Allahabad High Court
Om Veer Singh vs State Of U.P. And 3 Others on 18 November, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT - A No. - 7438 of 2014 Petitioner :- Om Veer Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- H.P. Dube,O.V. Singh Counsel for Respondent :- C.S.C.,Baleshwar Chaturvedi Hon'ble Ashwani Kumar Mishra,J.
Petitioner was appointed in the respondent corporation initially as a Petrol Man and ultimately he superannuated from the post of Line Man. As per the date of birth recorded in the service book the petitioner was liable to have retired on 30.09.2001. However, the authorities permitted him to work even thereafter on the ground that there was some interpolation. Ultimately by an order dated 06.09.2002 petitioner was made to retire with immediate effect. The order dated 06.09.2002 was challenged by the petitioner in Writ Petition No. 46164 of 2002 which was dismissed on 28.04.2011. A Special Appeal No. 1260 of 2011 filed by the petitioner was also dismissed as withdrawn. However, petitioner's retiral benefits were not released on account of which petitioner approached this Court by filing the present writ petition.
While entertaining the writ petition following orders were passed on 10.02.2014:-
"This case reflects a sorry state of affair.
The petitioner was working as a lineman with the respondent Corporation. By office memorandum dated 06.09.2002 issued by the Executive Engineer, he was made to retire with immediate effect taking his date of birth to be 01.10.1943. Challenging the said order, the petitioner filed a Writ Petition No. 46164 of 2002, which was dismissed by order dated 28.04.2011. Aggrieved by the said order, the petitioner filed Special Appeal No. 1260 of 2011. On account of pendency of the special appeal, the respondents were not finalising the pension and other retiral benefits payable to the petitioner and, therefore, under compulsion, the petitioner withdrew Special Appeal No. 1260 of 2011, which was dismissed as not pressed by order dated 08.04.2013. Even thereafter, the pension and other retiral benefits have not been paid to him and hence, the instant writ petition.
Counsel for the petitioner vehemently submitted that there is no justification on part of the respondents in not finalising the retiral benefits and pension to the petitioner, though he was made to retire in the year 2002 and 12 years have passed since then. He further contends that even if the writ petition filed by him challenging the order by which he was retired remained pending but in the meantime, it was the obligation of the respondents to have paid retiral benefits and provisional pension as per the date of birth/date of retirement recorded in the service book. He further submits that under compulsion, the petitioner had withdrawn the special appeal but since thereafter, 8 months have passed and still his pension is not being paid.
Prima facie, the submissions made by the learned counsel for the petitioner have considerable force. There is no justification on part of the respondent Corporation not to pay retiral benefits to the employee, who had retired in the year 2002. Pendency of the writ petition was not at all an obstacle in paying at least provisional pension to the petitioner as per the date of birth/date of retirement recorded in the service book. Further, even after the special appeal was withdrawn, 8 months have passed and the respondents are sleeping over the matter. Pension is not a bounty, which is paid to an employee but a right for the service rendered by an employee during the hey day of his service tenure. Non-payment of the same amounts to infringement of Article 21 of the Constitution of India.
Sri Baleshwar Chaturvedi, counsel for the respondents on obtaining instructions has stated that the provisional pension of the petitioner will be fixed by the department by 28.02.2014 and all payments will be made accordingly.
As a last opportunity to the respondents, they are directed to finalise the pension and other retiral benefits payable to the petitioner by 28.02.2014 and inform the Court by filing an appropriate affidavit giving full details.
List this matter on 3rd March 2014."
Pursuant to the orders passed by this Court the retiral benefits of the petitioner has been paid to him by the respondent. However, under an order dated 15.02.2014, the respondents have recovered a sum of Rs. 1,62,077/- from the gratuity payable to petitioner, on the ground that salary was wrongly paid to petitioner from 01.10.2001 to 06.09.2002. This order is assailed by way of an amendment filed in the present writ petition.
The sole ground raised on behalf of the petitioner is that having been allowed to work till 06.09.2002, the respondents cannot recover the salary paid to petitioner between the period 01.102001 to 06.09.2002. Reliance is also placed upon a judgment of this Court in the case of State of Punjab and others Vs. Rafiq Masih and others (2015) 4 SCC 334.
Learned counsel for the respondents, on the other hand, submits that petitioner's age of superannuation stands determined as 30.09.2001 and consequently no salary could have been paid to petitioner from 01.10.2001 onwards. The respondents have rightly adjusted such unauthorized amount paid towards salary to petitioner and its adjustment in the facts and circumstances is justified.
I have heard Sri H.P. Dubey, learned counsel for the petitioner and Sri S.K. Tripathi, learned counsel holding brief for Sri Baleshwar Chaturvedi, learned counsel for the respondents. So far as correctness of petitioner's date of superannuation as 30.09.2001 is concern, the issue stands resolved after petitioner's earlier writ petition filed in the year 2002 was dismissed. However, it is not in issue that till 06.09.2002 the petitioner was allowed to continue in the employment of the respondent under orders passed by the competent authority. The salary was paid to petitioner for the work performed by him. Even if, the age of superannuation stands determined as 30.09.2001, the respondents would not be justified in effecting any recovery of the amount already paid as salary to the petitioner, for the period when he had actually worked. The recovery of the amount already paid towards salary, therefore, would not be permissible in law. Consequently order impugned dated 15.02.2014 cannot be sustained and is quashed. The writ petition stands disposed of with the direction that withheld of gratuity amounting to Rs. 1,62,077/- would be paid to petitioner, within a period of three months from the date of presentation of a certified copy of this order.
Order Date :- 18.11.2019 Abhishek Singh