Allahabad High Court
Managing Director, U.P. Jal ... vs Meena Srivastava And Another on 1 March, 2023
Bench: Devendra Kumar Upadhyaya, Subhash Vidyarthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 2
Case :- SPECIAL APPEAL No. - 63 of 2023
Appellant :- Managing Director, U.P. Jal Nigam, Lko And Others
Respondent :- Meena Srivastava And Another
Counsel for Appellant :- Rishabh Kapoor,Krishna Kumar Vishwakarma
Counsel for Respondent :- Ajay Pandey,Ajay Pandey,C.S.C.
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Subhash Vidyarthi,J.
Heard learned counsel for appellants and Sri Dharmendra Kumar along with Sri Ajay Pandey, learned counsel representing the respondent no.1-petitioner. Learned State counsel has also been heard.
By means of this special appeal, a challenge has been thrown to the judgment and order dated 01.02.2023 whereby Writ-A No.132 of 2023 filed by the respondent no.1-petitioner has been allowed and the order which was challenged before learned Single Judge passed on 03.06.2022 has been set-aside. Learned Single Judge has also directed the appellant-Corporation to pay gratuity amount to the respondent no.1-petitioner to which her husband was entitled within a period of two months along with interest at the rate of 8% per annum.
In addition to the aforesaid direction for payment of gratuity along with interest at the rate of 8% per annum, the appellant-Corporation has also been directed to pay a cost of Rs.25,000/- and in case the said amount is not paid within two months along with interest, further penal interest at the rate of 2% per annum over and above has been directed to be paid to the respondent no.1-petitioner.
Submission of learned counsel for the appellants is that in view of the provisions contained in Paragraph 922 of Civil Service Regulations, any dues from a retiring government servant can be recovered out of the death-cum-retirement gratuity and accordingly exercising the said powers vested in the appellant-Corporation under Paragraph 922, an order was passed on 03.06.2022 whereby unadjusted amount of Rs.12.12 lacs against certain material and Rs.2,000/- in addition thereto has been ordered to be recovered from the payable gratuity to the respondent no.1-petitioner.
Challenging the said order dated 03.06.2022, the respondent no.1-petitioner instituted Writ-A No.132 of 2023 which has been allowed by the judgment and order under appeal herein.
Submission of the learned counsel for appellant-Corporation is that learned Single Judge has not taken into account the provisions contained in Paragraph 922 of Civil Service Regulations in its true perspective and has ignored the right of the employer to make recoveries from the post retirement dues, especially from the amount of gratuity in case any dues in relation to retired employee remained unadjusted.
On the other hand, learned counsel for respondent no.1-petitioner submits that before passing an order for recovery of the amount from gratuity, no ascertainment of the unadjusted amount was made; neither was the respondent no.1-petitioner or her husband subjected to any kind of inquiry where it could be ascertained that the amount remained unpaid. He has, thus, stated that the special appeal is liable to be dismissed at its threshold.
Having heard learned counsel for parties and perused the records available before us on this special appeal, we are of the considered opinion that the view taken by learned Single Judge while passing the order under appeal before us, does not warrant any interference in this special appeal.
It is not in dispute, rather admitted, that before ordering for recovery from the gratuity amount of the deceased employee, no inquiry whatsoever was held for ascertaining as to whether any dues remained uncleared. In absence of any such inquiry, straightway passing an order for recovery from gratuity amount, in our considered opinion, is impermissible. Further, we may refer to Paragraph 922 (5) of Civil Service Regulations where it has clearly been provided that efforts shall be made to assess and adjust the recoverable dues within a period not exceeding one year from the date of retirement of employee concerned. In the present case husband of the respondent no.1-petitioner died on 07.09.2012 and after about 10 years the order for adjustment/recovery from the gratuity amount has been passed, that too without ascertaining the dues by way of conducting any inquiry.
At this juncture, learned counsel for appellant-Corporation has drawn our attention to a letter dated 20.05.2022 which appears to be an inter departmental correspondence, according to which the officer concerned has been directed to provide dues/no dues certificate in respect of certain employees till 31.05.2022. The said letter contains an appendix wherein against the name of husband of the respondent no.1-petitioner it is recorded that in view of the audit report pertaining to the year 2012-2013, the cost of some material is to be adjusted from the dues of the husband of the respondent no.1-petitioner. Apart from the said letter, there is nothing on record which could depict that the dues, as are being claimed from the respondent no.1-petitioner from the gratuity payable to her husband, has been ordered to be recovered/adjusted on the basis of any kind of inquiry, whatsoever.
It appears that no ascertainment was made by the Corporation about the dues which have been sought to be recovered/adjusted from the gratuity payable to the husband of the respondent no.1-petitioner. It is also worth noticing that the attempt to make the adjustment, admittedly, has been made after ten years from the date of death of husband of respondent no.1-petitioner. Learned Single Judge while allowing the writ petition has clearly given a finding that no inquiry whatsoever was done for ascertaining the unadjusted store materials and accordingly such dues will not fall within the meaning of "ascertainable dues" occurring in Paragraph 922 of Civil Service Regulations. Apart from the said finding, it has also been noticed by learned Single Judge that no inquiry to ascertain the dues was conducted and hence the order passed for adjusting the alleged dues from the gratuity has been quashed.
For the reasons disclosed above, we do not find any good ground to interfere in the order passed by learned Single Judge which is under appeal before us. Accordingly, the special appeal is dismissed.
However, on the prayer made by learned counsel for appellant-Corporation, we waive off the cost to be paid by the appellant as has been imposed by learned Single Judge in his order dated 01.02.2023 considering the current financial constraints being faced by the appellant-Corporation.
There will be no order as to costs.
Order Date :- 1.3.2023
Renu/-
