Allahabad High Court
Raja Shanker Dubey vs State Of U.P. And Others on 15 September, 1998
Equivalent citations: 1998(4)AWC120, (1998)3UPLBEC2233
Author: P.K. Jain
Bench: P.K. Jain
JUDGMENT P.K. Jain, J.
1. Facts alleged by the petitioner are that he was working as Atlrikta Mukhya Adhlkarj. Zila Parishad, Varanasi, from 2.4.1983 till July, 1987. Thereafter he was posted as Additional District Development Officer, Azamgarh, from August, 1987 and worked as such till date of his retirement in the year 1988 on attaining the age of superannuation. By an order dated 5.1.1989, he was reappointed for a period of one year on the above post and he joined as Additional District Development Officer. Azarngarh on 17.1.1989. While he was working as Additional Chief Officer, Zila Parishad, Varanasi, he detected embezzlement of huge sum by one Omkar Nath Upadhayaya the then Cashier in Zila Parishad. Varanasi and lodged the First Information Report in the year 1989. By an order dated 15th May, 1992, the State Government directed respondent No. 2, the Commissioner, Gram Vikas, State of U. P., Lucknow, to make payment of pension and gratuity, etc. to the petitioner. Copy of the said order is appended as Annexure-4 to the writ petition. The petitioner was paid his pension .up to January, 1992. Respondent No. 1, however, by communications dated 23.4.92 and 12.10.92 stopped payment of pension to the petitioner on the ground that the matter of embezzlement in Zila Parishad, Varanasi was under investigation. Respondent No. 2 vide letter dated 7.11.1992 directed respondent No. 3 to stop payment of petitioner's pension and gratuity. The petitioner made various representations and despite the fact that the petitioner had not embezzled any amount and no charge-sheet was submitted against him and no enquiry was pending against him, for no rhyme or reason payment of pension and gratuity was stopped just to harass him as he had reported the embezzlement. The orders of the State Government and respondent Nos. 2 and 3 directing stoppage of payment of pension and gratuity were illegal, unjustified and vlolative of the provisions of Articles 14, 15 and 19 of the Constitution of India. It was further alleged that the pay scales were revised from January, 1986 when the petitioner was working with respondent No. 4 and on account of the revised pay scale he was entitled to gel Rs. 10,855 as arrears of salary for which he made representations dated 16.10.90 and 16.11.90. The Joint Secretary, State of Uttar Pradesh by letter dated 17.11.90 as contained in Annexure-10 to the writ petition directed the Additional Chief Officer, Zila Parishad. Varanasi to pay arrears of salary to the petitioner but the Additional Chief Officer. Zila Parishad, Varanasi did not make payment on the pretext that the State Government has stopped the payment of salary though it was admitted that a sum of Rs. 10,855 was due to the petitioner as arrears of salary which is evident from letter dated 20.8.91 Annexure-11 to the writ petition. Thereafter the petitioner made several representations to the Secretary, Panchayati Raj. U. P. Lucknow but with no result.
2. On the above facts, the petitioner prayed for grant of following reliefs :
(i) To issue a writ of cerriorari quashing the Impugned orders dated 23.4.1992. 28.9.1992 and 7.11.1992 Annexures-V, VI and VII respectively passed by respondent Nos. 1 and 2.
(ii) To issue a writ, order or direction in the nature of mandamus commanding the respondents to pay petitioner's pension regularly.
(iii) To issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the arrear of pension since February, 1992 to the petitioner.
(iv) To issue writ, order or direction in the nature of mandamus commanding the respondents to pay the arrear of salary amounting to Rs. 10,855 to the petitioner and pleased to pass any other writ, order or direction which this Hon'ble Court may deem fit and proper on the facts and circumstances of the case.
3. Respondent No. 4 filed counter-affidavit of Sri Sujeet Kumar Mishra, Litigation Clerk, Zila Panchayat. Varanasi. appending therewith copy of confidential letter dated 30th April, 1995 by the Investigating Officer, Crime Branch C.B.C.I.D., U. P., Varanasi. It was stated in the counter-affidavit that during the period the petitioner was posted as Additional Chief Officer, Zila Parishad. Varanasi. embezzlement of Rs. 8.34.102 took place. The matter was handed over to C.B.C.I.D.. Lucknow by the Stale Government and the C.B.C.I.D. on completion of investigation sent a letter as contained in Annexure-CA-1 to the Chief Officer. Zila Parishad. Varanasi. Since the embezzlement had taken place at the time when the petitioner was posted as Additional Chief Officer. Zila Parishad, Varanasi, the State Government, on matter being referred to it through Panchayati Raj Department. U. P.. stopped payment of salary of that period on account of which the petitioner's salary could not be paid.
4. For respondent No. 3, one Sri Suresh Narain Tiwari. District Development Officer. Azamgarh; filed counter-affidavit in which it was stated that the petitioner superannuated on 30.11.88 and was reappointed for a period of one year in the year 1989. On the basis of services rendered by the petitioner, directions were issued by the State Government for payment of provisional pension to the petitioner and the same was being regularly paid to the petitioner. Since the entire dispute relates to the period of service rendered by the petitioner in district Varanasi on the post of Upper Mukhya Adhikari, Zila Parishad, Varanasi and the matter in question is being enquired into and is under consideration of the State Government, the matter of payment of regular pension to the petitioner shall be taken up only after decision of the State Government.
5. Despite several opportunities being given, no counter-affidavit was filed on behalf of respondents Nos. 1 and 2. The Court had to pass the following orders :
"31.3.98. The petitioner through this writ petition, filed on 22.2.1993. claims that he was appointed as A.D.O. before 1961 and B.D.O. In 1961 and though retired in 1988 on reaching his age of superannuation as Additional District Development Officer was reappointed for one year vide order dated 5.1.1989 and it was he who had lodged F.I.R. against one Omkar Nath Upadhyaya in regard to embezzlement of certain amount while he was working as Additional Chief Officer. Zila Parishad. Varanasi, yet he is being deprived of his arrears of salary and pension even though neither any criminal case nor was/is any departmental proceeding pending against him.
2. Learned standing counsel was granted one month's time on 31.3.1994 to file counter. No counter having been filed, on 15.7.1997 the writ petition was admitted fixing 3.9.1997 for its hearing after noting in order dated 15.7.1997 the statement of Mr. Bisaria, the learned standing counsel that a letter was written for grant of necessary Instructions.
3. On 28.10.1997 the learned standing counsel Mr. Bisaria again prayed for adjournment on the ground that counter-affidavit was dictated in this case by another standing counsel but his records are missing. The case was adjourned to 11.11.1997 clarifying that it will be disposed of on the materials available on the record on that date. On 9.12.1997 this case was heard in part by us and adjourned to 23.12.1997 and we expressly recorded that we will like to know what decision the Government has taken in regard to the petitioner in the meantime. Mr. Yadav, learned Standing counsel on 7.1.1998 prayed for adjournment on the ground that he is expecting some orders from the Government and we again adjourned this case to 21.1.1998. The same prayer was made and allowed on 3.3.1998 and 8.3.1998. Today again he states that communication was sent to the Commissioner. Gram Vikas respondent No. 2 for giving instructions and for filing counter.
4. On 6.11.1997 counter-affidavit on behalf of respondent No. 3 only along with delay condonation petition through Sri A. N. Rai. standing counsel was filed stating, inter alia, that the petitioner had superannuated on 30.11.1988 ; that the dispute relates to his period of service as Additional Chief Officer, Zila Parishad, Varanasi, which is being enquired into and is under consideration of the Government ; and that action for payment of regular pension will be taken only after the decision of the State Government but he is being paid provisional pension.
5. In the counter-affidavit filed by respondent No. 4 on 9.12.1994. It has been stated, inter alia, that there was embezzlement of about Rs. 8,34,102 in 1985 ; that the State government handed over the matter to C.B.C.I.D., that the salary of the petitioner was stopped by the order of Panchayat Raj Department ; that as the enquiry is still pending ; hence payment for arrears of salary could not be made ; and that the question of payment of pension does not arise from the office of Zila Panchayat as he had retired in 1988.
6. We wanted an answer from respondent Nos. 1 and 2 and we went on adjourning this case but alas some answer could be given.
7. Normally we do not resort to initiation of proceedings in contempt, but having regard to the peculiar facts and circumstances averred by the petitioner, which have not been denied by respondent No. 1 or respondent No. 2. we wanted to know whether the C.B.C.I.D. enquiry is still continuing or it has ended and it ended what orders the Government has passed. in this backdrop prima facie .....it appears that the Commissioner has resorted to a non-co-operational attitude and has tried to block our administration of justice. We. accordingly, issue a notice to him to show cause why proceeding in contempt be not initiated against him (respondent No. 2) fixing April 7, 1998 for his appearance and for further hearing. We hope that he will file counter even during this stage bringing relevant facts.
8. The office is directed to hand-over a copy of this order by tomorrow to the learned standing counsel Mr. Yadav for its communication to and follow up action by respondent No. 2. which will be deemed to be sufficient notice to him.
Sd./- Justice B. K. Roy Sd./-Justice P. K. Jain"
"7.4.98. Perused the counter-affidavit filed by the Commissioner, Rural Development Department, State, of Uttar Pradesh, Lucknow. Also heard him personally.
Even though the State of Uttar Pradesh is respondent No. 1 to this writ proceeding, he comes up with an excuse that the Secretary, Panchayati Raj is the only competent authority to take decision and pass appropriate orders in the matter, who has not taken any decision, whose reply is till being awaited.
We do not want to observe much at this stage in regard to the plight of ' the petitioner, who is an employee retired 10 years ago and as informed by the learned counsel is fighting for his life lying in Sanjay Gandhi P.G.I. Hospital, Lucknow.
We put assurance of the learned standing counsel Mr. Yadav on record that positive orders will be passed one way or the other within one month from today but we have no valid reasons to accept this assurance of Mr. Yadav and now for the reasons which we will record later on we command the State of Uttar Pradesh to take a decision one way or the other by 20th April. 1998.
We direct the petitioner to implead the Secretary, Panchayati Raj. Government of U. P. as respondent No. 5, Mr. Yadav accepts notice on his behalf.
Let an additional copy of the writ petition be served on Mr. Yadav. learned standing counsel in course of the day.
Let necessary corrections be made in the writ petition by the learned counsel for the petitioner in course of the day.
The relevant facts as well as the decision of the Government will be brought on the record by way of a counter to be filed on behalf of respondent No. 1.
Put up this case for further hearing on 21st April, 1998.
The personal appearance of the Commissioner, respondent No. 2 is dispensed with for the present.
Sd./- Justice Binod Kumar Roy Sd./- Justice P. K. Jain"
It was only thereafter that Sri Naseem Zaidi. posted as Commissioner. Gram Vikas, State of U. P., Lucknow filed counter-affidavit and supplementary counter-affidavit dated 7.4.1998 and 21.4.1998 and Sri Mangal Dutta Aadim, Deputy Secretary. Panchayati Raj Department. Government of U. P.. Lucknow filed short counter-affidavit dated 15.5.98
6. In the first counter-affidavit filed by Sri Naseem Zaidi, it was staled that the delay in filing the counter-affidavit occurred only because the Secretary, Panchayati Raj did not furnish necessary information with regard to the allegations made in the writ petition and he alone is competent authority to take the decision and pass appropriate orders in the matter. A letter dated 4.4.1998. copy of which is Annexure-CA-1. was sent to the Secretary, Panchayati Raj and his reply was being awaited. In the supplementary counter-affidavit, Sri Zaidi stated that in compliance with the interim order dated 7.4.98 passed by this Court, the Secretary, Panchayati Raj. Government of Uttar Pradesh was requested to finalise the petitioner's case and the Special Secretary. Panchayati Raj, U. P. Government has released the pension and gratuity to the petitioner with certain conditions because the Criminal Branch of C.I.D. was conducting the enquiry against the petitioner with regard to the alleged embezzlement of Government funds. As per order of the Special Secretary, Panchayati Raj, Government of U. P. If the petitioner was found guilty in the investigation being conducted by the C.I.D., the petitioner would be held responsible for the guilt and action would be taken against him as per orders of this Court. Copy of the order of Special Secretary, Panchayati Raj, U. P. Government is appended to the supplementary counter-affidavit as Annexure-CA-3.
7. In the counter-affidavit filed on behalf of respondent No. 1 by Sri Mangal Dutt Aadim, it was stated that an order has been passed on 18.4.98 directing the Additional Commissioner, Accounts, Village Development. U. P.. Lucknow to make payment of the pension, gratuity, amount on commutation of pension/family pension and copy of the said order has been sent to the petitioner. Since the entire amount has been paid, the writ petition has become infructuous and deserves to be dismissed with costs.
8. By order of the Court dated 7th April, 1998, Secretary, Panchayati Raj. Government of U. P. was impleaded as respondent No. 5 and after notice served upon him. counter-affidavit was filed by Sri Shyam Narain Pandey, an Engineer in Zila Parishad. Allahabad on the instructions of respondent No. 5 in which it was stated that final gratuity and pension has been released and a supplementary counter-affidavit has already been prepared for filing before the Court.
9. We have heard the learned counsel for the parties and have considered the arguments advanced by them.
10. Learned counsel for the petitioner submits that the amount of Rs. 10,855 which is admittedly due as arrears of pay, which the petitioner was entitled on revision of pay scale from January, 1986 still remains to be paid which was wrongly withheld by respondent No. 4 on misreading of various orders of other respondents and the petitioner is entitled to payment of the same with interest up to date. It is further submitted by the learned counsel for the petitioner that due to illegal, unjustified and irresponsible action of the respondents, the petitioner was deprived of enjoyment of his valuable right of getting the amount of gratuity, pension and commuted pension for a period of about 8 years and he has to suffer great financial loss and mental agony, he besides interest on the delayed payment of the amount of gratuity, commuted pension and pension, is also entitled to compensation. It is further submitted by the learned counsel for the petitioner that even though no material has been produced to counter the petitioner's version that he has not done any embezzlement and no enquiry is pending against him. yet conditional order of payment of pension, gratuity and commuted pension has been passed by the respondents. Learned Addl. Standing Counsel appearing on behalf of respondent Nos. 1, 2 and 3 submits that since the matter was being investigated and was under consideration of the Financial and Administrative Delays Committee of U. P. Legislative Council, an order of stopping payment of pension and gratuity was passed against five officers including the petitioner and such order was passed bona fidely, the petitioner is not entitled to any interest or pension. It is next submitted that since now the payment of entire dues has been made so far as respondent Nos. 1, 2 and 3 are concerned the writ petition as against them has become infructuous. Learned counsel appearing for respondent No. 4 submits that since the State Government had stayed the payment of salary, the payment could not be made and now respondent No. 4 is ready to make payment of arrears as claimed by the petitioner.
11. So far as the relief No. 1 is concerned, it is admitted fact that on revision of pay scale in January, 1986, the petitioner was entitled to Rs. 10.855 as arrears of salary. From the counter-affidavit filed on behalf of respondent No. 4, it appears that the payment of this amount was not made to the petitioner on the pretext that the State Government had stayed payment of salary to the petitioner. There is no dispute that Annexures-4, 5 and 6 are the relevant documents by which certain payments to the petitioner were stopped till decision of the Financial and Administrative Delays Committee of Legislative Council of U. P. Bare look of these documents would show that payment of pension and gratuity only payable to the petitioner and others was stayed til! further orders. There was no order to stop payment of salary which had become due to the petitioner. The petitioner has in Annexure-8 of his affidavit alleged mala fide on the part of the official of respondent No. 4 as he had detected huge embezzlement by one of the officials of respondent No. 4 and had lodged a report in this regard. The averments made by the petitioner in Annexure-8 of his affidavit have not been controverted and in his affidavit he has also stated that the payment was stopped in order to harass the petitioner. It is evident from perusal of Annexures-4,5 and 6 that the orders of the State Government/respondent Nos. 1, 2 and 3 were misinterpreted by the official of respondent No. 4 and there was absolutely no order directing stoppage of amount of salary due to the petitioner. These letters/orders directed stoppage of further payment of pension and gratuity only and not of salary. In view, of these facts, the petitioner is entitled to an order of mandamus commanding the respondent No. 4 to pay petitioner's arrears of salary amounting to Rs. 10.855 along with interest at the rate of 15% per annum from the date the amount became payable to the petitioner till it is finally paid to him. Respondent No. 4 may recover such amount of interest from the officer/official responsible for withholding the amount of salary payable to the petitioner as arrears on account of revision of pay.
12. We have already seen above that respondent Nos. 1 to 3 and 5 stopped the payment of gratuity and pension on the pretext that some enquiry/investigation was going on against the petitioner in respect of huge embezzlement of Government funds while he was posted as Additional Chief Officer, Zila Parishad. Varanasi. The petitioner has categorically averred in his petition that the petitioner did not embezzle any amount, no charge-sheet has been submitted against him and no enquiry is pending against the petitioner. This averment of the petitioner has not been specifically denied by the respondents in their counter-affidavits. They have simply stated that the matter was being enquired into by the Financial and Administrative Delays Committee. Legislative Council at State of U. P. and till a decision was taken in this regard, the payment of gratuity and pension was stopped. No document has been filed or produced before the Court showing that any such enquiry was pending or any such matter was under consideration of the said Committee of the Legislative Council of U. P. On the other hand, respondent No. 4 with his counter-affidavit filed Annexure-CA-1 the letter written by the Investigating Officer, Crime Branch, Crime Investigation Department, U. P., Varanasi. a perusal whereof shows that on completion of investigation Sri Omkar Nath Upadhyaya the then Cashier Zila Parishad. Varanasi. was found to have embezzled Rs. 8.34.102.21 paise and charge-sheet along with all the records has been submitted in the Competent Court and Pairui in the case is being done by the local police. This letter is dated 30th April, 1995 and it does not show as to when the investigation was completed and when charge-sheet was submitted. In any case, it does not appear from this document that any further investigation was going on or the petitioner was in any manner involved in the said embezzlement or any investigation was made against him. Respondent Nos- 1 to 3 and 5 have not filed any document showing that the investigation by the C.B.C.I.D. was also being done against the petitioner or th'at he was in any manner concerned with the commission of the crime except that he had lodged the First Information Report against the accused. It is really astonishing that even though Sri Umesh Chandra Tewari, Special Secretary, Panchayati Raj. U. P.. Lucknow in his letter (Annexure-CA-2) addressed to Doctor Naseem Zaidi admitted that in the records available, there was no mention of embezzlement of any amount by Sri Raj Shanker Dubey (the petitioner), yet he took the view that from the available records, innocence of Sri Dubey is not confirmed and that after thorough investigation, final decision is yet to be taken. Since no such material has been produced before the Court from which the categorical averments of the petitioner that he did not embezzle any amount nor any enquiry was pending against him could be controverted or suspected, the Court has no option but to hold that the higher authorities of the Government are taking recourse to false-hood in order to deprive the petitioner of his legal dues or to shield them against their acts of gross-negligence and complacence in disposal of petitioner's various representation on account of which he has suffered both economically and mentally. Had the amount of gratuity and commuted pension, which is now calculated at Rs. 59,400 and Rs. 75.312. been paid to the petitioner way back in 1991 or within a reasonable period from the date of his retirement, he would have earned interest on the said amount and would not have felt economically weak. Within a period of seven and a half years, this amount would have more than doubled in case it was invested in Fixed Deposit by the petitioner. In the absence of any material produced by the respondents, we are compelled to hold that respondent Nos. 1. 2, 3 and 5 stopped the payment of pension and gratuity on no legitimate grounds if not mala Jidely- Their complacence and gross negligence and shifting of responsibility from one to another has added to the Injury caused to the petitioner. We are further constrained to observe that even though there is no material against the petitioner, yet the Special Secretary, Panchayati Raj, U. P., Lucknow has passed conditional order of payment of gratuity, pension and commuted pension on pretext of the order of the Court when this Court never passed such an order and simply directed the respondents to decide the matter of payment of pension and gratuity, etc. to the petitioner. The payment to the petitioner by an order dated 18.4.98 has been made on condition that in case any criminal liability of the petitioner is found after police Investigation and the Court directs for reimbursement of the financial loss to the Government, then Sri Dubey will be liable to reimburse the same and the payment could be made to him with these restrictions. We hold that such restrictions imposed in the order of release of gratuity, pension and commuted pension are unjustified specially in view of the fact that there is absolutely no material showing that any investigation is pending against the petitioner.
13. Since the petitioner's gratuity, pension and commuted pension have already been released, and as Stated by the counsel for both the parties that the amount in terms of document'appended as Annexure-1 the short counter-affidavit filed on 6.7.98 the petitioner has been paid the amount mentioned therein, reliefs 1 and 3 claimed by the petitioner have become infructuous except that the petitioner is entitled to interest on the delayed payment of the amount of gratuity, commuted pension and pension.
14. In view of the foregoing discussions, this writ petition succeeds in part. As already held above, relief Nos. 1 and 3 have become infructuous except that the petitioner is entitled to interest on the delayed payment of the amount of gratuity, commuted pension and pension. We direct respondent Nos. 1 to 3 and 5 to pay interest at the rate of 15% per annum from the date the said amount became due to the petitioner till it is paid to the petitioner. The amount of interest shall be paid to the petitioner within 4 months from today by respondent No. 1 who will be free to realise the amount from respondent Nos. 2, 3 or 5 whosoever is found responsible for unjustified delay in payment of the said amount to the petitioner. We also direct respondent Nos. I to 3 and 5 to make regular payment of the pension to the petitioner. We'further direct respondent No. 4 to make payment of Rs. 10,855 with interest at the rate of 15% per annum from the date the amount became payable to the petitioner till it is paid by respondent No. 4 to the petitioner. This amount with interest shall be paid within 4 months from today. Respondent No. 4 may recover the amount of interest paid to the petitioner from the officer/official found responsible for withholding the payment of arrears of salary without any justification.
15. The petitioner shall also be entitled cost of this writ petition which we quantify Rs. 2,000 out of which respondent No. 4 shall pay Rs. 400 and respondent Ho. 1 shall pay Rs. 1,600.