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2009 DIGILAW 27 (ALL)

AMOD PRASAD RAI v. STATE OF U P

2009-01-07

RAJIV SHARMA

body2009
RAJIV SHARMA, J. ( 1 ) HEARD Sri N. N. Jaiswal, learned counsel for the petitioner and Sri Sanjay Sarin, learned standing counsel. Through the instant writ petition, the petitioner is assailing the order of punishment dated April 2, 2007 passed by the opposite party no. 3 as contained in Annexure 5 to the writ petition as well as inquiry report submitted against the petitioner. It has further been prayed that opposite parties may be directed to release all the amount of retiral benefits like Provident fund, Gratuity, Insurance and Pension etc. to the petitioner as payable to him under law. ( 2 ) ACCORDING to the petitioner, he was initially appointed on the post of temporary overseer in the Public Works Department on december 9, 1970. In pursuant to the appointment order dated December 9, 1970, the petitioner joined on the said post on January 9, 1971. Thereafter, the petitioner continued in service on the post of Overseer, which was later on re-designated as Junior Engineer. According to him, after the enforcement of U. P. Regularization of ad hoc Appointments (outside the purview of the Public Service commission) Rules, 1969, the services of the petitioner was terminated vide order dated May 14, 1984 by saying that. his services were no more required in the department. Feeling aggrieved, the petitioner preferred a writ petition, which was numbered as writ petition no. 2730 of 1984, before this Court and this court, vide order dated April 16, 2007, allowed the writ petition and quashed the order dated may 14, 1984 with consequential benefits. It was also provided that it will be open for the opposite parties to consider the petitioners case afresh in accordance with Rules and shall pass appropriate orders for payment of post retiral dues, keeping in mind the fact that the petitioner continued in service up to the age of superannuation i. e. upto January 31, 2007. ( 3 ) PRIOR to his retirement, it has been alleged that the petitioner was involved in a case of making the excess payment to one builder bachhewar Constructions Pvt. Ltd. , Mumbai, along with his superior officers, namely, Chief engineer and Assistant Engineer at the construction Division Office, Sultanpur and as such, he was placed under suspension and later on he was issued a charge-sheet vide letter dated february 18, 2006 by the opposite party No. 3. In response to the charge-sheet, the petitioner submitted his reply vide his letter dated April 19, 2006 to the Inquiry Officer. Thereafter, the petitioner was not informed about the said inquiry and the Inquiry Officer, without fixing any date, time and place, proceeded ex-parte with the inquiry. ( 4 ) IT has been contended that after conclusion of the said inquiry, a letter dated june 13, 2006 was written by the Inquiry officer requiring the petitioner for personal appearance on June 26, 2006. In compliance thereof, the petitioner appeared on June 26, 2006 but neither any hearing was done by the inquiry Officer with regards to the matter of inquiry nor the petitioners statement was recorded by the Inquiry Officer. Thereafter, a show cause notice was issued on November 27, 2006 to the petitioner. In response thereof, the petitioner submitted his reply on December 16, 2006 but without looking to the reply submitted by the petitioner, the opposite party No. 3 passed the impugned order dated April 2, 2007, whereby a recovery of an amount of Rs. 3,49,746. 50 was ordered and further a censure entry was also recorded. Feeling aggrieved, the petitioner has preferred the instant writ petition inter alia on the grounds that the Inquiry officer has not fixed any date, time and place for making the inquiry and further no proceedings were held by the Inquiry Officer in the matter after receiving the reply of the petitioner against the charge-sheet issued to the petitioner and as such, the inquiry so conducted by the Inquiry Officer is vitiated and the order passed on the basis of the said report is not tenable in the eyes of law. ( 5 ) SRI N. N. Jaiswal, learned counsel for the petitioner has submitted that mere fixing a date for personal hearing does not amount to giving of opportunity of hearing and even on June 26, 2006 i. e. the date fixed for personal hearing neither any personal hearing had taken place nor the petitioners statement was even recorded by the Inquiry Officer and as such, the enquiry was conducted by the Inquiry Officer in utter disregard of the principle of natural justice. He has submitted that the department has made an adjustment also of Rs. 3,49,746. He has submitted that the department has made an adjustment also of Rs. 3,49,746. 50 from the gratuity of the petitioner and not a single paisa has been, paid to the petitioner towards the gratuity of the petitioner, which shows the illegal and arbitrary action of the opposite parties. ( 6 ) ON the other hand, Sri Sanjay Sarin, learned Standing counsel has submitted that the enquiry was conducted strictly in accordance with law. The petitioner was provided adequate opportunity to defend himself and he was also provided an opportunity of personal hearing. The Inquiry Officer has found that the petitioner had committed misconduct and the charges levelled against the petitioner were found to be proved. The punishing authority after issuing show cause notice and considering the reply of the petitioner passed the punishment order dated April 2, 2007. ( 7 ) CLARIFYING further, Sri Sarin submitted that the petitioner had attained the age of superannuation on January 31, 2007 and after retirement, he has been paid 90% of G. P. F. amount through Cheque No. 377544 dated July 25, 2007 and for the payment of remaining amount of G. P. F, the matter has been referred to accountant General, U. P.-II vide letter dated august 7, 2007. The petitioner has also been paid the amount of Group Insurance Scheme vide cheque No. 371388 dated July 2, 2007. The petitioner has also been paid 300 days Leave encashment through a treasury cheque. He submits that so far as the payment of pension and gratuity to the petitioner is concerned, the matter was sent to Engineer, Kanpur Region, u. P. , Public Works Department, Kanpur to the additional Director, Treasury and Pension, kanpur Region, Kanpur vide letter dated May 29, 2007. ( 8 ) SRI Sarin has further submitted that on july 8, 2008, the petitioner himself made an application to the Chief Engineer, Kanpur City, p. W. D. , Kanpur, requesting therein that the recovery, which is to be made in pursuance of punishment order dated April 2, 2007, may be made from his gratuity, a copy of which has been annexed as Annexure SCA-1 to the supplementary counter affidavit. On the said application, the Executive Engineer concerned has recovered an amount of Rs. On the said application, the Executive Engineer concerned has recovered an amount of Rs. 3,49,747/- from the gratuity of the petitioner vide order dated august 22, 2007 and also the Treasury concerned has made Pension Payment Order on august 23, 2007, a copy whereof has been annexed as Annexure SCA-2 to the supplementary counter affidavit. Thereafter, on july 8, 2008, this Court has passed an interim order, provided therein that till further orders of the Court further recovery proceedings in pursuance to the impugned order shall remain stayed. He has submitted that whatever recovery was to be made from the petitioner, has already been made vide order dated August 22, 2007 and now no further recovery is to be made from the petitioner. Therefore, the petitioner is not entitled for any relief. ( 9 ) THE main question which is to be examined in the present case is, whether recovery can be made from the gratuity or not. There is a special Act, relating to payment of gratuity known as The Payment of Gratuity act, 1972 (hereinafter referred to as the act for the sake of brevity ). The provision of payment of gratuity has been provided under section 4 of the Act, wherein sub-clause (6)spells out the conditions, under which gratuity of an employee can be stopped or withheld. ( 10 ) SECTION 4 sub-clause (1) says that gratuity shall be payable to an employees on the termination of his employment after he has rendered continuous service for not less than five years (a) on his superannuation; (b) on his retirement or resignation; or (c) on his death or disablement due to accident or disease; and sub-clause (6) reads as under: " (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 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. " ( 11 ) A Division Bench of this Court in Writ petition No. 1519 (S/b)/2002, Kanti Prasad sharma v. U. P. Co-operative Dairy Federation and Milk Union Centralised Services and another, decided on April 26, 2004, had an occasion to consider the provisions of the aforesaid Section 4 of Payment of Gratuity Act and the Court found that if none of the conditions aforesaid as given in Section sub-clause (6) exists, the gratuity cannot be withheld. ( 12 ) IN the present case, the services of the petitioner has not been terminated but a punishment order has been passed for recovery of the amount and a censure entry was awarded. Therefore, none of the conditions, referred to above, falls under any of the conditions otherwise given in sub-section (6) and its sub-clauses. Even if the petitioner has given an application that amount sought to be recovered may be recovered from gratuity payable to him, as pointed by the learned Standing counsel, it was the duty of the authority concerned to examine the matter that whether such an application can be accepted. Suppose, a government servant gives an application for grant of certain benefit, which is not legally permissible to him, the competent authority will reject the same on the ground that relevant law does not permit for grant of such benefit. Suppose, a government servant gives an application for grant of certain benefit, which is not legally permissible to him, the competent authority will reject the same on the ground that relevant law does not permit for grant of such benefit. Similarly, if a government servant gives an application out of his own free-will that amount should be recovered from the gratuity, it is the duty of the authority concerned to scrutinize the same in the light of the relevant provisions of law and the Payment of Gratuity Act, 1972 and thereafter, pass appropriate order in accordance with law. In the case in hand, the Chief engineer, Kanpur Division, Kanpur, acted on the application of the petitioner in haste without applying his mind and examining the application in light of the relevant provisions. An authority cannot and should not act contrary to law. ( 13 ) SINCE I am satisfied that the amount has wrongly been recovered from the gratuity payable to the petitioner and is contrary to the provisions of the Act, I am not entering into the other aspect of the case that whether the enquiry was conducted in accordance with law or not. ( 14 ) AT this juncture, it is useful to mention that withholding the gratuity is not permissible under any circumstance other than those enumerated in Section 4 (6) of the Act and right to gratuity is a statutory right. See K. C. Mathew v. Plantation Corporation of Kerala Ltd. 2000-II-LLJ-637 (Ker ). ( 15 ) TAKING the holistic view of the matter, it is provided that Rs. 3,49,747. 00, recovered from the gratuity of the petitioner by the executive Engineer, shall be refunded to the petitioner within a maximum period of six weeks from the date of receipt of a certified copy of this order. With the aforesaid observations and direction, the writ petition stands disposed of finally. .