Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 1184 (ALL)

State Of U. P. v. Mohd. Janbaz Alam

2023-04-28

MANOJ KUMAR GUPTA, PRASHANT KUMAR

body2023
ORDER : Order in the Delay Condonation Application 1. Heard learned counsel for the parties. 2. The explanation for the delay furnished in the affidavit accompanying the delay condonation application is found to be satisfactory. 3. Accordingly, the delay is condoned. 4. Office is directed to allocate a regular number to the instant appeal. Order on the Memo of Appeal 5. Heard Shri Ramanand Pandey, learned Standing Counsel for the appellants and Shri Upendra Upadhyay for the respondent. 6. The State is in appeal against the judgement of learned Single Judge dated 02.11.2022 by which, the writ petition filed by the respondent (hereinafter referred to as the "Writ Petitioner") was allowed and the amount recovered from the writ petitioner in pursuance of orders impugned dated 08.09.2016 and 02.05.2017 was directed to be restituted within a period of three months. 7. The facts necessary for disposal of the instant appeal are that the petitioner had retired on 30.06.2014 from the post of Junior Engineer, Rural Engineering Services, Ghazipur. On 08.09.2016, the Executive Engineer, Rural Engineering Services, Division Ghazipur, issued an Office Order approving recovery of a sum of Rs. 3,10,022/- from the petitioner. The order records that by mistake the petitioner was given benefit of the 3rd Assured Career Progression Scheme from 12.08.2008, though he was entitled to it from 01.12.2008. The difference amount was consequently sought to be recovered thereby. The order dated 02.05.2017 is a communication sent by Additional Director, Treasury and Pension, Varanasi Mandal, Varanasi to Senior Treasurar, Treasury, Ghazipur by which approval had been granted for release of gratuity to the petitioner after deducting Rs. 4,09,878/-. It is common ground between the parties that it includes the amount of Rs. 3,10,022/-allegedly paid in excess to the petitioner because of the petitioner having been granted benefit of A.C.P. from an earlier date. It also includes another sum of Rs. 99,856/-. It represents the amount allegedly paid in excess by the petitioner to a contractor during his service-tenure in the year 2011-12. The learned Single Judge has held that both the recoveries were illegal and could not have been made in view of the law laid down by the Supreme Court in State of Punjab and Others v. Rafiq Masih (White Washer) (2015) 4 SCC 334 and Thomas Daniel v. State of Kerala & Others (Civil Appeal No. 7115 of 2010). 8. The learned Single Judge has held that both the recoveries were illegal and could not have been made in view of the law laid down by the Supreme Court in State of Punjab and Others v. Rafiq Masih (White Washer) (2015) 4 SCC 334 and Thomas Daniel v. State of Kerala & Others (Civil Appeal No. 7115 of 2010). 8. Shri R.N. Pandey, learned Standing Counsel submitted that learned Single Judge committed a manifest error of law in applying Rafiq Masih (supra) to the facts of the instant case inasmuch as recovery of Rs. 99,856/-was on account of excess payment made by the petitioner to the contractor. It is submitted that the judgement in case of Rafiq Masih (supra) would apply only to cases of wrong fixation of salary or payment of excess allowances but not where the employee was guilty of causing pecuniary loss to the State by making excess payment to the contractor. 9. On the other hand, learned counsel for the respondent submitted that the alleged payment of excess amount to the contractor is based on a unilateral opinion formed by the respondent-Department after his retirement. It is submitted that a contract for a sum of Rs. 56.15 lakhs was duly approved and after the work thereunder was satisfactorily executed, the payment was released. The State did not raise any objection in relation to the payment made to the contractor while the writ petitioner was in service. After his retirement, no such recovery can be directed. It is submitted that under Regulation 351-A of the Civil Service Regulations, such an action is not permissible as there was no sanction of the Governor and also because the event in respect of which, the recovery is sought to be made, took place more than four years before the institution of the proceedings. 10. It is clear from the rival contentions that the instant appeal is confined only to the alleged excess payment made by the writ petitioner to the contractor. 10. It is clear from the rival contentions that the instant appeal is confined only to the alleged excess payment made by the writ petitioner to the contractor. The relevant part of Regulation 351-A of Civil Service Regulations is extracted below :- "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 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 reemployment after retirement : Provided that- (a) such departmental proceedings, if not instituted while the office 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 proceeding ; 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)." 11. The Governor has been given right to recover pecuniary loss from the pensionary benefits, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during his service. Moreover, the departmental proceedings, if initiated after retirement, would only be with sanction of the Governor and shall be in respect of any event which took place not more than four years before the institution of such proceedings. 12. In the instant case, admittedly, no departmental or judicial proceedings were initiated against the writ petitioner before directing recovery of the amount from the pensionary benefits. There was also no sanction of the Governor. 12. In the instant case, admittedly, no departmental or judicial proceedings were initiated against the writ petitioner before directing recovery of the amount from the pensionary benefits. There was also no sanction of the Governor. Concededly, the alleged excess payment was made in the year 2011-12 and definitely, it related to an event which took place much more than four years before order was passed for recovery of the amount. Consequently, we are of the opinion that the said amount was not recoverable at this distance of time in view of the safeguards provided under Regulation 351-A. 13. Learned State counsel also tried to contend that the petitioner had agreed for deduction of the aforesaid amount in his letter dated 11.07.2016 and, therefore, cannot resile from the undertaking and challenge the same. 14. Learned counsel for the writ petitioner has vehemently disputed the said contention. He has invited the attention of the Court towards the alleged admission contained in letter dated 11.07.2016 and contended that thereby the writ petitioner only agreed for temporary withholding of the aforesaid amount so that the payment of the remaining amount is made to him without any further delay. 15. The letter of the petitioner dated 11.07.2016 containing alleged admission is as follows :- ^^lsok esa vf/k'kklh vfHk;ark xzkeh.k vfHk;a=.k foHkkx iz[k.M&xkthiqj egksn;] fouezrkiwoZ lfou; fuosnu ds lkFk voxr djuk gS fd ge izkFkhZ fnukad 30-06-2014 dks lsok fuo`fRr gks pqdk gw¡ A nks o"kZ ls vf/kd le; O;rhr gks tkus ds i'pkr~ vHkh rd isa'ku@jkf'k dj.k ,oa xzstqVh dk Hkqxrku ugha gks ik;k gSA vr% vkils vuqjks/k gks fd esjs fo:) olwyh gsrq tks vf/kd /kujkf'k iznf'kZr dh tk jgh gS mls vLFkk;h :i ls jksd dj 'ks"k /kujkf'k dk Hkqxrku djus dh d`ik djsaA izkFkhZ eqŒ tkackt vkye xzkeh.k vfHk;a=.k foHkkx xkthiqj^^ 16. It is clear from the letter that the State had withheld the pensionary benefits of the writ petitioner for considerable period after his retirement. Consequently, the petitioner had agreed for temporary withholding of the amount in dispute and for releasing the remaining amount. It also transpires from the record that the respondents released the gratuity in the year 2017 only after deducting the aforesaid amount. The said letter cannot by any stretch of imagination, be construed as a concession or undertaking on part of the writ petitioner to deduct the amount in question from his pensionary benefits on permanent basis. It also transpires from the record that the respondents released the gratuity in the year 2017 only after deducting the aforesaid amount. The said letter cannot by any stretch of imagination, be construed as a concession or undertaking on part of the writ petitioner to deduct the amount in question from his pensionary benefits on permanent basis. It, on the other hand, clearly shows that the petitioner, even at that time, did not agree to the recovery, but only agreed for withholding it temporarily so as to facilitate release of the remaining pensionary benefits. It only reflects his helplessness and despair because of one-sided illegal action of the employer in withholding his pensionary benefits for more than two years, after his retirement. 17. The learned Single Judge has considered this aspect and has observed as follows :- "Insofar as the loss suffered by the State on account of excess payment made by the petitioner to the tune of Rs. 99,856/-to the contractor for the work contract executed, such a loss is alleged to be suffered by the State is of the year 2011-12 when the petitioner was in service. After the retirement when the petitioner came to know with regard to the aforesaid recovery been made from the petitioner, the petitioner by means of application dated 12.03.2016 filed objection to the aforesaid recovery explaining that the amount has been paid to the contractor as is permissible under law. The objection raised by the petitioner against the aforesaid recovery of excess payment made to the contractor was not decided by the employer and as such reminder dated 20.03.2016 was sent to the Executive Engineer. Thereafter on 31.03.2016, respondent no. 3 forwarded a letter to respondent no. 4 directing that the representation of the petitioner should be decided at the earliest. However, no order was passed by the respondents on the aforesaid objection of petitioner. The petitioner thereafter has further submitted a representation dated 01.04.2017 and 22.05.2017. The stand in the counter affidavit in paragraph 15 is that the representations of the petitioner were decided by order dated 08.09.2016 and 20.04.2017. A perusal of above-mentioned orders dated 08.09.2016 and 28.04.2017 would demonstrate that the objection by the petitioner against the aforesaid recovery by filing of objection/representation has not been considered and an order has been passed mechanically and without application of mind to the objection raised by the petitioner against recovery. A perusal of above-mentioned orders dated 08.09.2016 and 28.04.2017 would demonstrate that the objection by the petitioner against the aforesaid recovery by filing of objection/representation has not been considered and an order has been passed mechanically and without application of mind to the objection raised by the petitioner against recovery. It is to be noted that the employee can always show by filing representation/objection that the recovery/loss to the State is not attributable to the petitioner and that the payment has been made in accordance with law. The employer is required to consider the case of the petitioner in the light of objection raised by the employee. However in the present case, the objection raised by the employee by means of representation have not been considered nor the same has been decided. Such an approach by the employer is in gross violation of principles of natural justice and fair play." 18. No exception can be taken to the view expressed in this regard by the learned Single Judge. 19. No other submission has been made by learned State Counsel. 20. The appeal lacks merit and is accordingly, dismissed. 21. No order as to costs.