Allahabad High Court
Gopesh Chandra Saxena vs State Of U.P. And 2 Others on 30 May, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:98907-DB A.F.R. Reserved on : 09.05.2024 Delivered on : 30.05.2024 Court No. - 46 Case :- CRIMINAL MISC. WRIT PETITION No. - 7132 of 2023 Petitioner :- Gopesh Chandra Saxena Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Awadh Behari Singh Counsel for Respondent :- G.A. Hon'ble Siddharth,J.
Hon'ble Surendra Singh-I,J.
Per : Hon'ble Surendra Singh-I, J.
Heard Sri Awadh Behari Singh, learned counsel for the petitioner and learned A.G.A. for the State-respondents.
2. By means of this writ petition filed under Article 226 of the Constitution of India, the petitioner has made following prayer :
I. to issue a writ, order or direction in the nature of certiorari quashing the impugned first information report dated 16.04.2023 registered as Case Crime No. 199 of 2023 under Sections 409 and 420 I.P.C., Police Station- Colonelganj, District- Prayagraj.
II. to issue a writ, order or direction in the nature of mandamus directing the respondents not to arrest the petitioner pursuant to the registration of the first information report dated 16.04.2023 registered as Case Crime No. 199 of 2023 under Sections 409 and 420 I.P.C., Police Station- Colonelganj, District- Prayagraj, till any credible evidence is collected against the petitioner.
III. to issue a writ, order or direction in the nature of mandamus directing the respondents not to take any coercive action against the petitioners till the time any credible evidence is collected.
IV. to issue a writ, order or direction which this Hon'ble Court may deem fit and proper in facts and circumstances of the case.
V. award the cost of the petition to the petitioner.
3. The contents of the impugned F.I.R., in brief, are as follows :
The petitioner was initially appointed on the temporary post of Stenographer on 25.04.1979. The post of stenographer was abolished vide Government Order No. 3067/ dated 16.07.1983, a temporary post of camp clerk was created and the petitioner was appointed thereon on 17.07.1983. In the Government Order No. 3256/ dated 26.12.1995, continuation of post of camp clerk was not mentioned. Thus, the post of camp clerk was discontinued by aforesaid Government Order. Even after abolition of aforesaid post, the then Patal Prabhari misused his post of Incharge of that seat and kept the Chief Development Officer/Executive Director, Fish Farmers Development Agency, Prayagraj, who had the financial and administrative power of department, in dark and from 26.12.1995, without any Government Order extending the continuance of the post, illegally continued on the post of Camp Clerk/Senior Clerk till his date of superannuation on 31.07.2015 and illegally withdrew salary and allowances on that post. The appellate authority, Deputy Labour Commissioner, Prayagraj on the appeal of respondent no. 3 vide order dated 22.12.2022 held that the petitioner is not entitled for gratuity on the post as he has illegally continued on the post of camp clerk since 1995 to 2015. The Director Fisheries, U.P., Lucknow vide letter no. 2054/स्था०शा०/कोर्ट केस/ dated 06.07.2022, directed the Chief Development Officer/Executive Director, Fish Farmers Development Agency, Prayagraj, to take suitable action against the petitioner for his continuing on the post of camp clerk from 1996 to 2015 although the post was abolished on 26.12.1995. In compliance of aforesaid order of the Director Fisheries, U.P., Lucknow, the Chief Development Officer, Prayagraj directed respondent no. 3 to take necessary action against the petitioner for misuse of the office/seat (patal). In compliance of aforesaid order of Chief Development Officer/Executive Director, Fish Farmers Development Agency, Prayagraj, the respondent no. 3 lodged the impugned F.I.R. dated 16.04.2023 against the petitioner.
4. It has been submitted by learned counsel for the petitioner that impugned first information report dated 16.04.2023 has been registered against the petitioner, Gopesh Chandra Saxena, as Case Crime No. 199 of 2023 under Sections 409 and 420 I.P.C., Police Station- Colonelganj, District- Prayagraj, without any ground and due to malafide. No case under the aforesaid sections is made out against the petitioner. It has been next submitted that the petitioner was initially appointed as a Stenographer on 25.04.1979. The post of Stenographer was abolished on 16.07.1983 and further the post of Camp Clerk/Senior Clerk was sanctioned. On the same day, the petitioner was posted as camp clerk and allowed to continue to work accordingly. However, the post of camp clerk was not extended and the petitioner was allowed to continue on the post of Camp Clerk/Senior Clerk sanctioned in the department. It has further been submitted that the allegations that keeping the authorities in dark, he illegally continued on the post of camp clerk from 1995 to 2015 is not supported from the record of the authorities sanctioning the post. Therefore, no offence u/s 409 and 420 I.P.C. is made out against the petitioner. It has also been submitted that in the judgement dated 20.12.2022 of the appellate authority, i.e. Deputy Labour Commissioner, Prayagraj, no consideration of allegation about sanction of posts was done as the case related merely to payment of gratuity to the petitioner. The petitioner who was appointed as Stenographer on 25.04.1979, after abolition of the post of Stenographer in the department on 16.07.1983, without any break in continuance was absorbed/posted on the post of camp clerk. Since the post of camp clerk was not extended after 26.12.1995, hence, the petitioner was allowed to continue on the post of Camp Clerk/Senior Clerk in the department till the date of retirement. After completing 10 years of continuous satisfactory service on the post of Camp Clerk/Senior Clerk, the petitioner was provided next increment on the recommendation of Samta Samiti vide order dated 18.03.1991 (copy of the order has been provided at Annexure No. 2 to the instant writ petition). It has also been submitted that vide Government Order dated 03.06.1989, the petitioner was provided the next promotional payscale on 27.01.1996 on the post of Camp Clerk/Senior Clerk after completing six years of continuous satisfactory service (copy of the order has been provided at Annexure No. 3 to the instant writ petition). It is further submitted that Government Order dated 28.12.1990 provided the benefit of revised pay to the employees of the department in which the post of camp clerk has been shown to be Camp Clerk/Senior Clerk (copy of the Government Order dated 28.12.1990 has been attached as Annexure No. 4 to the instant writ petition). Since the post of camp clerk was already sanctioned by the department, hence, after abolition of the post of Camp Clerk, the petitioner was allowed to continue in the capacity of Camp Clerk/Senior Clerk and provided the benefit of revised pay accordingly. The order dated 20.12.2022 passed by the appellate authority relates to payment of gratuity and has not given any finding to the effect that the petitioner kept the higher authorities in dark and continued on the post which was discontinued on 26.12.1995 (order of appellate authority is annexed as Annexure No. 5 to the instant writ petition). Since the petitioner continued on the post of Camp Clerk/Senior Clerk from 1995 till retirement i.e. 31.07.2015, he has claimed the benefit of assured career progression (A.C.P.) scheme in his writ petition No. 3057 of 2019. The aforesaid writ petition is till pending and this issue has not yet been adjudicated by the High Court. Thus, the F.I.R. on allegation of continuance of non-sanctioned posts cannot be lodged. The appointing authority never questioned this issue during his service period and it has been raised after about 8 years of his superannuation when he claimed post-retiral benefits. It has been further submitted that allegation in the first information report with regard to manipulation of petitioner working on the seat (patal) of establishment is unfounded and baseless. The petitioner was never having charge of seat (patal) of establishment. In 1991, the charge of seat of establishment was with one B.D. Vais. Thereafter, in 1995, the charge of establishment was with Smt. Geeta Sonkar. In 2010, the charge of establishment was with Smt. Tahasin Jahara, the senior clerk. As such at no point of time, there was any charge of seat of establishment with the petitioner. Hence, there was no question of manipulation with the higher authorities for continuance of service (Copy of orders dated 05.09.1991, 06.03.1995 and 24.12.2010 giving charge of seat of establishment to the aforesaid employees is attached as Annexure No. 6 to the instant writ petition). It has also been submitted that after 1995, the petitioner has been allowed to continue in the service as a Camp Clerk/Senior Clerk by the respondent authorities and he has been paid the benefits of 6th pay scale etc. mentioning the post of Camp Clerk/Senior Clerk by the respondents themselves (Copy of order providing benefit of fixation of 6th pay scale and annual increments sanctioned on the post of Camp Clerk/Senior Clerk dated 05.07.2013 and 21.11.2012 is attached as Annexure No. 7 to the instant writ petition). It is further submitted that in compliance of High Court's order dated 23.02.2015 passed in Writ Petition No. 10397 of 2015, Gopesh Chandra Saxena Vs. State of U.P. and 3 others, vide Government Order No. 1038/सत्रह-म-2015, 6-5(77)/2014 लखनऊ, दिनांक 22 जून 2015, the government had raised the retirement age of the petitioner from 58 years to 60 years and consequently in place of date of superannuation on 31.07.2013, he was permitted to continue on his post till his date of superannuation on 31.07.2015. It has also been submitted that since the petitioner continued on the post of Camp Clerk/Senior Clerk vide aforesaid government orders, therefore, it shall be presumed that he was legally holding the post till his date of superannuation on 31.07.2015. Since there was no entrustment and no misappropriation, therefore, offence u/s 409 and 420 I.P.C. are not attracted against the accused.
5. Per contra, in the counter affidavit on 07.08.2023, respondent no. 3 has reiterated the allegations made in the first information report against the petitioner that after abolition of the post of Stenographer on 26.12.1995, the petitioner keeping the higher authorities in dark, illegally continued on the post of Camp Clerk/Senior Clerk till his date of superannuation on 31.07.2015 and withdrew the pay and his allowances without any authority. The respondent no. 3 has attached Annexure No. C.A.1 to his petition which is letter dated 16.07.1983 sent by Deputy Secretary of U.P. Government to Director, Fisheries Department, U.P., Lucknow to the effect that vide G.O. No. 1347/12-ई-3-82, दिनांक 20 अप्रैल, 1982 informing that earlier post created in the payscale of Rs. 515-840/- of 17 temporary stenographers, is abolished. In its place, 17 temporary posts of camp clerks is created. The respondent no. 3 has also denied the averment made in the affidavit filed by the petitioner and has filed Annexure No.C.A.1 to his counter affidavit. It has been submitted that the petitioner has wrongly stated that after the abolition of post of Stenographer on 16.07.1983, the post of Camp Clerk/Senior Clerk was sanctioned whereas after abolition of the post of Stenographer, the temporary post of Camp Clerk was created. No post of Senior Clerk was created as alleged by the petitioner. It has also been submitted that the Deputy Labour Commissioner, Prayagraj has allowed the Appeal No. 01 of 2022 filed by the respondent no.3 and has held that the petitioner is not entitled to payment of any gratuity. In the counter affidavit, the averment of petitioner has been denied that the post of Camp Clerk was extended after 01.03.1996. It has been submitted by means of Government Order dated 26.12.1995 that the post of Camp Clerk was extended upto 01.03.1996 and thereafter, the said post of Camp Clerk was not extended. Therefore, petitioner was not entitled to continue on the aforesaid post after 01.03.1996. It has been denied that the petitioner was allowed to continue on the post of Camp Clerk/Senior Clerk. It is stated that the post of Senior Clerk is a promotional post which is filled up only and only by the deputed government employees by the Deputy Director in the office of Fish Farmers Development Agency, Prayagraj. The petitioner has played fraud at this juncture because he being the Camp Clerk, was the custodian of that particular file of appointment and deputation. The Government Order dated 26.12.1995 was earmarked to the petitioner and Smt. Geeta Sonkar (Junior Clerk) by the Chief Executive Officer to put up the same before the Chief Development Officer/Executive Director, Fish Farmers Development Agency, Prayagraj to implement the said government order but the same was never presented by them before the Executive Director, Fish Farmers Development Agency, Prayagraj as both of them were similarly situated on an absolutely temporary post which was extended year to year by means of respective government orders. The petitioner was provided the next increment on the recommendation of Samta Samiti vide order dated 18.03.1991 while he was discharging duties as the Camp Clerk and not the Senior Clerk which is a promotional post and filled by the deputed government employees only. The respondent no. 3 has filed government letter dated 28.05.1997 as Annexure No. C.A.2 to the counter affidavit whereby various kinds of 11 posts in Fisheries Department were extended till 29.02.1996 and 28.02.1998 respectively. Smt. Geeta Sonkar was directed by the respondent no. 3 to apprise the Chief Development Officer about the aforesaid government orders. It has been submitted that earlier petitioner was holding seat of establishment and thereafter, Smt. Geeta Sonkar held that seat and they illegally kept those documents for more than 10 years in their possession and did not hand over to the Chief Development Officer/Executive Director, Fish Farmers Development Agency, Prayagraj, for necessary action. The petitioner was never allowed to continue as a Senior Clerk which is a promotional post and filled only by government deputed employees. Thus, there is sufficient prima facie evidence that the petitioner has committed the offence u/s 409 and 420 I.P.C. and the petitioner has misappropriated Rs.37,65,013/- illegally as salary and allowances for the post of Camp Clerk/Senior Clerk to which he had no authority to continue.
6. The petitioner in rejoinder affidavit dated 12.07.2023 has denied the averments made in the counter affidavit and reiterated the averments made by him in his petition and has submitted that he was allowed by the competent authority to continue as Camp Clerk/Senior Clerk and he has not made any illegal withdrawal of salary and allowances. He has also submitted that since he has filed the writ petition claiming payment of gratuity allowance, the impugned F.I.R. was lodged with malafide against him.
7. On 23.05.2023, following interim order was passed by this Court :
1. Heard Shri Awadh Behari Singh, learned counsel for the petitioner and Shri Sushil Jaiswal, learned State Law Officer, appearing for the State.
2. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 16.04.2023 registered as Case Crime No. 199 of 2023, under Sections 409 and 420 IPC, Police Station Colonelganj, District Prayagraj and a direction to the respondent authorities not to arrest the petitioner in pursuance of the impugned first information report.
3. Submission of the learned counsel for the petitioner is that no offence whatsoever has been made out in the present case. There is no dispute about the fact that initial appointment of the petitioner was absolutely valid and even as per the first information report and allegations in respect of the period of starting from 1995 to 2015 it is submitted that during this period the petitioner continued on various posts to the full satisfaction of the employer and a dispute regarding gratuity was also raised in this respect and it is only after eight years of his retirement when he had claimed his dues and this first information report has been lodged. Submission, therefore, is that ingredients of offence under Section 409 I.P.C. are not fulfilled.
4. Matter requires consideration.
5. In view of the statement made by learned counsel for the petitioner that respondent no. 3 was represented by the State in the civil matters, we direct the learned A.G.A. to accept the notices on behalf of respondent no. 3 as well and represent respondent no. 3.
6. All the respondents may file counter affidavit within four weeks. The petitioner shall have three weeks, thereafter, to file rejoinder affidavit.
7. List thereafter before the appropriate Bench.
8. Till the next date of listing or till submission of police report under Section 173(2) Cr.P.C., whichever is earlier, the respondents are restrained from arresting the petitioner pursuant to the aforesaid FIR subject to cooperation in ongoing investigation.
8. From the averments made in the impugned F.I.R., the pleadings of the parties and arguments advanced on behalf of the learned counsel for the petitioner and learned A.G.A., the admitted fact emerges that the petitioner, Gopesh Chandra Saxena, was initially appointed on the temporary post of stenographer on 25.04.1979 in Fish Farmers Development Agency, Prayagraj. The post was continued till 16.07.1983. Thereafter, the petitioner continued on the temporary post of Camp Clerk/Senior Clerk till 26.12.1995 and thereafter he was allowed to continue on the post of Camp Clerk/Senior Clerk till his date of superannuation on 31.07.2015.
9. In State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335, the Hon'ble Apex Court has narrated the categories of cases wherein the extraordinary power under Article 226 or the inherent powers under Section 482 Cr.P.C. can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice :
"...though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised :
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
10. In Maratt Rubber Ltd. Vs. J.K. Marattukalam, (2000) 9 SCC 547, the Apex Court has held that the power of quashing criminal proceedings should be exercised stringently and with circumspection. This inherent jurisdiction has to be cautiously exercised to prevent the abuse of the process of Court or gross miscarriage of justice and to secure the ends of justice.
11. While considering the quashing of F.I.R., the Court is not bound to consider only the averment made in the F.I.R. but it can also take into consideration the evidence collected during investigation as well as other undisputed admitted documentary evidence produced by the petitioner and the respondent.
12. In the light of the law laid down by the Apex Court and the pleadings of the parties and arguments advanced by their learned counsels, it is desirable to consider the legality of impugned F.I.R. lodged against the petitioner.
13. In the counter affidavit dated 22.06.2023 filed by Investigating Officer, S.I. Rajendra Kumar, Annexure No. 1 is attached which is CCTNS case report regarding petitioner. From the perusal of the report, it transpires that only one criminal case is registered against him.
14. A counter affidavit dated 07.08.2023 has been submitted on behalf of respondent no.3, Sri Irfanullah Khan, Chief Development Officer/Executive Director, Fish Farmers Development Agency, Prayagraj which consists of two annexures. Annexure No. 1 attached to the counter affidavit is letter dated 16.07.1983 by Kumari Neeta Chaudhary, Deputy Secretary, Government of U.P. to Director, Fisheries Department, U.P., Lucknow. According to this letter vide G.O. No. 1347/12-ई-3-82, दिनांक 20 अप्रैल, 1982, intimating that posts of 17 temporary stenographers was discontinued and 17 temporary posts of Camp Clerks were created. Annexure no. 2 is the letter dated 26.12.1995 issued by Satya Prakash Sharma, Deputy Secretary, Government of U.P. to Director Fisheries Department, U.P., Lucknow. It mentions that vide G.O. No. 2627/57-म-93-10-1-81 दिनांक 30.9.93, 11 temporary posts including that of Senior Clerk in the payscale of 1200-2040 has been sanctioned for the year 1994-95 to 1995-96 which shall continue till 29.02.1996. From the perusal of the aforesaid two annexures attached to the counter affidavit dated 07.08.2023, it transpires that the temporary posts of stenographers which were discontinued on 16.07.1983 were replaced by temporary posts of Camp Clerks in Fish Farmers Development Agency, District- Prayagraj (then Allahabad). From perusal of Annexure No. 2, it transpires that in 17 districts of U.P. including Allahabad, vide Government Order dated 30.09.1993, the government had sanctioned apart from other posts, the posts of Senior Clerk in the payscale of 1200-2040 to be continued till 29.02.1996. Thus, it appears that after discontinuance of the post of stenographer, the post of stenographer was replaced by temporary post of Camp Clerk and Senior Clerk in Prayagraj and the petitioner continued on these newly created posts after discontinuance of the post of stenographer.
15. The petitioner has filed Annexure Nos. 1 to 8 attached to the writ petitions which are documents consisting of certified copy of impugned F.I.R. (Annexure No.1), office order dated March 18, 1991 issued by Chief Development Officer/Executive Director, Fish Farmers Development Agency, Prayagraj, on completion of 10 years satisfactory service sanctioning pay scale of 1200-2040 w.e.f. 29.04.1989 to petitioner, Gopesh Chandra Saxena, mentioning that the next increment shall accrue to him on 01.07.1989 (Annexure No.2), office order dated January 27, 1996 issued by Chief Development Officer/Office Chairman (Administration), Fish Farmers Development Agency, Prayagraj, after six years of satisfactory service promoting the petitioner and sanctioning the next pay scale of 1350-2200/- to the petitioner (Annexure No. 3), government letter dated 28.12.1990 relating to fixation of pay scale of 1200-2040/- to the post of Senior Clerk of Fisheries Department on the recommendation of Samta Samiti (Annexure No. 4), order of Chief Development Officer/Executive Director, Fish Farmers Development Agency, Prayagraj, fixing the payband and grade pay of the petitioner from 01.01.2006 to 01.07.2012 on the basis of Government Order No.वे०आ०-2-1318/10गस-59(एम)/2008 दिनांक 08.12.2008, and Government Order No. 2616/सत्रह-मा०-2012-10-5 (8)/98 टी०सी० दिनांक 21.11.2012 (देय 21.11.2012 से), order dated 05.07.2013 of Assistant Director, Fisheries/Chief Executive Officer, Fish Farmers Development Agency, Prayagraj, fixing payband of 5200-20200/- in the grade pay of 2800/- w.e.f. 01.07.2013 to the petitioner on the post of Camp Clerk/Senior Clerk on the basis of Government Order No 2616/सत्रह-मा०-2012-10-5 (8)/98 टी०सी० दिनांक 21.11.2012 (Annexure No. 7). The petitioner has filed Annexure No. 6 to his writ petition which consists of office orders dated 05.09.1991, 06.03.1995 and 24.12.2010 issued by Chief Development Officer/Executive Director, Fish Farmers Development Agency, Prayagraj issuing counter to the staff of his office on different seats.
16. From perusal of Annexure No. 4, it transpires that vide aforesaid Government Order dated 08.12.1990, the grade pay of 1200-2040/- was sanctioned for the post of Camp Clerk/Senior Clerk. From the perusal of aforesaid Annexure No. 2, it transpires that on the basis of recommendation of Samta Samiti, after 10 years continuous and satisfactory service, the petitioner was sanctioned the grade pay of 1200-2040/- from 01.07.1988. The next increment was payable w.e.f. 29.04.1989. From the perusal of Annexure No. 3, it transpires that as per office order dated January 27, 1996, after six years of continuous and satisfactory service, the petitioner was promoted to next grade pay of 1350-2200/-. From the perusal of aforesaid Annexure No. 7, it transpires that in compliance of Government Order No. वे०आ०-2-1318/10गस-59(एम)/2008 दिनांक 08.12.2008 and Government Order No. 2616/सत्रह-मा०-2012-10-5 (8)/98 टी०सी० दिनांक 21.11.2012 (देय 21.11.2012 से), w.e.f. 01.01.2006, the petitioner was sanctioned payband of Rs.12,790/- and grade pay of 2800/- which included increments admissible each year from 2006 to 2012. From 01.07.2012, his payband was fixed as Rs.16,410/- in the grade pay of 2800/-. From Annexure No. 7, it is also conspicuous that in compliance of Government Order dated 2616/सत्रह-मा०-2012-10-5 (8)/98 टी०सी० दिनांक 21.11.2012 w.e.f. 01.07.2013, after increments, the petitioner's payband was fixed as Rs. 5200-20200/- in the grade pay of 2800/-. In their counter affidavits, the respondents have not filed any documentary evidence in rebuttal of aforesaid documents filed by the petitioner as annexures to his writ petition. Therefore, it can be concluded that after discontinuance of the post of stenographer, the petitioner was permitted to continue on the post of Camp Clerk/Senior Clerk and he was sanctioned various scales after completion of 10 years and after further completion of six years of continuous and satisfactory service, the petitioner's pay scale was also revised as per Government Order dated 08.12.1990 as per letter dated 28.12.1990 issued by Deputy Secretary, U.P. Government to Director, Fisheries, U.P. Lucknow.
17. From perusal of Annexure No. 8 to the writ petition, it transpires that vide Government Order No. 1038/सत्रह-म-2015, 6-5(77)/2014 लखनऊ, दिनांक 22 जून 2015, the retirement age of the petitioner was increased from 58 to 60 years and after his retirement on 31.07.2013, he was permitted to again continue on his post till 31.07.2015. Thus, it appears that petitioner was duly authorized by competent authorities to continue and draw salary on the post of Senior Clerk till his date of superannuation on 31.07.2015 when the post of stenographer/Camp Clerk was discontinued after 26.12.1995.
18. Averment has been made by respondent no. 3 in his counter affidavit that the petitioner was Incharge of the seat (patal) of establishment and he received the letter regarding discontinuance and abolition of the post of stenographer but he did not bring these letters/orders in the cognizance of the respondent no. 3, Chief Development Officer/Executive Director, Fish Farmers Development Agency, Prayagraj. Therefore, he misused his post as Incharge of establishment and kept the authorities in dark and thereby illegally continued and drew salary and allowances on the post of Camp Clerk/Senior Clerk.
19. The petitioner has filed work distribution order dated 05.09.1991, 06.03.1995 and 24.12.2010 issued by respondent no. 3, Chief Development Officer/Executive Director, Fish Farmers Development Agency, Prayagraj as Annexure No. 6 to the writ petition. From the perusal of aforesaid order dated 05.09.1991, it transpires that from this date, Sri B.D. Vais was made Incharge of the seat (patal) of establishment and also correspondence relating to establishment and general administration. On perusal of aforesaid order dated 06.03.1995, it transpires that Smt. Geeta Sonkar, Junior Clerk was made Incharge of the seat (patal) of the establishment. On perusal of the aforesaid order dated 24.12.2010, it transpires that Smt. Tahasin Jahara, the Senior Clerk was made Incharge of seat (patal) of establishment. Thus, it transpires that at the time of abolition of post of Camp Clerk on 26.12.1995 and thereafter, petitioner did not hold the post of Incharge of seat (patal) of establishment. Therefore, there was no occasion for him to have the custody of the letter which communicated the discontinuance/abolition of the post of Camp Clerk. Therefore, there is no force in the allegation of respondent no. 3 that by not placing the aforesaid letter before respondent no. 3, the petitioner illegally continued on and drew salary and allowances of the posts of Camp Clerk/Senior Clerk, thus committing cheating, fraud and misappropriation of public money.
20. From the above discussion, we are of the considered view that the registration of impugned F.I.R. against the petitioner is misuse of law and it is liable to be quashed in the interest of justice.
21. The impugned first information report dated 16.04.2023 registered as Case Crime No. 199 of 2023 under Sections 409 and 420 I.P.C., Police Station- Colonelganj, District- Prayagraj, is hereby quashed.
22. Accordingly, the writ petition is allowed.
Order Date :- 30.05.2024
KS
(Surendra Singh-I,J.) (Siddharth,J.)