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2018 DIGILAW 1219 (JHR)

Uday Shankar Upadhyay v. State Of Jharkhand

2018-06-13

S.N.PATHAK

body2018
JUDGMENT S.N. Pathak, J. – Counter-Affidavit is taken on board. 2. The petitioners have approached this Court for quashing the impugned orders as contained in Memo No. 40 dated 08.01.2016 (Annexure-1), Memo No. 1188 dated 06.08.2016 (Annexure-2) and Letter No. 1737 dated 10.08.2015 (Annexure-3), whereby the respondents have ordered to recover the amount of Royalty and advance taken for construction of class-rooms from the amount of unutilized earned leave after retirement. Further prayer has been made to release the amount of cash in lieu of unutilized earned leave to which the petitioners are legally entitled after retirement. 3. The factual exposition as has been delineated in the writ petition is that the petitioners are retired teachers of nationalized school situated within the District of Giridih. After retirement, they have received their post retiral dues including the amount of pension, gratuity, GPF and group insurance. However, the amount of cash in lieu of unutilized earned leave, has been illegally withheld by the respondents on the pretext of dues of some royalty to be paid to Government and outstanding dues by way of advance given to the petitioners for construction of school rooms long back. It is the specific case of the petitioners that in view letters/Memo issued by the District Programme Officer sizable amount was pending against the petitioners as dues in form of Royalty and advance, which was not deposited in the Government funds after retirement. 4. It is further the case of the petitioners that in case of petitioner No.1 the amount of Rs. 1,12,172/-, in case of petitioner No.2 the amount of Rs. 53,206/- and in case of petitioner No.3 the amount of Rs. 74,527/- was outstanding. As the petitioners were not liable for making such payment in the head of royalty, the amount of leave encashment of the petitioners is illegally withheld by the respondents, they filed representation before the respondents, but the same were not considered and as such, the petitioners have been constrained to knock the door of this Court for redressal of their grievances. 5. Ms. Bharti Kumari, learned counsel appears on behalf of the petitioners strenuously urges that the impugned orders are not sustainable in the eyes of law, as the said orders have been passed after one year of the retirement of the petitioners. The petitioners have received all the retirement benefits except the leave encashment/ unauthorized leave. 5. Ms. Bharti Kumari, learned counsel appears on behalf of the petitioners strenuously urges that the impugned orders are not sustainable in the eyes of law, as the said orders have been passed after one year of the retirement of the petitioners. The petitioners have received all the retirement benefits except the leave encashment/ unauthorized leave. Learned counsel further submits that the issue involve in this writ petition is set at rest in case of Mariyam Tirkey Vs. the State of Jharkhand & Ors., passed in W.P.(S) No. 506 of 2013 and analogous cases. Learned counsel further argues that the petitioners cannot be termed to be lessee to the Government and as such, they are not liable to make any payment by way of royalty. No amount can be recovered from the retiral benefits i.e. leave encashment, hence, impugned orders are fit to be quashed and set aside. 6. Per contra, counter affidavit is taken on board. Mrs. Chaitali Chaterjee Sinha, learned counsel appearing on behalf of the respondents vehemently opposes the contention of the learned counsel for the petitioners and submits that petitioners were responsible for the construction of the school building and they cannot be left scot- free on the ground that they have been superannuated. Any amount due under the head of royalty, was rightly recovered from them, there is no illegality or infirmity in the impugned orders. The petitioners along with other officials have been held responsible for construction and the amount has been found due against the petitioners and as such, the amount has been ordered to be recovered. 7. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no amount can be recovered from the leave encashment of the retired employee that also without issuance of any show-cause or initiation of any proceeding. If the petitioners were found responsible and there was a finding given by the respondents in any proceeding that such amount was payable then only the petitioner could have been held responsible for the amount. But in the instant case, neither the show cause is issued against the petitioners nor any proceeding was initiated against them even after retirement. It has been held by the Hon''ble Apex Court in case of State of Punjab Vs. Rafiq Masih (whitewasher) & Ors. But in the instant case, neither the show cause is issued against the petitioners nor any proceeding was initiated against them even after retirement. It has been held by the Hon''ble Apex Court in case of State of Punjab Vs. Rafiq Masih (whitewasher) & Ors. , (2015) 4 SCC 334 , no recovery can be made from class-III and IV employee after retirement. In the instant case, admittedly, neither the notices have been issued nor any proceeding has been initiated against the petitioners and after retirement amount has been recovered from the amount of leave encashment and as such, the impugned orders as contained in Memo No. 40, dated 08.01.2016 (Annexure-1), Memo No. 1188 dated 06.08.2016 (Annexure-2) and letter No. 1737 dated 10.08.2015 (Annexure-3) are not sustainable in the eyes of law, hence, are quashed and set aside. Accordingly, the writ petition stands allowed. Any amount, if recovered from the leave encashment be refunded to the petitioners within a period of eight weeks from the date of receipt of a copy of this order.