld by the Treasury from 8.1.2003 till the date of its actual payment. The aforesaid amount shall be released in favour of the petitioner within two months. If it is not so released then interest shall be payable after expiry of the aforesaid period of two months on the amount of Rs.96,598/- at the rate of 12 per cent per annum. The amount of Rs.1,51,602/- referred above shall also be paid within two months after which interest at the rate of 9 per cent per annum shall be payable on it by the opposite parties from the date of expiry of aforesaid period till its actual payment.

In view of the above, petition is allowed in the aforesaid terms.

All the opposite parties who have a role to play in the matter shall comply with the aforesaid judgment within the aforesaid period.

.

(Rajan Roy, J.)

Order Date :- 22.12.2022

Ram.