Ram Sanehi Verma vs The State Of U.P Thru Principal ...
2023 Latest Caselaw 3612 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
(Lucknow)
 
**********
 

 
Court No. - 3
 

 
Case :- WRIT - A No. - 3551 of 2011
 

 
Petitioner :- Ram Sanehi Verma
 
Respondent :- The State Of U.P Thru Principal Secy. Basic Edu. And Ors.
 
Counsel for Petitioner :- Alok Kumar,Pradeep Kumar Srivastava,Pravin Kumar Verma
 
Counsel for Respondent :- C.S.C,D.R Misra,Rahul Shukla
 

 
Hon'ble Rajan Roy,J.

Heard Sri Pradeep Kumar Srivastava, learned counsel for the petitioner and Sri Rahul Shukla, learned counsel for B.S.A.

The petitioner while working as Head Master was asked to undertake construction of school building of Purva Madhyamik Vidhyalaya, Piprihar Majre Paschim Belawn Vikas Khand Siddaur vide order dated 11.09.2008. Requisite money for construction of building was also transferred to Gram Sikhsha Nidhi, Khata No.12299 with Aryavart Gramin Bank, Branch-Motikpur. However, the Assistant Basic Education Officer, Sidhaur informed Basic Education Officer, Barabanki that the school is not as per the norms prescribed, meaning thereby, the site on which construction was to take place was not as per the norms. Accordingly, vide letter dated 18.12.2008, the petitioner was directed not to start construction. However, from the records it is revealed that prior to issuance of this letter dated 18.12.2008, he had already issued three cheques, one in the name of Janta Brick Field amounting to Rs.50,000/-, another in the name of Amir Hasan amounting to Rs.70,000/- and yet another cheque amounting to Rs.50,000/- in his own name as per the passbook pertaining to the Gram Nidhi Account referred above. The aforesaid cheques were encashed on 10.12.2008, 12.12.2008 and 13.12.2008 respectively. Therefore, the money was already withdrawn/ paid prior to issuance of letter dated 18.12.2008. As such, recital in the order dated 29.03.2011 passed in pursuance to order dated 29.07.2010 in Writ Petition No.6057 (S/S) of 2009 filed by the petitioner earlier, that, inspite of the said letter the money was withdrawn, is not correct.

However, there is another allegation in the said order which, in fact, has not even been challenged by the petitioner. The other allegation is that in view of letter dated 24.06.2009 of the Assistant Basic Education Officer, Sidhaur and the report of Junior Engineer dated 26.06.2009, some foundation work had been done at the site, the total cost of which was Rs.1,630/- and 400 cubic feet 'Gitti', total value of which was about Rs.7,000/- was lying on the site. Therefore, as per the said report, a total amount of Rs.8630/- was mentioned as having been spent by the petitioner out of Rs.1,70,000/- withdrawn/ paid by him. Therefore, Rs.1,61,370/- was unaccounted for. The said order further goes on to state that the petitioner on attaining the age of superannuation on 30.06.2008 retired from service as Head Master and handed over charge to his successor Sri Sanjay Verma but in the charge list containing item nos.1 to 60, there was no mention about construction material such as brick, sand, doors, windows etc. It is not out of place to mention that earlier the petitioner had filed Writ Petition No. 6057 (S/S) of 2009 challenging an order dated 01.07.2009 by which the petitioner was asked to deposit Rs.1,61,370/- i.e. the amount which was unaccounted for and was being treated as having been misappropriated by the petitioner as it had not been utilized for construction of building. The said order was quashed by this Court on 29.07.2010 in the aforesaid writ petition following terms:-

"Heard learned counsel for the petitioner and the learned counsel for the BSA.

The present writ petition has been filed challenging the order dated 1.7.2009.

Submission of learned counsel for the petitioner is that before passing the impugned order dated 1.7.2009 no opportunity was given to the petitioner. The petitioner has retired on 30.6.2009 and abruptly the impugned order was passed on 1.7.2009. He further submits that the building material is lying on the spot and necessary vouchers are also there on record, but all those things have been ignored by the opposite parties. It is submitted that if any opportunity would have been given to the petitioner, he could have explained the deficit and no liability could have been fastened upon him.

Counsel for the opposite parties could not point out from the record that as to in what manner opportunity was given to the petitioner before passing the impugned order.

In these circumstances, the impugned order, on the face of it, is illegal on account of violation of principles of natural justice as the petitioner has not been given any opportunity to put forward his case. Therefore, the impugned order cannot be sustained in law and is liable to be quashed.

Writ petition is accordingly allowed and a writ in the nature of certiorari is issued quashing the order dated 1.7.2009. The matter is remitted to the Basic Shiksha Adhikari to proceed afresh in accordance with law after giving opportunity of hearing to the petitioner and take a decision within a period of three months from the date a certified copy of this order is produced before him. "

The matter was remitted back to Basic Education Officer to proceed afresh in accordance with law after giving opportunity of hearing to the petitioner and to take a decision within three months. It is in pursuance of this order that the subsequent order dated 29.03.2011 was passed and the same is annexed as Annexure SCA-3 to the supplementary counter affidavit of B.S.A. dated 02.12.2021. This order, as informed, was also annexed with reply filed in the contempt proceedings initiated by the petitioner which was disposed of on 08.01.2014. Therefore, the petitioner was well aware about the order dated 29.03.2011 but has not challenged the same.

At this stage, it is not out place to mention that the petitioner had filed another petition bearing Writ Petition No.8607 of 2010 which was decided on 21.12.2010 in the following terms:-

"Notice on behalf of opposite party no. 1 has been accepted by learned Chief Standing Counsel and Shri D.R. Mishra, Advocate has accepted notice on behalf of opposite parties no. 2 and 3.

By means of present writ petition, the petitioner is seeking a writ in the nature of mandamus for commanding the opposite parties to make payment to petitioner of retiral benefits.

The submission of the learned counsel for the petitioner is that petitioner while working as Pradhanadhyapak, Prathamik Viddyalaya Kusumbhi Vikas Khan Siddhaur, District-Barabanki, attained the age of superannuation on 30.10.2008. Just after the retirement of the petitioner on 1.7.2009 a recovery order was passed against the petitioner, failing which an F.I.R. would be lodged against him. By means of Writ Petition No. 6057 (S/S) of 2009, petitioner challenged the recovery order dated 1.7.2009 and the same was quashed by this Court by means of judgment and order dated 29.7.2010 and the matter was remitted back to B.S.A. to proceed afresh in accordance with law after giving opportunity of hearing and take a decision within a period of three months. Further submission of the learned counsel for the petitioner is that till date no final decision has been taken by the B.S.A. and the petitioner has been deprived of his retiral benefits. It is also submitted by the learned counsel for the petitioner that on the one hand no decision was taken by the District Basic Education Officer and on the other hand even the admissible retiral dues has not been issue to the petitioner. The petitioner time and again approached the District Basic Education Officer for redressal of his grievance, but he is sitting tight over the matter. Lastly, by means of representation dated 18.11.2010 (Annexure No. 1 to the writ petition) petitioner approached the District Basic Education Officer, Barabanki, but no action was taken by him.

The precise prayer of the learned counsel for the petitioner is that ends of justice would be served if directions are issued to opposite party no. 2 to consider and decide the representation dated 18.11.2010 of the petitioner (Annexure no. 1 to the writ petition) by means of speaking and reasoned order within time frame fixed by this Court.

Learned Standing Counsel has no objection to this prayer of learned counsel for the petitioner.

In view of the above, the present petition is disposed of finally with a direction to opposite party no. 2 to consider and decide the representation of the petitioner dated 18.11.2010 (Annexure no. 1 to the writ petition) by means of speaking and reasoned order within a period of six weeks from the date of receipt of a certified copy of this order and the decision so taken be also communicated to the petitioner.

With the aforesaid directions, this writ petition is finally disposed of. "

This petition was filed seeking post-retiral dues. In pursuance to this order, the order impugned in this petition dated 05.04.2011 has been passed by the Basic Education Officer wherein the aforesaid facts as already noticed in the order dated 29.03.2011 have been mentioned and it has been said that all dues have been paid except Rs.1,61,370/- which is the amount withdrawn/ paid by him for construction of school building which did not take place nor was the material available at the site for such construction as such the same has been adjusted accordingly.

Learned counsel for the petitioner has raised only three grounds of challenge during course of argument. Firstly, he invited attention of the Court to the order dated 01.07.2009 which has already been quashed wherein it has been stated in last line of paragraph no.1 that - 'तथा निर्माण स्थल पर निर्माण समग्री पड़ी है'. Based on this, he submitted that it is an admitted position of the opposite parties that construction material was lying at the site, therefore, the order of adjustment / recovery of Rs.1,61,370/-is not sustainable. However, the Court finds that reference in last line of para no.1 as quoted hereinabove is to 400 cubic 'Gitti' lying on the site costing about Rs.7000/- as has been mentioned in the second paragraph itself, and, in fact, it has never been the case of opposite parties in any of the three orders passed by them that the entire construction material amounting to Rs.1,70,00/- or odd was lying on the site. In fact, the allegation is that the amount was withdrawn/ paid but the construction material was not available on the site except 400 cubic ft 'Gitti' amounting to Rs.7,000/- and that no construction except some foundation work had taken place. Therefore, this contention is misconceived and is rejected.

The second contention is that he has annexed receipts by the person in whose favour cheques have been issued. This fact has been found to be correct on an inquiry consequent to the order of this Court dated 24.04.2014 subject to the caveat that one of the cheques issued by the petitioner in his own name amounting to Rs.50,000/- which was encashed on 13.12.2008 and that two cheques which has been issued to Janta Brick Field and Amir Hasan, though, the same has been encashed, these persons could not verify the receipts available with them about such receipt. The order dated 29.03.2011 very categorically states that merely providing receipts is not sufficient unless the material in pursuance of the money paid is available or had been utilized in construction of the building. The Court is of the opinion that the reasoning given in the order dated 29.03.2011 in this regard is correct. Unless the material was supplied and the same was utilized in construction of building or if not utilized, it was available, no benefit can accrue to the petitioner merely on account of having issued the cheque and the same having been encashed. Therefore, this contention is not of much help to the petitioner.

The other contention of learned counsel for the petitioner is that Rs.50,000/- encashed by him in his own name was utilized towards labour charges. However, the orders referred hereinabove categorically provide that the amount of foundation work done would involve utilization of only 45 cubic feet of 'Gitti' and the total cost would be Rs.1630. These are factual disputes and this Court under Article 226 of the Constitution of India is not well equipped to go into them. Most important, the petitioner on demitting office on 30.06.2009 when he handed over charge to his successor-Sanjay Kumar Verma, the charge list contained only 60 items and none of which mentioned about any construction material which may have been available at the site. Therefore, in the absence of mention of construction material in the charge list, it is difficult for this Court to arrive at a conclusion in favour of the petitioner that he had handed over the construction material, available at the site, to his successor. It is an admitted position that building was not constructed and only some foundation work was done.

No other argument has been advanced by learned counsel for the petitioner.

Sri Rahul Shukla, learned counsel for B.S.A. invited attention of the Court to the reasons given in the order dated 29.03.2011, which according to him, is the main order which is the basis for adjustment/ recovery of an amount Rs.1,61,370/- from the petitioner which has not been challenged. He says that the reasons given therein are cogent and have not been successfully rebutted by the petitioner. Therefore, the petition is liable to the dismissed.

In these circumstances, merely because the impugned action has been taken after petitioner's retirement on 30.06.2009 does not persuade the Court to interfere in the matter. The petitioner was given an amount of Rs.1,70,000/- with the hope and trust that he shall utilize the said public money for the purpose it had been given. This Court does not have any material before it to arrive at a conclusion that the same was utilized for construction of the building or for purchase of construction material which was duly supplied to the petitioner and was handed over by him to his successor. In the absence of such material, it is not possible for this Court in exercise of its discretionary and equitable jurisdiction to interfere with the impugned order. The aforesaid orders of adjustment have not been passed based on any disciplinary proceedings but have been passed on account of the facts and circumstances stated above. Petitioner may avail other remedies in this regard, if any. But this Court would not interfere in the facts and circumstances discussed hereinabove. Learned counsel for the petitioner fairly says that other post-retiral dues except an amount of Rs. 1,61,370/- referred hereinabove has already been paid to the petitioner. This Court, therefore, declines to exercise its discretionary and equitable jurisdiction in the matter.

Accordingly, the writ petition is dismissed but with the aforesaid liberty.

(Rajan Roy,J.)

Order Date :- 6.2.2023

Shanu/-