Allahabad High Court
Dharmendra Singh Bhadauria vs State Of U.P.Thru.Secy. Forest Deptt. & ... on 16 July, 2021
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 19 Case :- SERVICE SINGLE No. - 8454 of 2021 Petitioner :- Dharmendra Singh Bhadauria Respondent :- State Of U.P.Thru.Secy. Forest Deptt. & Ors. Counsel for Petitioner :- Alok Singh Counsel for Respondent :- C.S.C.,Lakshmipat Shukla Hon'ble Chandra Dhari Singh,J.
Heard learned counsel for the petitioner, learned Standing Counsel appearing on behalf of State/opposite party no.1 and Sri Som Kartik, holding brief of Sri Lakshmipat Shukla, learned counsel for the opposite parties no.2 to 4.
The instant writ petition has been preferred for challenging the impugned order dated 17.02.2021, passed by the opposite party no.2 and impugned order dated 19.02.2021, passed by opposite party no.3 as contained in Annexure nos.1 and 2 to the writ petition. The petitioner has also prayed for a direction to the opposite parties to pay the amount of leave encashment of Rs.5,10.120/- along with 18 per cent interest on the amount of leave encashment for delayed period up to the period of actual payment.
Facts in brief are that the petitioner was appointed on the post of Scaler in the year 1981 and subsequently promoted on the post of Logging Assistant and thereafter as Deputy Logging Officer and was working under opposite party no.3 till his date of superannuation. The petitioner was superannuated on attaining the age of retirement on 30.11.2019. The petitioner has been paid entire post retiral benefits except the leave encashment, for which the petitioner has approached this Court by way of filing a Writ Petition No.17705 (SS) of 2020. The said writ petition was disposed of vide order dated 9.11.2020 and the opposite party no.2 was directed to decide the representation of the petitioner for payment of leave encashment. Vide order dated 17.02.2021, the representation preferred by the petitioner has been rejected and a recovery order dated 19.02.2021 has been issued and the petitioner has been directed to deposit Rs.12,15,422/- in the office, failing which the amount of leave encashment was ordered to be adjusted and recovery proceedings would be initiated. Both the orders are impugned in this petition. Hence, this petition.
Learned counsel for the petitioner has submitted that the impugned recovery order dated 19.02.2021 is a minor punishment as per U.P. Government Servant (Discipline and Apeal) Rules, 1999 for the reason that the recovery from pay of whole or part of any pecuniary loss caused to government by negligence or breach or orders is minor punishment mentioned in the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (for short 'Rules 1999') as well as in gross violation of Rule 351-A of Civil Service Regulation. It has also been submitted that the petitioner has submitted a detailed reply to the recovery notice on 30.12.2016 before opposite party no.4. Thereafter on 19.11.2019 the petitioner again submitted his reply against the audit objection on 19.11.2019 for the period 2012-13, 2014-15 and 2015-16 stating therein the names of employees who were responsible for the lesser production against the proposed production. The petitioner has also pointed out that Sri Harikesh Gautam was posted as Section Officer and necessary proceeding may be done. Learned counsel has submitted that after the submission of the reply, no show cause notice or any communication was made to the petitioner by the opposite parties till the date of retirement on 30.11.2019. It has also been submitted that Section 10 of the 'Rules 1999' provides procedure for imposing minor penalties but in the present case, none of the conditions have been followed before passing the impugned recovery order.
In support of his arguments, learned counsel for the petitioner has relied upon a judgment of this Hon'ble Court in the case of Ram Sewak Gupta vs. State of U.P. and others reported at 2015 (33) LCD 940 wherein it has been held that no recovery can be made from the retiral dues on the basis of audit report/objection. It is submitted that thus, the impugned orders are contrary to the law laid down by this Hon'ble Court in the case of Ram Sewak Gupta (supra) and the writ petition is liable to be allowed.
Per contra, Sri Som Kartik, holding brief of Sri Lakshmipat Shukla learned counsel for the respondents no. 2 to 4 argued that on the basis of audit report, it was determined that the petitioner caused loss to the department, however, he has not contradicted the legal point as contended by the learned counsel for the petitioner.
Admittedly, no departmental proceedings or any other enquiry is pending against the petitioner and only on the basis of the audit report, which relates to the years 2012-13, 2014-15 and 2015-16, the impugned orders have been passed.
The question involved in this petition whether solely on the basis of the audit report, can any recovery from the petitioner be made or not has already been adjudicated by this Court in the case of Ram Sewak Gupta (supra). The relevant portions of the judgment are extracted below :
"It is well established that audit report cannot be used as substantive evidence of the genuineness or bonafide nature of the transactions referred to in the accounts. As has been held by this Court in the case of Dilip Singh Rana vs State of U.P. reported in 1993 (7) SLR 706, audit is only official examination of the accounts in order to make sure that the accounts have been properly maintained according to prescribed mode and further that audit report is a statement of facts pertaining to the maintenance of accounts coupled with the opinion of the auditor and thus it can only give rise to reasonable suspicion of commission of a wrong. Merely on the basis of said audit report without the charge of causing loss being established in a full-fledged departmental inquiry, no recovery of alleged loss caused to the State Exchequer can be made.
In similar circumstances, recovery sought to be made from the gratuity of a retired government employee on the basis of some audit report was not approved by a Division Bench of this Court in the case of Radhey Shyam Dixit vs. State of U.P. and others reported in 2006 (110) FLR 101."
In view of the above, the writ petition is allowed. Orders dated 17.02.2021 and 19.02.2021 passed by the opposite parties No. 2 & 3 as contained in Annexure nos.1 and 2 to the writ petition are hereby quashed. The respondents are directed to release the withheld amount of leave encashment to the petitioner within a period of three months from the date of production of a copy of this order.
Order Date :- 16.7.2021 VNP/-