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2009 DIGILAW 1525 (ALL)

GEETA DEVI v. STATE OF U. P.

2009-04-20

RAKESH SHARMA

body2009
JUDGMENT Hon’ble Rakesh Sharma, J.—Heard learned counsel for the petitioner and learned Standing Counsel representing respondents No. 1 to 5. 2. The petitioner, a widow of erstwhile Cane Development Inspector at the relevant time working at Azamgarh has approached this Court seeking post retiral benefits admissible to her husband late Sri Ganga Dhar Singh and assailing the recovery proceeding initiated against the retired employee. 3. It emerges from the record that the petitioner’s husband Sri Ganga Dhar was working as Cane Development Inspector. A departmental enquiry was initiated against him which had resulted in awarding of minor penalty. The order imposing penalty issued by the Cane Development Commissioner on 27.9.1991 was challenged by filing writ petition No. 1675 of 1992, Ganga Dhar Singh v. Cane Commissioner, U.P. and others. This Court has been pleased to pass an interim order staying the recovery from the salary of the petitioner vide interim order dated 15.4.1992. This order is still operative. 4. The petitioner’s husband had retired on attaining the age of superannuation on 31.1.2001. Immediately after the retirement, the provisional pension was sanctioned and part of post retiral benefits under various heads were released. Pay fixation of the petitioner’s husband was also carried out and an order was passed by the District Cane Officer on 4.4.2002. While pursuing the authorities to settle the pension and other benefits, the petitioner’s husband Ganga Dhar Singh had died on 29.7.2006. 5. While the petitioner’s husband was pursuing his remedies, the District Cane Officer, Azamgarh has passed an order on 3.8.2006 for carrying out certain recoveries from the post retiral benefits admissible to the petitioner. According to the District Cane Officer, due to wrong fixation of pay, allowing additional selection grade and other administrative exercise, the petitioner’s husband was paid much higher salary than was required. In addition to this, it was reiterated in this order that an amount of Rs. 63,432.21p. was also recoverable from the petitioner in furtherance of the earlier order dated 27.9.1991 (operation of which had already been stayed by this Court and interim order is in vogue). 6. It is not clear from the counter-affidavit and other documents as to whether any enquiry under Section 351-A of Civil Services Regulations was conducted or concluded against the petitioner’s husband. 6. It is not clear from the counter-affidavit and other documents as to whether any enquiry under Section 351-A of Civil Services Regulations was conducted or concluded against the petitioner’s husband. There is nothing on record to show whether any enquiry under U.P. Retirement Benefit Rules was conducted against the petitioner for making recovery from gratuity against the petitioner’s husband. Under these provisions, the State Government alone or Head of the Department is empowered to order for making recovery of the post retiral benefits admissible to a Government servant. No such order has been passed by the State Government or the Cane Commissioner, U.P. ordering recovery from the post retirement benefits of the petitioner’s husband Sri Ganga Dhar as provided in Rule 351-A of U.P. Civil Services Regulations. 7. Here is a case where after 16 years of event of pay fixation and retirement of a Government servant, it has been found that some payment in excess was made to him. There was mistake in pay fixation. Late Sri Ganga Dhar Singh had already received payment and spent out the same on his family. He had not only retired on 31.1.2001 but died on 29.7.2006. Can his widow and deceased Government servant family suffer after the death of the employee due to wrong fixation of pay due to clerical and arithmetical or administrative mistake. The petitioner is a widow who has to maintain herself, family and has to marry one daughter, the respondents are now making endeavour to recover several monetary claims from the assets of the deceased employee late Sri Ganga Dhar’s family. Being compelled by these circumstances, the petitioner has approached this Court by filing a writ petition under Article 226 of the Constitution of India. 8. I have heard the learned counsel for the parties and perused the record. It emerges from the documents placed by the contesting parties that the petitioner’s husband’s pay was wrongly fixed in new pay scale on 1.1.1996, that is, about 15 years before his retirement date. Two increments were wrongly fixed during the period from 1987 to 1995. Two selection grades were allowed due to mistake. It emerges from the documents placed by the contesting parties that the petitioner’s husband’s pay was wrongly fixed in new pay scale on 1.1.1996, that is, about 15 years before his retirement date. Two increments were wrongly fixed during the period from 1987 to 1995. Two selection grades were allowed due to mistake. It is interesting to note that the District Cane Officer, Azamgarh has mentioned that then Cane Officer had verified the service book and approved the orders relating to pay fixation and other orders by which the higher grades in higher pay scale were allowed to the petitioner’s husband. There is nothing on record to substantiate that the petitioner’s husband late Ganga Dhar Singh had committed any fraud or made any manipulation in the service record. No such objections were ever raised till the employee retired. The Court has also taken note that when the petitioner’s husband late Ganga Dhar Singh had written a letter on 8.5.2005 allowing him some other benefits indicating that the date of pay fixation was to be pre-poned and in reaction to this the whole exercise of reopening old issues started and recovery orders were issued to save the skin of concerned authorities. The implementation of the impugned orders may result in recovery from the assets of the petitioner’s widow’s family members. How can she be permitted to suffer for the mistake of officers dealing with the employees Establishment in the Cane Department. The amounts were paid to the petitioner’s husband without any misrepresentation or fraud played by him. Moreover before ordering recovery, no opportunity of hearing was afforded to the petitioner’s husband nor the widow. The principles of natural justice have been violated. The order of recovery from the assets of a deceased employee or a retired employee or his family have been issued by the District Cane Officer. Under the relevant provisions contained in the Civil Services Regulations only the State Government or Head of the Department under delegated powers is empowered to sanction the pension, order for recovery from the pension retiral benefits. The District Cane Officer was not competent to order for recovery for the retiral dues. 9. Under the relevant provisions contained in the Civil Services Regulations only the State Government or Head of the Department under delegated powers is empowered to sanction the pension, order for recovery from the pension retiral benefits. The District Cane Officer was not competent to order for recovery for the retiral dues. 9. I have perused the cases cited by the learned counsel for the petitioner to strengthen his case : (1) State of Orissa and others v. Adwait Charan Mohanty and others, 1995 Suppl (1) SCC 470; (2) Nand Kishore Sharma and others v. State of Bihar and others, 1995 Suppl (3) SCC 722; (3) State of Karnataka and another v. Mangalore University Non Teaching Employees and others, (2002) 3 SCC 302 ; (4) Union of India v. Sita Ram Deer, 1995 SCC (L&S) 522; (5) Nand Kishore Sharma v. State of Haryana, 1996 SCC (L&S) 124; and (6) Sahib Ram v. State of Haryana and others, 1995 Suppl (1) SCC 18. 10. The case of the petitioner is squarely covered by the aforementioned judgments. A widow of a Government Servant cannot be permitted to suffer in this manner. The writ petition is allowed. The order dated 12.4.2005 issued by the District Cane Officer and other consequential orders are quashed. It is held that no recovery proceeding can be initiated against the petitioner or against the assets of the wife of a deceased employee, that is, late Sri Ganga Dhar Singh, the then Cane Development Inspector, Azamgarh. The respondents are directed to calculate the entire post retirement benefits admissible to late Sri Ganga Dhar Singh and release the payment in favour of his wife, legal heirs of late Sri Ganga Dhar Singh or the nominee as per service record. The authorities shall not delay the payment as the employee had retired on 31.1.2001, 8 years ago. This exercise shall be completed within two months from the date of presentation of certified copy of the order passed by this Court. The amount, if any, already paid shall be accordingly adjusted. ————