Smt. Shobha Agarwal W/O Late S.C. ... vs State Of U.P. Through Principal ...
2022 Latest Caselaw 1999 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 7
 

 
Case :- WRIT - A No. - 2001714 of 2008
 

 
Petitioner :- Smt. Shobha Agarwal W/O Late S.C. Agarwal
 
Respondent :- State Of U.P. Through Principal Secretary Medical And Health
 
Counsel for Petitioner :- Smt. B. Godiyal,Madhumita Bose
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Irshad Ali,J.

1. Heard Ms. Madhumita Bose, learned counsel for the petitioner and learned Standing Counsel for the State-respondent.

2. By means of the present writ petition, the petitioner has challenged the order of recovery dated 21.7.2008, contained as Annexure-1 to the writ petition, by means of which, Rs.68,526/- was directed to be recovered as excess payment of gratuity. The husband of the petitioner died in the year 2004 and this petition has been filed by the widow wife, claiming interest on the delayed payment of family pension as well as challenging the order of recovery passed for recovery of Rs.68,526/-, excess payment as alleged, which is made to the husband of the petitioner.

3. Facts of the case are that the husband of the petitioner joined the Provincial Medical Services after being selected by the Uttar Pradesh Public Service Commission. He has done M.D. and his service was approved by the U.P. Public Service Commission in the year 1970. He was implicated in a criminal case and was prosecuted in the court of Civil Judge, Kanpur and consequently, suspended from service.

4. Vide order dated 28.7.1979, he was acquitted by the Special Judge, Kanpur and copy of the judgment and order of acquittal was made available to the Director, Medical and Health Services alongwith the covering letter. When no action was taken, then the petitioner approached the U.P. Public Services Tribunal by filing Claim Petition No.118/F/II/82 (Dr. S.C. Agarwal Vs. State of U.P. and others) for appropriate relief. After hearing the parties and going through the relevant record, the U.P. Public Services Tribunal allowed the petition, quashed the order of suspension dated 14.2.1977 and awarded the husband of the petitioner all consequential benefits, including the salary, allowances and revision of pay scale etc.

5. Against the said judgment and order, the respondents filed writ petition before this Court, which was dismissed as not maintainable. The amount due to the husband of the petitioner i.e. Rs.15,00,500/- towards his dues and pay from March, 1977 to January, 1993, leave encashment, gratuity and pension from February, 1993 to August, 1998 and Rs.500/- as cost of the case awarded by the Tribunal, was given to the husband of the petitioner on 7.7.2001.

6. The respondents filed Civil Revision No.10.7.2001, whereby notice was issued on the application for condonation of delay. The husband of the petitioner applied for arrears of pension in the prescribed proforma. The respondents have not released arrears of pension to the husband of the petitioner from 29.8.1993 and also the regular pension and they were also not giving G.P.F. to the husband of the petitioner, then Writ Petition No.1782 (S/B) of 2001 was filed wherein on 25.1.2002, an interim order was passed by this Court, directing that in case there is no restraint order of any court and if there is no legal impediment, the pension shall be paid regularly to the husband of the petitioner.

7. When no compliance was made, then Contempt Petition No.1456 of 2002 was filed, wherein notices were issued to the respondents on 19.9.2002. The husband of the petitioner died on 21.8.2004.

8. On 9.5.2008, this Court granted three days' time to the respondents to file counter affidavit and comply with the order of the writ court passed on 25.1.2002. Thereafter, the matter came up and on the basis of averments made in the counter affidavit, this Court came to the conclusion that the legal heirs of husband of the petitioner, i.e. the petitioner is entitled for pension of the deceased from 29.8.1998 to 21.8.2004. It was also found by the Court that the petitioner is entitled for family pension from 21.8.2004 in view of the averments made in paragraph-14 of the counter affidavit. It was specified by this Court that necessary calculation and formalities will be completed with the help of the petitioner.

9. On 23.5.2008, an order was passed by this Court to the effect that an order has been issued by the State Government through the Director General, Medical and Health Services to calculate and release the pension of the deceased S.C. Agarwal (husband of the petitioner) from the date of stoppage of the pension till his death and also issue orders for family pension including the arrears in favour of the widow of the deceased. The Director General also issued an order on 21.5.2008, calculating the arrears of pension of the deceased as Rs.6,91,010/- and by another order dated 21.5.2008, the pension amount of Rs.6,91,010/- was directed to be released in favour of the widow of the deceased. Some queries were made, which were duly clarified by the petitioner.

10. Now, on the basis of recalculation, Rs.68,526/- has been directed to be deducted from the gratuity of the husband of the petitioner though the entire matter stands finally adjudicated by this Court and the concerned department.

11. Submission of learned counsel for the petitioner is that the impugned order of recovery has been passed without notice and opportunity of hearing to the petitioner. Next submission is that at earlier point of time, entire material was examined and payment schedule was prepared and accordingly, the payment was made. She submits that the entire exercise done is ex-parte and on bare perusal of the impugned order of recovery, it is evident that no notice nor opportunity of hearing was provided to the petitioner prior to passing of the order.

12. It is also submitted that the payment was made delayed and no penal interest or interest was paid to the petitioner on the amount which was paid delayed, thus, her submission is that direction may be issued to the respondents to pay interest on the delayed payment. She submits that in the counter affidavit, there is no denial in regard to the fact that the order was passed without affording opportunity of hearing to the petitioner. In paragraph-6 of the supplementary counter affidavit, payment schedule has been given and on that basis, the respondents have tried to demonstrate that only excess payment which was paid to the petitioner has been directed to be made.

13. Learned Standing Counsel points out that although the impugned order does not contain that it has been passed after affording opportunity of hearing to the petitioner, but in absence of any averment in the writ petition in regard to violation of principal of natural justice, the same shall be treated to be passed after affording opportunity of hearing to the petitioner.

14. I have considered the submission advanced by learned counsel for the parties and perused the material on record.

15. It is admitted case of the parties that no penal interest or interest has been paid to the petitioner on the delayed payment. In regard to the order of recovery (Annexure-1 to the writ petition), it is evident that no notice nor opportunity of hearing was afforded to the petitioner prior to fixation of pension and gratuity, therefore, there is no hesitation to hold that the order is in violation of principles of natural justice. The amount of recovery has been made on the basis of ex-parte fixation.

16. In view of the above, on the short ground, this writ petition succeeds and is allowed.

17. The impugned order dated 21.7.2008 is hereby quashed and the matter is remanded back with the liberty to the respondents to pass a fresh order after affording an opportunity of hearing to the petitioner.

18. It is however made clear that the petitioner is also entitled for the interest on the delayed payment at the rate of 9% per annum.

Order Date :- 5.5.2022

Gautam