Rajendra Prasad Dwivedi vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 14794 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Neutral Citation No. - 2023:AHC-LKO:32771
 
Court No. - 17
 

 
Case :- WRIT - A No. - 715 of 2023
 

 
Petitioner :- Rajendra Prasad Dwivedi
 
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Housing And Urban Planning, Lko. And Another
 
Counsel for Petitioner :- In Person
 
Counsel for Respondent :- C.S.C.,Ram Raj
 

 
Hon'ble Pankaj Bhatia,J.

1. Heard Sri Deep Chatarjee for the petitioner who has argued the matter on the request made by this Court, the petitioner in person and Sri Rishab Raj holding brief of Sri Ram Raj the counsel for the respondent no.2.

2. The present petition has been filed by the petitioner stating that the petitioner was appointed as a Junior Engineer on 24.02.1987 and was subsequently transferred and ultimately retired on 31.07.2022 from the Banda Development Authority, Banda. His services are governed by the U.P. Development Authorities Centralized Services Rules, 1985. It is claimed that after the retirement of the petitioner, certain unauthorized deductions were made from the retiral dues of the petitioner amounting to Rs.11,83,141/- allegedly on account of excess payment of salary from January 1996 to 31.07.2022. He argues that the said deductions are arbitrary and illegal and further argues that no opportunity of hearing was granted prior to passing of the said order.

3. Apart from the challenge to the alleged illegal recoveries made from the retirement dues, the submission of the petitioner is that the medical bills, as submitted by the petitioner have not been cleared despite the fact that the petitioner is entitled to the said medical reimbursement by virtue of the respondent no.2 having adopted the medical benefit rules as framed by the State Government. The petitioner also raises a grievance with regard to the amount payable under the Group Insurance Scheme. The further grievance of the petitioner is that the amounts with regard commutation of pension have not been cleared, as such, the present writ petition has been filed.

4. The counsel for the petitioner argues that after the retirement of the petitioner, the deductions made on account of alleged excess payment of the salary is wholly arbitrary and illegal inasmuch as there is no averment that the petitioner was in any way responsible for the alleged excess payment of salary. He further argues that the same is also arbitrary and illegal in view of the law laid down by the Hon'ble Supreme Court in the case of the State of Punjab and others Vs. Rafiq Masih (White Washer) reported at (2015) 4 SCC 334.

5. As regards the facts recorded in the order dated 01.08.2022 (Annexure no.2), he argues that the reference of any enquiry pending at Varanasi Development Authority is incorrect inasmuch as the petitioner has never been served with a charge-sheet till date, although the petitioner was serving with the Varanasi Development Authority from 10.10.2014 to 22.06.2018. He argues that as the charge-sheet has never been served, the same can now not even be served in view of the bar created under Regulation 351-A of the CSR, which prohibits the issuance of charge-sheet after four years.

6. The respondents have filed their counter affidavit in which, a stand has been taken that excess amount of salary was paid to the petitioner and that is sought to be recovered. The further stand of the respondents is that the petitioner himself has executed an affidavit on 18.07.2022 undertaking to abide by the decision and agreeing to the deductions made from the retiral dues of the petitioner. A further stand has been taken that an information was given by the Varanasi Development Authority through Annexure no.CA-4 on 07.05.2022 that in view of the sanction given by the State Government on 06.12.2017, the proceedings are pending against the petitioner.

7. In the counter affidavit, it has been admitted that with regard to the medical dues, the rules applicable to the government servants have been adopted by the respondent no.2.

8. In sum and substance, the stand taken by the respondents in the counter affidavit is that in view of the affidavit submitted by the petitioner himself, he is estopped from approaching this court for the reliefs as claimed in the present writ petition. It is further argued that the excess payment of salary was paid in view of the option exercised by the petitioner of retiring at 58 years, however, the petitioner actually continued to serve till 60 years of age and thus, the excess amounts paid were liable to be recovered from the dues.

9. Considering the submissions made at the bar, this court is to decide the following issues :

(i) as to whether the deductions of Rs.11,83,141/- made on account of alleged excess payment of salary is justified or not ?

(ii). whether the denial of medical benefits to the petitioner by the respondents is justified or not ? and

(iii) whether the petitioner is entitled to the reliefs of commutation of pension as claimed by him or not ?

10. The issue with regard to the claim of GIS amount has been admitted by the respondents, as such, the same is no more an issue to be decided by this court.

11. Considering the issue no.1, it is well settled by the Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) reported at (2015) 4 SCC 334 that deductions on account of alleged payment of excess salary of five years before the order of recovery is issued, is bad in law. It is argued that the judgment of the Supreme Court in the case of Rafiq Masih (supra) has been reiterated in a subsequent judgment of the Supreme Court in the case of Thomas Daniel vs. State of Kerala and others; 2022 SCC Online SC 536 wherein the deductions on account of salary after retirement were repelled unless the same are paid on account of misrepresentation or fraud. Considering the fact that the petitioner had retired on 31.07.2022, the recoveries of the alleged excess payment from the year 1996 up to the year 2022 are without any basis whatsoever and are also contrary to the law laid down in the cases of Rafiq Masih (supra) and Thomas Daniel (supra).

12. The argument of the counsel for the respondents that the petitioner opted to retire at the age of 58 years but continued to serve till 60 years, which is a foundation for seeking to recover the excess amount is also not worthy of acceptance as there is nothing on record to demonstrate that the petitioner continue to work against the will of the respondents till the age of 60 years. Furthermore, even as per the allegations contained in the counter affidavit, no charge-sheet has been issued to the petitioner with regard to the alleged infractions while the petitioner was serving at Varanasi Development Authority. Thus, the reasons recorded for withholding the payment are wholly unjustified and are liable to be set aside.

13. Accordingly, with regard to issue no.1, the writ petition deserves to be allowed. The respondents are directed to pay the amount of Rs.11,83,141/-, arbitrarily withheld, along with interest @8% per annum from the date when the petitioner retired till actual payment/realization.

14. It is essential to deal with the contention of the counsel for the respondents that the petitioner had agreed by filing an affidavit, to the deductions, the said affidavit is neither contemplated under the Rules nor is it provided in any of the Rules which are applicable to the petitioner. In fact the Centralized Service Rules prescribed for an affidavit with regard to excess payment of gratuity, pension etc. and there is no provision in the rules with regard to the alleged excess payment of salary. Thus, the affidavit, was neither required to be filed and it appears that the respondent no.2, owing to its dominant position asked the petitioner to file the affidavit, which the petitioner has filed. In any case, an agreement cannot bypass the statutory duty cast for payment of service benefits, as such, on that count also, the defense on foundation of affidavit is liable to be rejected. The deductions of 10% as indicated in Annexure no.2 and as supported by affidavit is wholly without jurisdiction and has no sanction of law, as such, the said amount is also liable to be paid to the petitioner.

15. The second issue with regard to payment of medical bills, it is clear from the records that the benefits which were accorded by the State Government to their employees were adopted by the respondent no.2 on 18.11.2015, thus, there is no reason why the respondents will not pay the medical reimbursement allowance which have been duly verified by the CMO and are pending before the respondent no.1. Thus, with regard to the issue no.2, the writ petition deserves to be allowed. The respondent no.1 is directed to forthwith pay the medical expenses, duly verified by the CMO and pending before the respondent no.1 within a period of four weeks from today. In case the amounts are not paid within four weeks from today, the petitioner would be entitled to interest @8% per annum from the date of submission of the bills till actual payment / realization.

16. The third issue with regard to commutation of pension, there appears to be no dispute in the counter affidavit with regard to the entitlement of the petitioner for commutation of pension, as such, the writ petition with regard to the amounts on account of commutation of pension is also liable to be allowed. The benefits of commutation of pension shall be computed and paid by the respondent no.1 in accordance with law within a period of four weeks from today.

17. It has also been observed that the amount of GIS shall also be paid to the petitioner by the respondents for which there is no dispute, as such, on all counts, the writ petition deserves to be allowed.

18. The petitioner shall also be paid is travelling allowance and dearness allowance to which the petitioner is entitled in terms of the services rendered by the petitioner, which claim appears to be pending before the respondent no.1. The respondent no.1 shall pay the said amount also.

19. As the respondents have taken an unseasoned stand and a poor retired person had to approach this court, the petitioner is entitled to a cost of Rs.15000/-, which shall be paid by the respondent no.1 along with dues as directed above.

20. This court records its appreciation for Sri Deep Chatarjee for rendering his valuable assistance to this Court.

21. With the said observations, the writ petition stands allowed.

Order Date :- 11.5.2023

VNP/-

[ Pankaj Bhatia, J. ]