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2008 DIGILAW 1280 (ALL)

PRASHANT RAJAN SINGH v. STATE OF UTTAR PRADESH

2008-07-09

S.P.MEHROTRA

body2008
JUDGMENT Hon’ble S.P. Mehrotra, J.—The present writ petition has been filed under Article 226 of the Constitution of India, inter alia, praying for quashing the order dated 6.2.2002 passed by the District Agriculture Raksha Adhikari, Ballia (respondent No. 3). 2. The counter-affidavit and the rejoinder affidavit have been exchanged, and the writ petition is being disposed of finally with the consent of the learned Counsel for the parties. 3. From a perusal of the averments made in the writ petition, as also in the counter affidavit and the rejoinder affidavit, the relevant facts, as noted hereinafter, emerge. 4. Awadhesh Singh, father of the petitioner was working on the post of senior clerk in the office of the respondent No. 3. The said Awadhesh Singh (father of the petitioner) expired on 9-9-2000 while he was in service. After the death of the said Awadhesh Singh, the petitioner was appointed as junior clerk on 13.11.2000 on compassionate grounds. 5. It appears that consequent upon the death of the said Awadhesh Singh, payment of the gratuity payable in respect of the said Awadhesh Singh was claimed by the petitioner 90% of the gratuity amount payable in respect of the said Awadhesh Singh, amounting to Rs. 2,15,000.00, was paid to the petitioner. However, 10% of the gratuity payable in respect of the said Awadhesh Singh was withheld by the respondents. 6. In the circumstances, the petitioner made representation dated 30.1.2002 before the respondent No. 3 wherupon the respondent No. 3 passed an order dated 6.2.2002, copy whereof has been filed as Annexure 2 to the writ petition. It is stated in the said order dated 6.2.2002 passed by the respondent No. 3, that the District Agriculture Officer, Basti (Respondent No. 4) by the letter dated 29.8.2001 had intimated that the amount of Rs. 21,416.00 was to be recovered from the said Awadhesh Singh, but the petitioner had not deposited the said amount. The said order dated 6.2.2002 further directed the petitioner to deposit the said amount of Rs. 21,416.00 as required by the District Agriculture Officer, Basti. 7. Copy of the letter dated 29.8.2001 of the District Agriculture Officer, Basti, referred to in the above order dated 6.2.2002, has been filed as Annexure 3 to the writ petition as well as Annexure No. CA-2 to the counter-affidavit filed on behalf of the respondents. 21,416.00 as required by the District Agriculture Officer, Basti. 7. Copy of the letter dated 29.8.2001 of the District Agriculture Officer, Basti, referred to in the above order dated 6.2.2002, has been filed as Annexure 3 to the writ petition as well as Annexure No. CA-2 to the counter-affidavit filed on behalf of the respondents. It is, inter alia, stated in the said letter dated 29.8.2001 that the said Awadhesh Singh was having charge of the Office Store and after the death of said Awadhesh Singh, certain items in the Office Store were found to be deficient and accordingly Rs. 21,416.00 was payable in respect of the said deficiency. A list of the items allegedly found deficient has also been annexed as part of Annexure CA-2 to the counter affidavit. It further appears that in view of the said order dated 6.2.2002, the petitioner made representations before the respondent No. 3 against the alleged recovery of Rs. 21,416.00 sought to be recovered in respect of the alleged deficient items in the Office Store after the death of the said Awadhesh Singh. Copy of the last representation dated 9.2.2005 has been filed as Annexure 4 to the writ petition. As nothing was done on the representation of the petitioner, the petitioner has filed the present writ petition. 8. I have heard Sri Arvind Kumar Srivastava, learned Counsel for the petitioner and the learned Standing Counsel appearing for the respondents, and perused the record. 9. Sri Arvind Kumar Srivastava, learned Counsel for the petitioner submits that no show-cause notice was issued to the said Awadhesh Singh (father of the petitioner) during his life-time and it is only after the death of the said Awadhesh Singh that the respondents have alleged that there was deficiency in the items in the Office Store to the tune of Rs. 21,416.00. It is submitted that in view of the provisions of the Government Order dated 28.7.1989 (Annexure 6 to the writ petition), the said amount cannot be recovered from the gratuity payable in respect of the said Awadhesh Singh after his death as no show-cause notice was issued to the said Awadhesh Singh during his life-time in regard to the alleged deficiency in the items in the Office Store, under the charge of the said Awadhesh Singh. Sri Srivastava submits that it is only in respect of the advances such as for house, motor-car, motor-cycle etc. Sri Srivastava submits that it is only in respect of the advances such as for house, motor-car, motor-cycle etc. that the recovery can be made from the gratuity payable in respect of a deceased employee. 10. In reply, the learned Standing Counsel submits that the deficiency in the items in the Office Store was discovered after the death of the said Awadhesh Singh, and the amount of Rs. 21,416.00 in respect of such deficiency may be recovered from the gratuity payable in respect of the said Awadhesh Singh. It has, however, not been disputed by the learned Standing Counsel that no show-cause notice was issued to the said Awadhesh Singh in regard to the alleged deficiency in the items in the Office Store during the life-time of the said Awadhesh Singh and it is only after the death of the said Awadhesh Singh that the deficiency in the items in the Office Store was discovered, and thereupon, a recovery of Rs. 21,416.00 was sought to be made from the gratuity payable in respect of the said Awadhesh Singh. 11. The Government Order dated 28.7.1989 has been issued for simplifying the procedure for the payment of superannuation pension, family pension, death/retirement gratuity and commutation amount in order to avoid delay in payment of the said amounts. The said Government Order, as noted above, has been filed as Annexure No. 6 to the writ petition. 12. Clause (5) 2 (Kha) (3) of the said Government Order (occurring at page 36 of the paper-book of the writ petition), inter alia, provides that in case any departmental/judicial enquiry is going on against a Government servant, on the date of his retirement, he will be paid provisional pension but the entire amount of gratuity will be withheld till the result of the enquiry is not received. However, clause (5)2 (Kha)(5) of the said Government Order (occurring at page 36 of the paper-book of the writ petition) provides that in case of the death of the concerned Government servant, such departmental/judicial enquiry would be deemed to have abated as the concerned Government employee would not be able to place his version and the ex parte proceeding would not be justified from the legal point of view. Clause (5) 2 (kha) (10) of the said Government Order (occurring at page 38 of the paper-book of the writ petition), inter alia, provides that in case an employee dies while in service, the entire family pension would be released immediately and excepting for the amounts which are compulsorily recoverable from the death-gratuity such as advances in respect of the house, motor-car, motor-cycle etc., the remaining death-gratuity would also be immediately released. However, in case, before the death of the concerned Government employee, departmental proceedings have been concluded or he has been given opportunity to present his version after giving show-cause notice, the amounts sought to be recovered consequent to such proceedings may also be recovered from the death-gratuity. Clause (8)2 of the said Government Order (occurring at page 41 of the paper-book of the writ petition), makes similar provisions as are contained in Clause (5)2 (kha) (10) of the said Government Order. 13. It is, thus evident that out of the amounts of gratuity payable in respect of the Government servant who has died while in service, only the following amounts can be recovered : (1) Such advances which are compulsorily recoverable from the death-gratuity such as advances in respect of house, motor-car, motor-cycle etc. (2) In case the departmental proceedings against the concerned Government servant have been concluded in his life-time or he was given opportunity to place his version after giving show-cause notice during his life-time, and certain amount is recoverable as consequence of such proceedings. After deducting the amounts, if any, payable in respect of the aforesaid two items, the remaining gratuity must be paid. 14. In the present case, no advances made to the said Awadhesh Singh are being sought to be recovered from the gratuity payable in respect of the said Awadhesh Singh after his death. What is being sought to be recovered here is the amount in respect of the alleged deficiency in the items in the Office Store. It has not been disputed that no departmental proceedings were taken in the life-time of the said Awadhesh Singh nor was any show-cause notice given to the said Awadhesh Singh during his life-time in respect of the alleged deficiency in the items in the Office Store. It has not been disputed that no departmental proceedings were taken in the life-time of the said Awadhesh Singh nor was any show-cause notice given to the said Awadhesh Singh during his life-time in respect of the alleged deficiency in the items in the Office Store. It is only after the death of the said Awadhesh Singh that the alleged deficiency in the items in the Office Store was discovered and the recovery has been sought to be made from the gratuity payable in respect of the said Awadhesh Singh. 15. Such recovery cannot evidently be made in view of the provisions of the aforesaid Government Order dated 28.7.1989. The learned Standing Counsel has not placed any rule or Government Order containing any contrary provision to that contained in the said Government Order dated 28.7.1989. 16. It is relevant to note that sub-section (6) of Section 4 of the Payment of Gratuity Act, 1972 deals with the forfeiture of gratuity. The said sub-section (6) is quoted below : “4. Payment of Gratuity.—(1) to (5)................. (6) Notwithstanding anything contained in sub-section (1),— (a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused; (b) the gratuity payable to an employee [may be wholly or partially forfeited]— (i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or (ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.” 17. Sub-section (6) of Section 4 of the Payment of Gratuity Act, 1972, thus, provides for forfeiture of gratuity to the extent mentioned in the said provision in case the services of an employee have been terminated on account of the circumstances mentioned in the said provision. The said provision is, therefore, not applicable in the present case where the employee (father of the petitioner) died while in service, and the alleged deficiency in the items in the Office Store was discovered after the death of such employee. 18. The said provision is, therefore, not applicable in the present case where the employee (father of the petitioner) died while in service, and the alleged deficiency in the items in the Office Store was discovered after the death of such employee. 18. As regards Article 351-A of the Civil Services Regulations, the same is as follows : “351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement : Provided that— (a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment— (i) shall not be instituted save with the sanction of the Governor, (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. (b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of Clause (a); and (c) the Public Service Commission, U.P., shall be consulted before final orders are passed : [Provided further that if the order passed by the Governor relates to a cash dealt with under the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission]. Explanation.—For the purposes of this article— (a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted : (i) in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal Court; and (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to a Civil Court. Note—As soon as proceedings of the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned.” 19. The above provision, thus, deals with the right of the Governor to withhold or withdraw a pension or part of it and to order the recovery from a pension of the whole or part of any pecuniary loss caused to the Government in the circumstances mentioned in the above provision. The above provision does not apply in the case of recovery from gratuity, and as such, the same is not relevant in the present case. 20. Under the circumstances, I am of the opinion that the recovery of Rs. 21,416.00 sought to be made in respect of the alleged deficiency in the items in the Office Store from the amount of gratuity payable in respect of the deceased Awadhesh Singh is against the provisions of the said Government Order dated 28.7.1989 and the said recovery cannot be made from the gratuity payable in respect of the deceased Awadhesh Singh. 21. The order dated 6.2.2002 is evidently illegal being contrary to the provisions of the Government Order dated 28.7.1989. 22. In view of the above, the writ petition deserves to be allowed, and the order dated 6.2.2002 is liable to be quashed. 23. Accordingly, the writ petition is allowed and the order dated 6.2.2002 (Annexure 2 to the writ petition) is quashed. 22. In view of the above, the writ petition deserves to be allowed, and the order dated 6.2.2002 is liable to be quashed. 23. Accordingly, the writ petition is allowed and the order dated 6.2.2002 (Annexure 2 to the writ petition) is quashed. The respondent No. 3 is directed to release the balance 10% of the gratuity payable in respect of the said Awadhesh Singh alongwith interest payable at the rate prescribed in the relevant rules and the orders, within three months of the production of certified copy of this order before the respondent No. 3. However, in the facts and circumstances of the case, there will be no order as to costs. ————