Uttarakhand High Court
Girish Chandra vs Employees State Insurance ... on 21 September, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 1957 of 2021
Girish Chandra .......Petitioner
Vs.
Employees State Insurance Corporation & another .....Respondents
Mr. Vinod Nautiyal, Advocate, for the petitioner.
Mr. C.K. Sharma, Advocate, for the respondents.
Hon'ble Sharad Kumar Sharma, J (Oral)
The Branch Manager of the State Insurance Corporation
had earlier passed an order being Order No.61-BO-
DDN/Misc/2017/744, dated 26.07.2017, whereby the amount which
was paid to the petitioner by way of the pensionary benefits, was
sought to be recovered from the petitioner, on the ground that an
excess payment was determined and was paid, because of the
wrongful determination of the pensionary benefits, which the
petitioner was otherwise not entitled to receive. According to the
respondents, the petitioner was entitled to receive the amount at the
rate of Rs.31.76/- per day, and the grant of the same at the rate of
Rs.202.44/- per day was wrongly determined.
2. This order was put to challenge, by the petitioner in the
earlier writ petition, being WPMS No.3543 of 2018. This Court while
considering the writ petition on its own merit, and based on the
principle which has been laid down by the judgment reported in 1998
(1) ACJ 596, Ram Khelwan Pathak Vs. State of U.P. and others",
had quashed the recovery/demand, which was issued by the
respondent on 26.07.2017, on the ground that since the petitioner was
not instrumental in the wrongful determination of the pensionary
benefits, which was voluntarily extended to her by the respondents, at
the rate of Rs.202.44/- per day, the amount which was already
remitted for the period given, therein, in the order of 26.07.2017,
cannot be recovered. Hence, the writ petition was allowed by the
judgment of 14.01.2021.
3. The petitioner has preferred the present writ petition
praying for the following reliefs:-
"(i) Issue a writ, order or direction in the nature of
mandamus, commanding/directing the respondents to pay
employees State Insurance pension to the petitioner from
Nevermore, 2015 till date @ 202.44 per day under
Employees State Insurance Corporation Act, 1948.
(ii) Issue any other suitable writ, order or direction
of any nature in favour of petitioner, which this Hon'ble
Court may deem fit and proper in the present
circumstances of the case."
4. It is not in controversy, and which has further been
strengthen during the course of the argument, that the stoppage of
payment of pensionary benefits claimed at the rate of Rs.202.44/- per
day under the Employees State Insurance Act, 1948, was discontinued
to be made payable to the petitioner right from the stage when the
impugned order of recovery dated 26.07.2017, was passed, and was
under challenge in the earlier writ petition.
5. In fact, if the stoppage of the payment of pension @
202.44/-, was made even at the time, when the initial order was passed
on 26.07.2017, which was the subject matter of challenge in the writ
petition, preferred by the petitioner earlier. In that eventuality, after
the adjudication of the writ petition on its own merit, the filing of the
fresh writ petition for a writ of mandamus with a direction to the
respondents to pay the pension at the rate of Rs.202.44/- per day,
would not be sustainable, and it cannot be granted by the writ court
for the reason being, that there would be a bar created under sub-
clause (2) of Rule (2) of Order 2 of the CPC, which has been
principally made applicable over the proceedings of the writ courts.
6. Since at that point of time, when initial order was passed
on 26.07.2017, and when the same was put to challenge, it was at that
relevant point of time, the petitioner ought to have made the prayer,
which has been sought for now in the present writ petition. Having not
done so, the implications of relinquishment of part of the claim, as
contemplated under sub-clause (2) of Order 2 Rule 2 of the CPC,
would come into play. In that eventuality, the law since contemplates,
that thereafter he cannot sue for the grant of the same relief, which he
has already waived off to be pressed at the relevant point of time in
the earlier phase of litigation, this writ petition would not be tenable.
Hence, the writ petition is accordingly dismissed.
(Sharad Kumar Sharma, J.)
21.09.2021
NR/
