Allahabad High Court
Abdul Mannan Khan vs State Of U.P. Thru. Prin. Secy. ... on 16 May, 2023
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:33841 Court No. - 7 Case :- WRIT - A No. - 30402 of 2016 Petitioner :- Abdul Mannan Khan Respondent :- State Of U.P. Thru. Prin. Secy. Co-Operative Deptt. And Ors. Counsel for Petitioner :- Vivek Kumar Srivastava Counsel for Respondent :- C.S.C.,Neeraj Chaurasiya Hon'ble Abdul Moin,J.
1. Heard learned cousnel for the petitioner, learned Standing Counsel for the respondents no. 1 & 2 and Shri Neeraj Chaurasiya, learned counsel for the respondents no. 3 and 4.
2. The instant writ petition as been filed praying for the following main relief(s):
"(i) Issue a writ of certiorari or a writ, order or direction in the nature of Certiorari quashing the order dated 9.11.2016 passed by the opposite party no.3, contained in annexure no. 1 to the writ petition.
(ii) Issue a writ order or direction in the nature of Mandamus commanding the opposite parties to forthwith release the Rs. 3,28,117/- to words gratuity amount and Rs 1,00,000/- to words provident fund alongwith 12% interests, as the petitioner had retired from the service on 30.11.2003 after attaining the age of superannuation."
3. The case set forth by the petitioner is that Shri Abdul Mannan Khan, the petitioner, was working as Branch Manager in the respondent Cooperative Bank who retired on attaining the age of superannuation on 30.11.2003. Though all dues as admissible to Shri Khan were paid yet neither death cum retirement gratuity was paid nor was bonus paid to him.
4. It is contended that on 16.11.1996 an FIR was lodged against a third person in which Shri Khan was not named. Subsequent thereto when the charge-sheet was filed Shri Khan was implicated under Section 120B IPC. It is contended that despite Shri Khan having retired in November 2003 his dues were not paid on the ground that a criminal case was pending against him. During the pendency of the instant writ petition Shri Khan died on 07.06.2022 and his wife Smt Abida Begum has been substituted as legal heir.
5. The contention of learned counsel for the petitioner is that as Shri Khan has died on 07.06.2022 as such any criminal case which was pending against Shri Khan is deemed to have abated and consequently the respondents are required to pay the entire withheld amount of death cum gratuity as well as bonus of Rs 1 lakh.
6. Learned cousnel for the petitioner has further argued that the claim of Shri Khan for payment of gratuity has been rejected vide the order dated 09.11.2016, a copy of which is annexure 1 to the writ petition, by contending that a criminal case has been lodged against Shri Khan and as such an amount of Rs 70,773.60/- payable as gratuity has been withheld. It is contended that the actual amount of gratuity as payable to Shri Khan was Rs 3,91,843.40/- as would be apparent from a perusal of the order dated 08.09.2017 issued by the respondents, a copy of which is annexure 1 to the counter affidavit dated 06.04.2018. It is stated that the respondents, despite showing the aforesaid amount, are trying to adjust an amount of Rs 3,57,301.40/- which was allegedly paid in excess in pursuance to Shamshad Award.
7. Placing reliance on the judgement of Hon'ble Supreme Court in the case of State of Punjab vs Rafiq Masih reported in 2015 (4) SCC 334 the argument is that Hon'ble Supreme Court has held that no recovery is permissible from retired employee or a class III and class IV employee after retirement and thus even if certain amount has been paid wrongly to Shri Khan, the same cannot be recovered subsequent to his retirement.
8. On the other hand, Shri Neeraj Chaurasiya, learned counsel appearing for the respondent Bank argues that keeping in view the settled position of law laid down by a full bench of this Court in the case of Shivagopal vs State of U.P. and others reported in 2019 Vol-5 ADJ 441 no gratuity is payable to an employee against whom criminal proceedings are pending and thus no error has been committed by the respondent Bank in not paying the gratuity to Shri Khan after his retirement. However Shri Chaurasiya fairly states that as Shri Khan has died on 07.06.2022 consequently the criminal proceedings are deemed to have abated against him and thus the Bank was required to release the gratuity to the petitioner subsequent thereto upon information being received about his death.
9. As regards the recovery of the amount of Rs 3,57,301.40/- from the petitioner which has been paid to the petitioner in excess, the argument of Shri Chaurasiya is that the judgement of Hon'ble Supreme Court in the case of Rafiq Masih (supra) has been considered by the Apex Court in the case of High Court of Punjab & Haryana & others vs Jagdev Singh reported in 2016 (14) SCC 267 wherein the Apex Court has held that the principle of law laid down by the Apex Court in Rafiq Masih (supra) would not be applicable where the employee concerned has given an undertaking of paying back the amount in case any excess amount is paid on account of wrong fixation. Shri Chaurasiya states that an undertaking had been given by Shri Khan on 28.12.1987, a copy of which is annexure 1 to the counter affidavit to the rejoinder affidavit dated 23.03.2022. Shri Chaurasiya argues that when Shri Khan had already given an undertaking of paying back the excess amount in pursuance of the Shamshad Award and the amount was paid and subsequently it was found that excess amount had been paid, consequently the respondents have not erred in adjusting the aforesaid amount from payment of gratuity.
10. Heard learned counsels for the parties and perused the record.
11. From perusal of record it emerges that Shri Khan was working as a Branch Manager in the Cooperative Bank. He retired on attaining the age of superannuation on 30.11.2003. Subsequent to his retirement, gratuity and bonus were not paid by the respondent bank on the ground that a criminal case is pending against Shri Khan. The full bench of this Court in the Shivagopal (supra) has held that the State Government is empowered to withhold the gratuity of an employee in those cases where a criminal case is pending. Thus, this Court does not find any infirmity in the respondents having withheld the payment of gratuity to the petitioner on the ground of pendency of criminal case more particularly when in the chargesheet that had been filed against Shri Khan, he had been implicated under Section 120B IPC.
12. However, as Shri Khan has subsequently died on 07.06.2022, the criminal case is deemed to have abated against him and as such there is no occasion for the respondents to have continued to withhold the gratuity and the same should have been paid to the legal heirs of Shri Khan subsequent to his death.
13. As regard adjustment of the excess amount, admittedly certain amount had been paid to Shri Khan in pursuance to the Shamshad award. Shri Khan had given an undertaking on 28.12.1987 indicating that in case of any wrong calculation he was willing to have the said amount adjusted. Though the Apex Court in the case of Rafiq Masih (supra) has held that recovery against class III and class IV employee or a retired employee is legally impermissible yet subsequent thereto in the case of Jagdev Singh (supra) after considering the law laid down earlier in the case of Rafiq Masih (supra) the Apex Court has held that the principles of law as laid down in the case of Rafiq Masih (supra) would not be applicable where the employee concerned has given an undertaking of paying back the amount in case the calculation etc is found to be wrong.
14. For the sake of convenience, the relevant observations of Hon'ble Apex Court in the case of Jagdev Singh (supra) are reproduced below:
"11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking."
15. When the facts of the instant case are tested on the touchstone of law laid down by Hon'ble Apex Court in the case of Jagdev Singh (supra) what emerges is that when admittedly Shri Khan had given an undertaking of paying back the amount or for adjustment of amount if paid in excess to him on account of Shamshad award, consequently the respondents are perfectly entitled to adjust the excess amount while paying the gratuity to Shri Khan or his legal heirs.
16. Accordingly, keeping in view the aforesaid discussion the writ petition is disposed of without interfering with the aforesaid order dated 09.11.2016, a copy of which is annexure 1 to the writ petition. The respondents are directed to pay the amount of Rs 70,773.60/- i.e. the amount of gratuity as indicated in the order dated 09.11.2016 to the petitioner within a period of three months from the date of receipt of a certified copy of this order. As Shri Khan has died on 07.06.2022, as such the criminal case is deemed to have abated. Consequently, the petitioner would also be entitled for payment of interest on the aforesaid amount from the date when information of death of Shri Khan was given by his legal heirs till the date of actual payment at admissible rates.
17. As regards payment of bonus it would be open for the respondents to either pay the amount, if due to the petitioner, or to indicate the reasons for non payment of bonus. In any view of the matter, the same would be indicated to the petitioner within the aforesaid time period.
Order Date :- 16.5.2023 J.K. Dinkar