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2004 DIGILAW 653 (ALL)

Pati Ram v. State of U. P.

2004-03-23

ANJANI KUMAR

body2004
JUDGMENT Anjani Kumar, J.—Petitioner, by means of present writ petition under Article 226 of the Constitution of India, has challenged the order dated 23rd August, 2002, passed by the respondent No. 4, a copy whereof is annexed as Annexure-21 to the writ petition whereby the respondent No. 4 has deducted an amount of Rs. 1,72,779.50. 2. Learned counsel for the petitioner has filed an application for amendment wherein he has sought for to add para No. 26A and ground No. V, which are reproduced below : “26A. That an amount of Rs. 1,72,779.50 was recovered by respondent No. 3 at the advice of respondent Nos. 2 and 4 from the pension, gratuity, rashikaran, etc., due to the petitioner after retirement without any notice or information to the petitioner which is just contrary to the natural justice and Constitution of India.” “V. Because the recovery of an amount of Rs. 1,72,779.50 from the pension and gratuity, etc. due to the petitioner was made without any notice and information by respondents illegally and unlawfully and liable to be quashed and undone.” 3. The facts leading to the filing of present writ petition are that the petitioner, who was working with the Collector, Mainpuri, was informed that he will be retired on attaining the age of superannuation on 30th June, 1993. This order was passed on 30th June, 1993, itself. The petitioner had challenged the aforesaid order by means of Writ Petition No. Nil of 1993 before this Court in which this Court was pleased to grant, the following interim order on 7th July, 1993 : “Issue notice. Until further order of this Court, operation of the impugned order dated 30th June, 1993, shall remain stayed.” 4. The petitioner communicated the aforesaid order passed by this Court before the authority concerned, pursuant to which, according to the petitioner, he was allowed to work on his post from where he was superannuated on 30th June, 1993. The aforesaid Writ Petition No. Nil of 1993 (subsequently numbered as Writ Petition No. 23191 of 1993) came up for hearing before this Court and was dismissed vide its judgment and order dated 14th October, 1997. The aforesaid Writ Petition No. Nil of 1993 (subsequently numbered as Writ Petition No. 23191 of 1993) came up for hearing before this Court and was dismissed vide its judgment and order dated 14th October, 1997. Against the judgment and order dated 14th October, 1997, petitioner filed Special Appeal No. 977 of 1997, which was also dismissed by the Division Bench of this Court vide its judgment and order dated 15th May, 2000 and the judgment of learned single Judge was affirmed by Division Bench of this Court. Petitioner thereafter preferred a special leave petition before Hon’ble Supreme Court, which too was dismissed by Hon’ble Supreme Court vide order dated 27th September, 2000. The judgment of learned single Judge, which was passed after exchange of counter and rejoinder affidavits, learned single Judge has recorded findings in the following words : “On consideration of all the materials, I find that original entry was 10.6.1935. While making interpolation the entire entry in words could not be altered to make it 6.7.1939 and only alteration made was in respect of the year. This also explains the discrepancy as to why entry in service records was not tallying with other records produced by the petitioner in support of his claim. Categorical contention of the respondents that the petitioner played fraud and deliberately entered his date of birth in the High School Examination form as 6.7.1939, have not been even denied in the rejoinder-affidavit. In view of the materials available, the case of the respondents is acceptable. Learned counsel for the petitioner contends that the petitioner has rendered services for subsequent period by virtue of an interim order of this Court and as such no recovery should be made with regard to the salary paid to the petitioner for the said period. In the facts of the present case, it appears that the petitioner obtained said relief from this Court suppressing the relevant facts, which have subsequently been disclosed in the counter-affidavit and as such the writ petitioner obtained relief by way of interim order on suppression of material facts. Therefore, the petitioner is not entitled to any relief to the aforesaid extent in particular facts of the present case. Accordingly, this writ petition fails and the same is hereby dismissed. There will be no order as to costs.” 5. Therefore, the petitioner is not entitled to any relief to the aforesaid extent in particular facts of the present case. Accordingly, this writ petition fails and the same is hereby dismissed. There will be no order as to costs.” 5. In this view of the matter, when the petitioner challenged the order of learned single Judge by means of special appeal, the judgment of the learned single Judge was upheld by the Division Bench of this Court and the special leave petition filed by the petitioner before the Hon’ble Supreme Court against the judgment passed in special appeal, was dismissed in limine. 6. Learned counsel for the petitioner argued that the order impugned in the present writ petition for the recovery of the amount of Rs. 1,72,779.50 has been passed without affording opportunity of hearing to the petitioner. 7. The order impugned in the writ petition for the recovery of the amount of Rs. 1,72,779.50 is firstly a consequential order and even if it is presumed to have been passed without affording opportunity of hearing, cannot be said to be vitiated by error of law in view of the findings of the learned single Judge that the petitioner is not entitled to get relief of staying the recovery from him with regard to salary paid to him for rendering services for subsequent period by virtue of an interim order of this Court, which has been due to pendency of writ petition and special appeal which was ultimately dismissed by the Division Bench of this Court, as stated above. In this writ petition, petitioner is challenging only consequential order, which was passed pursuant to the order of this Court, as stated above. 8. In this view of the matter, the contention of learned counsel for the petitioner that since the petitioner has worked under the interim order of this Court, the salary paid to him cannot be recovered from him, cannot be accepted because of the finding of the learned single Judge that he has obtained interim order by suppression of material facts and by interpolation in service record. 9. In this view of the matter, this writ petition has no force and is accordingly dismissed being devoid of merit. The interim order, if any, stands vacated.