Allahabad High Court
Asha Gupta vs State Of U.P. Thru. Prin. Secy. ... on 3 March, 2023
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 8
Case :- WRIT - C No. - 1657 of 2023
Petitioner :- Asha Gupta
Respondent :- State Of U.P. Thru. Prin. Secy. Revenue, Lko. And 4 Others
Counsel for Petitioner :- Rahul Roshan Dubey
Counsel for Respondent :- C.S.C.
Hon'ble Abdul Moin,J.
Heard.
Under challenge is the order dated 25.10.2021 passed by the District Magistrate, Sultanpur, a copy of which is Annexure 1 to the writ petition whereby a surcharge amount of Rs. 1,82,104/- has been directed to be recovered from the petitioner in the capacity of being the Panchayat Sachiv (retired) for misuse of government funds.
The sole legal ground raised by learned counsel for the petitioner is that the order of surcharge has been passed by the District Magistrate, Sultanpur under provisions of Section 27 of the Panchayati Raj Act, 1947 (hereinafter referred to as the "Act, 1947") and he is not the Competent Authority to do so. In this regard, the reliance has been placed on an order of this Court in the case of Ram Vilas Vs. Commissioner Devi Patan Mandal Gond and 4 Ors passed in Misc. Single No. 156 of 2008 decided on 14.1.2020, a copy of which has been Annexure 8 to the writ petition.
The contention of the learned counsel for the petitioner is that in the case of Ram Vilas (supra), this Court was of the view that keeping in view the provisions of U.P. Panchayat Raj (Amendment) Rules, 1969 by which Chapter XIII with the heading "Surcharge" was inserted in the U.P. Panchayat Raj Rules, 1947 in exercise of powers under Section 110 by the State Government, whether the District Magistrate would be 'Prescribed Authority' for passing of an order and an interim order was granted. It is contended that after granting an interim order, the writ petition was directed to be placed before Hon'ble the Chief Justice for constitution of a larger bench. He prays that as an interim order has been passed in aforesaid petition as such interim order be granted in the case of the petitioner also. It is also contended that by means of order impugned, the Pradhan had also been imposed with surcharge under the provisions of the Act, 1947 read with Rules.
Claiming parity of the aforesaid orders, it is prayed that the order impugned be stayed.
On the other hand, Dr. Uday Veer Singh, learned Additional Chief Standing Counsel contends that upon reference being made to the Bench of this Court in the case of Ram Vilas (supra), the reference has been answered by Division Bench of this Court vide order dated 17.12.2021 reported in AIR 2022 Alld 61 wherein it has been held that the District Magistrate is the "Prescribed Authority" for imposing surcharge on the Pradhan, Up-Pradhan and Members under Section 27(2) of the Act, 1947.
Accordingly, considering the reference order passed by the Division Bench of this Court in the case of Ram Vilas (supra), it is apparent that the District Magistrate is fully competent to pass an order of surcharge in the capacity of being the "Prescribed Authority". Thus, no cognizance can be taken of the order passed by the Single Judge of this Court in the case of Ram Vilas (supra) wherein the issue stands concluded now keeping in view the Division Bench judgement.
Though as already indicated above, the learned counsel for the petitioner has only argued the petition on the sole ground as already indicated above yet a perusal of the record of the petition would indicate that the reliance has also been placed on the Supreme Court judgment of Shyam Babu Verma and Others Vs. Union of India and Others reported in (1994) 2 SCC 521, a copy of which is Annexure 12 to the petition to contend that as the petitioner is a government employee and has retired consequently keeping in view the judgment of Apex Court in the case of Shyam Babu Verma (supra) no recovery proceedings can be initiated against a retired employee.
The aforesaid argument though attractive on the face of record is patently fallacious inasmuch as the judgement of Shyam Babu Verma (supra) pertains to certain over-payments on account of higher pay scale having been made to a government employee during his service career which were sought to be recovered after his retirement. The Apex Court was of the view that as no misrepresentation or fraud has been played by the employee concerned which had resulted in the higher fixation as such the excess amount cannot be recovered subsequent to his retirement.
In the instant case it is not the case that certain over-payments were made to the petitioner during her service career which has resulted in an order of recovery being passed rather the amount sought to be recovered is based on a specific inquiry wherein the petitioner has been found involved in the misuse of government funds. Thus the aforesaid judgment would be of no avail to the petitioner.
Keeping in view of the aforesaid discussion, no case for interference is made out. Accordingly, the writ petition is dismissed.
Order Date :- 3.3.2023
Mohit Singh/-
