Allahabad High Court
Ram Swaroop Sharma vs State Of U.P. & Others on 12 March, 2015
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Orders Reserved on 10/2/2015.
Delivered on 12 /3/2015
A.F.R
Court No. - 59
Case :- WRIT - A No. - 15213 of 2009
Petitioner :- Ram Swaroop Sharma
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- Manish Goyal
Counsel for Respondent :- C.S.C.,Mridul Tripathi,P.K.Tripathi
Hon'ble Yashwant Varma,J.
The apathy and unsympathetic attitude of the respondents has compelled the petitioner to approach this Court under Article 226 of the Constitution of India. The cause itself when untangled and stripped of all unnecessary facts and orders passed by the Respondents centres around a paltry sum of Rs. 574.70.
The cause raised is one which should have been settled and laid to rest at the level of the respondent themselves especially when the petitioner who had been in employment with them from 1973 and retired on 31/1/2006 could have at best been held liable to repay a sum of Rs.574.70/-. And yet this Court finds that the retiral dues of the Petitioner were admittedly disbursed only on 14/2/2008 and that too after deduction of an amount of Rs.13157.90/-. This deduction itself having been made pursuant to an order dated 08/2/2006 evidently passed after the retirement of the petitioner.
But first the relevant facts. The petitioner was appointed on 08/3/1973 as a Routine Grade Clerk in the erstwhile Uttar Pradesh State Electricity Board. Over a period of service he discharged his duties without complaint and retired while working as a Site Cashier in the office of the respondent Corporation. It appears that a charge sheet dated 22/4/1989 was served upon him alleging that three bills amounting to Rs.359.77/-, Rs.574.70 and Rs.12273.43/- (thus totalling to Rs.13157.90) came to be disbursed by him even before pay orders were recorded on these bills. The act of the petitioner having obtained payment before the passing of the bills was viewed as a serious financial irregularity and accordingly the petitioner was put to notice of the said charge and was required to submit his defence. It appears that in response to the said charge-sheet, the petitioner ultimately submitted a reply on 09/2/2005. No inquiry proceedings appear to have been conducted even though a two member Committee had been constituted. The petitioner in paragraph 6 of the writ petition has averred that the two member Committee constituted for the said purpose refused to hold an inquiry on the charge-sheet issued against the petitioner and had returned the papers to the respondent no.4 for taking appropriate action. Surprisingly, the respondents in response to the aforesaid averments have submitted that the inquiry proceedings against the petitioner have not been finalized till date and the charge-sheet against him has also not been revised. The affidavit of the respondents further carries an admission that out of the three questionable bills only Bill No.6111 dated 03/9/1980 amounting to Rs.574.70/- related to the petitioner while the other two bills had been passed by another official namely Raghuvir Saran Sharma and it was in the above background that the respondent Corporation sought permission to issue a revised charge-sheet. This permission sought from the Director Internal Audit has till date not been received from the respondents.
To complete the sequence of events, it is submitted in the writ petition that the respondent no.4 ultimately passed an order dated 06/9/2005, recording a warning in the service book of the petitioner requiring him to be more careful in the discharge of his duties and that in future work in respect of disbursement and other allied issues be not entrusted to him. For all intents and purposes this order dated 06/9/2005 passed by the respondent no.4 exonerated the petitioner from the charges levelled against him.
Nearing the end of his service tenure, the respondent no.5 appears to have passed an order on 15/12/2005, providing therein that a sum of Rs.574.70/- may be deducted from the retiral dues of the petitioner. This order assumes significance inasmuch as the Inquiry Committee admittedly never submitted a report upon the charge-sheet issued to the petitioner and as per the respondents themselves, the charge-sheet was never revised and the issue was pending consideration before the Director Internal Audit, Lucknow. The order dated 06/9/2005, exonerated the petitioner from the charges levelled against him and only recorded a warning in respect of the incident in question. In any view of the matter the said order had not made any directions for the recovery of the sum of Rs.574.70/-.
However, more on this a little later. Post the passing of the order dated 15/12/2005, which came to be made ex-parte as per the petitioner, an order dated 08/2/2006, came to be passed by the respondent no.4 this time seeking deduction of an amount of Rs.13157.90/- from the retiral dues of the petitioner. Pursuant to the aforesaid order, the respondent no.6 issued an order dated 15/2/2006 carrying similar directions. As noticed hereinabove, however, the petitioner by this time had already retired from service having attained the age of superannuation on 31/1/2006.
Even though, the petitioner demitted office in January, 2006, his retiral dues were not released. The retiral dues of the petitioner were not released even after deduction of a sum of Rs.13157.90/-. This appears to have compelled the petitioner to write to the respondents to deduct the aforesaid sum from his gratuity and release the balance retiral dues. It appears that it was on receipt of the aforesaid communication that the respondent no.4 passed an order dated 24/10/2007, ordering the release of the retiral dues of the petitioner after deduction of the aforesaid sum and it was on the aforesaid direction that the petitioner was paid commuted pension and gratuity of Rs.6,57,442/- vide cheque dated 11/2/2008.
It is in the above background that the petitioner assails the validity of the orders dated 15/12/2005, 08/2/2006 and 15/2/2006. These orders as noticed herein before directed the release of the pensionary benefits of the petitioner after deduction of the amount of Rs.13157.90/-. The petitioner has further sought the issuance of an appropriate writ commanding the respondents to undo the deduction of Rs.13157.90/- from his retiral dues and credit the said sum to his account along with interest at the rate of 18 percent. Interest of 18 percent is further claimed on the delayed payment of commuted pension and gratuity for the period 01/2/2006 to 11/2/2008.
Shri Manish Goyal, learned counsel appearing for the petitioner has submitted that the respondents have clearly acted arbitrarily and unfairly inasmuch as the departmental proceedings initiated against him culminated in the passing of the order dated 06/9/2005 by the respondent no.4. He would submit that once the petitioner was inflicted the minor punishment of warning, the inquiry proceedings would be deemed to have culminated and extinguished/merged in the said order of punishment. He submitted that the order dated 06/9/2005, nowhere imposed upon the petitioner the penalty of deduction of Rs.13157.90/-.
Learned counsel for the petitioner has further submitted that without prejudice to the above contention and as per the admission of the respondents themselves the disciplinary proceedings had not been completed till date and that they were admittedly still grappling with the issues of promulgation of a revised charge-sheet. He has submitted that admittedly no revised charge-sheet was issued against the petitioner till he attained the age of superannuation on 31/1/2006. In light of the above undisputed facts, the learned counsel for the petitioner submits, no deductions could have been made from his retiral dues and, therefore, the respondents are liable to pay the sum of Rs.13157.90/- together with interest to the petitioner.
Learned counsel for the petitioner further elaborating his submissions has contended that the deduction of the aforesaid sums were not preceded by any finding of loss having been suffered by the Corporation. At lease till 31/1/2006, the petitioner was not held guilty of having caused financial loss to the respondent Corporation in any disciplinary or departmental proceedings. He further submits that the issue of financial loss having been caused by an employee could not have been decided ex-parte by the employer and such a finding could have been returned/recorded only after affording him an opportunity of hearing and following the minimal requirements of the principles of natural justice.
He has lastly contended that the instant is not a case where (and nor have the respondents pleaded as such) the respondents may have continued a pending disciplinary proceedings post the superannuation of the petitioner or where the processes envisaged under Regulation 351-A of the Civil Services Regulations may have been followed. For all the aforesaid reasons, the learned counsel for the petitioner would submit, the petitioner is entitled to the reliefs sought in this writ petition.
Shri P.K. Tripathi, learned counsel appearing for the respondent Corporation countering the above submissions has reiterated the stand embodied in the counter affidavit filed in these proceedings. He has further submitted that it was the petitioner himself who delayed the finalisation of the departmental proceedings, therefore, the respondent Corporation cannot be faulted on this score. To a pointed query of the Court as to whether the procedure prescribed under Regulation 351-A referred to above had been followed and/or was under contemplation, the answer of Shri P.K. Tripathi, learned counsel appearing for the respondent Corporation was in the negative. In fact, it was on this issue that the learned counsel was granted accommodation by this Court to complete his instructions and the matter itself was adjourned on 06/2/2015 and posted for 10/2/2015 for final disposal. On the said date also, Shri Tripathi, learned counsel appearing for the Corporation reiterated that no proceedings under Regulation 351-A or any other akin provision applicable and adopted by the Corporation had either been taken or were under contemplation. He has further submitted that the respondent no.4 had neither any authority nor jurisdiction to pass the order dated 06/9/2005 and that the same was clearly without jurisdiction.
Before delving upon the rival contentions advanced by the learned counsel for the parties, it would be apposite to refer to the pleadings taken by the Corporation in their counter affidavit.
"4.That in reply to the contents of paragraph no.2 of the writ petition it is denied that amount of Rs.13,157.90 is deducted from the gratuity of the petitioner without any authority till the disciplinary proceeding pending against him are finalized. It is submitted that as soon the disciplinary proceeding will finalize the action will be taken accordingly.
7. That in reply to the contents of paragraph no.6 of the writ petition it is to be submitted that the charge sheet was framed against the petitioner by Director Internal Audit, Lucknow and the General Manager, H.T.P.S. Kasimpur, Aligarh/respondent no.3 has also referred the matter to the General Manager Human Resources Lucknow vide letter dated 02.11.2006, 20.02.2007 and 10.09.2007, and the matter is still pending before General Manager Human Resources Lucknow. The amount of Rs.13,157.90 is detained from the gratuity of the petitioner under the under the letter no.4004/HR-Adm.02UNL/07-1(I) dated 24.10.2007 of General Manager, Human Resources Lucknow, therefore the order passed by the Superintending Engineer/respondent no.4 dated 08.09.2005 is without jurisdiction and is absolutely illegal as such the final decision is yet pending and the charge sheet is also not revised by the Director Internal Audit, Lucknow till date. The copy of the letters dated 02.11.2006, 20.02.2007 & 10.09.2007 are collectively being filed herewith and marked as Annexure No.CA-1 to this Counter Affidavit.
19. That the contents of paragraph no.20 of the writ petition are absolutely false, the amount Rs.13,157.90 is deducted under the directions of the Head Quarter and since the proceedings are pending and the amount can only be released after the disposal of the disciplinary proceeding."
This Court has failed to reconcile the self contradictory pleas taken by the respondent Corporation. On more than one place it would be evident from the pleadings taken in the counter affidavit extracted above, the respondents have asserted that the charge-sheet was yet to be amended and disciplinary proceedings pending against the petitioner yet to be finalised. On the other hand Shri P.K. Tripathi, learned counsel appearing for the respondent Corporation has admitted that no proceedings under Regulation 351-A or any other akin to or like provision applicable/adopted by the respondent Corporation are either pending or under contemplation. In view of the emergence of the above undisputed position, this Court has to necessarily record that the disciplinary proceedings initiated against the petitioner came to an end and at least stood extinguished on 31/1/2006 when the petitioner retired from service. If there be any power in the respondent Corporation to either continue the disciplinary proceedings, post retirement of the petitioner or to initiate proceedings for recovery for financial loss caused to the respondent Corporation, they do not appear to have been taken.
An employee cannot be held to have caused pecuniary loss to the Government/Employer unless appropriate proceedings to establish the above allegations are taken. This necessarily because before effecting such recovery of alleged pecuniary loss, the disciplinary authority has to record that the loss has been caused by the negligence or fraud committed by the employee concerned. The provisions of Regulation 351-A put in place a further hurdle upon the employer and that is the obtaining of sanction from the appropriate authority before instituting such proceedings in a case where the departmental proceedings are not instituted while the employee was on duty.
In light of the unambiguous statement made by Shri Tripathi, learned counsel appearing for the respondent Corporation, this Court must record that no proceedings akin to Regulation 351-A were taken against the petitioner or are presently under contemplation.
The Court further finds that the respondents themselves in the counter affidavit have admitted that out of the sum of Rs.13157.90/- deducted from the retiral dues of the petitioner only one bill of Rs.574.70/- had been passed by him. However it is not stated that the disbursement of this amount was a loss caused to the Corporation. The charge only was that this sum was released before a pay order in respect of the same was obtained. This admission contained in paragraph 6 of the counter affidavit also compels this Court to hold that the impugned orders cannot be sustained.
The deduction of the sums from the retiral dues of the petitioner be it Rs.13157.90/- or Rs.574.70/- in any view of the matter could not have been ordered without affording any opportunity of hearing to the petitioner. More fundamentally, the deduction itself could not have been ordered unless it was found as a fact that the pecuniary loss had been caused to the Corporation on account of the misconduct, negligence or fraud by the petitioner.
It would not be out of place to lastly deal with the contention of Shri Tripathi, learned counsel appearing for the Corporation, that the order dated 06/9/2005 passed by the respondent no.4 was without jurisdiction. It must be noted here that it is not the case of Shri Tripathi that the respondent no.4 was not the appointing authority of the petitioner nor the appropriate Disciplinary Authority. What is submitted is that the charge-sheet in question had been framed by the Director Internal Audit, Lucknow and that the entire matter had been referred to the General Manager Human Resources, Lucknow. In the opinion of the Court in the absence of any assertion that the respondent no.4 was not the Appointing/Disciplinary Authority, this contention of Shri Tripathi, learned counsel appearing for the Corporation cannot be countenanced. In any view of the matter, the above issue pales into insignificance in light of the facts which have emerged before the Court namely that no proceedings/orders had been passed holding the petitioner guilty of having caused pecuniary loss to the Corporation on account of misconduct, negligence up to the date of his retirement. Post retirement of the petitioner also as noticed hereinabove, no proceedings have either been initiated or appear to be under contemplation.
In light of the above position which emerges from the facts of this case, this Court holds that the deduction of a sum of Rs.13157.90/- was clearly illegal and unauthorised in the eyes of law.
The respondents have further not proffered any explanation as why the payment of retiral dues was delayed between 2006 and 2008. It was as far back as in 1971 that the Hon'ble Supreme Court of India in Deokinandan Prasad Vs. State of Bihar (1971) 2 SCC 330 held that pension is neither bounty nor charity. It constitutes an entitlement of the employee on account of the services rendered by him. If there be any doubt with respect to the above proposition, the Court refers to D.D. Tewari v. Uttar Haryana Bijli Vitran Nigam Ltd., (2014) 8 SCC 894 "4. The learned Single Judge has allowed the writ petition vide order dated 25-8-20102, after setting aside the action of the respondents in withholding the amount of gratuity and directing the respondents to release the withheld amount of gratuity within three months without awarding interest as claimed by the appellant. The High Court has adverted to the judgments of this Court particularly, in State of Kerala v. M. Padmanabhan Nair3, wherein this Court reiterated its earlier view holding that: (SCC pp. 429-30, para 1) "1. [the] pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment [to the employees]."
5. The said legal principle laid down by this Court still holds good insofar as awarding the interest on the delayed payments to the appellant is concerned. This aspect of the matter was adverted to in the judgment of the learned Single Judge without assigning any reason for not awarding the interest as claimed by the appellant. That is why that portion of the judgment of the learned Single Judge was aggrieved of by the appellant and he had filed LPA before the Division Bench of the High Court. The Division Bench of the High Court has passed a cryptic order which is impugned in this appeal. It has adverted to the fact that there is no order passed by the learned Single Judge with regard to the payment of interest and the appellant has not raised any plea which was rejected by him, therefore, the Division Bench did not find fault with the judgment of the learned Single Judge in the appeal and the letters patent appeal was dismissed. The correctness of the order is under challenge in this appeal before this Court urging various legal grounds.
6. It is an undisputed fact that the appellant retired from service on attaining the age of superannuation on 31-10-2006 and the order of the learned Single Judge after adverting to the relevant facts and the legal position has given a direction to the respondent employer to pay the erroneously withheld pensionary benefits and the gratuity amount to the legal representatives of the deceased employee without awarding interest for which the appellant is legally entitled, therefore, this Court has to exercise its appellate jurisdiction as there is a miscarriage of justice in denying the interest to be paid or payable by the employer from the date of the entitlement of the deceased employee till the date of payment as per the aforesaid legal principle laid down by this Court in the judgment referred3 to supra. We have to award interest at the rate of 9% per annum both on the amount of pension due and the gratuity amount which are to be paid by the respondent.
7. It is needless to mention that the respondents have erroneously withheld payment of gratuity amount for which the appellants herein are entitled in law for payment of penal amount on the delayed payment of gratuity under the provisions of the Payment of Gratuity Act, 1972. Having regard to the facts and circumstances of the case, we do not propose to do that in the case in hand.
8. For the reasons stated above, we award interest at the rate of 9% on the delayed payment of pension and gratuity amount from the date of entitlement till the date of the actual payment. If this amount is not paid within six weeks from the date of receipt of a copy of this order, the same shall carry interest at the rate of 18% per annum from the date the amount falls due to the deceased employee. With the above directions, this appeal is allowed."
Accordingly, and in view of the above, the writ petition is allowed. The impugned orders dated 15/12/2005, 08/2/2006 and 15/2/2006 passed by the respondent nos. 4 and 6 are quashed. The respondents are directed to credit the amount of Rs. 13157.90/- to the pensionary account of the petitioner. On the aforesaid sum from the date it was deducted till it is credited back to the account of the Petitioner, the respondents shall also pay interest at the rate of 10%. The respondents shall also for the period 01/2/2006 up to 11/2/2008, (the period of delay in disbursal of retiral dues) pay the petitioner interest at the rate of 10 percent per annum on the sums disbursed. The above directions of this Court be complied with within 1 month of the Petitioner furnishing a certified copy of this order before the Respondents.
Before parting with this case, this Court is constrained to record that despite the undisputed position in law with regard to payment of retiral dues, this Court every day is faced with petitions wherein it is alleged and averred that pensionary benefits have either not been released for no justifiable cause or that pensionary benefits have been paid with inordinate delay. It would not be out of place to notice here that it is to remedy the aforesaid malady that the State of U.P. has framed the U.P. Pension Cases (Submission, Disposal And Avoidance of Delay) Rules, 1995. The time schedule appended to these Rules sets out the relevant time frame for completion of all steps relating to the disbursal of pension claims. The time schedule mandates that the process of verification of service book and issues of no dues certificate, preparation of pension papers and forms are all matters which must be completed before the retirement of the employee. The payment order with regard to pension/gratuity/commuted pension is liable to be issued up to or on the eve of retirement. The actual disbursal of pension itself is mandated to be made one month from the date of receipt of the payment order. Rule 4 (3) then envisages the initiation of departmental proceedings to identify and take action against the person responsible for delayed payment.
Despite the framing of the aforesaid rules, this Court finds that not just in this case, but in various other cases, the provisions of these rules have not been adhered to and are treated as dead letter. The State may be well reminded to reiterate to all concerned Departments the need to strictly follow and adhere to the provisions of the rules aforementioned and to ensure that Nodal/Chief Nodal Officers designated under the aforesaid rules ensure that the provisions of the aforesaid rules are strictly followed. Let the Chief Secretary State of U.P. consider passing appropriate directions to the various Departments of the Government of U.P. to bear these Rules in mind. A copy of this judgement be also provided to the learned Chief Standing Counsel of the State of U.P. for communication to the Chief Secretary Government of U.P. for further follow up action.
Order Date :-12.3.2015 SB