The Court allowed the writ petition, holding that deducting managerial contribution from pension dues based on imaginary salary figures during a suspension period was impermissible. The Court ordered refund of the deducted amount with interest.
Refund of Rs.4,28,789/- along with 7% simple interest and gratuity interest within six weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Court No. - 2
Case :- WRIT - A No. - 14516 of 2018
Petitioner :- Om Prakash Tiwari Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Avneesh Tripathi Counsel for Respondent :- C.S.C.
Hon'ble Suneet Kumar,J.
Heard learned counsel for the parties and perused the record. The learned Standing Counsel has received instructions dated 20 September 2019 from the Finance Controller, Education Directorate, Prayagraj, which is taken on record.
Petitioner was appointed Head Clerk in 1970 with the third respondent- Govind Ballabh Pant Mahavidyalay, Kachhala, Badaun, a degree college duly recognized and in grant-in-aid of the StateGovernment. Petitioner came to be placed under suspension by the Managing Committee on 7 October 1984. Thereafter, vide resolution of the Managing Committee dated 4 may 1985, services of the petitioner was dispensed with. Accordingly, the proposal came to be approved by the District Inspector of Schools vide order dated 1 December 1993. The dismissal order and approval of the District Inspector of Schools came to be challenged in Writ – A No.7596 of 1994 (Om Prakash Tiwari Vs. D.D.E. and others). This Court allowed the writ petition setting aside the order of dismissal, directing re-instatement of the petitioner, further, petitioner was directed to be compensated for the financial loss. The relevant portion of the order is extracted:
“In view of the above discussion, the entire proceedings against the petitioner are vitiated by gross violation of principle of natural justice, denial of reasonable opportunity to defend and apparent violation of statute 18.02 of the first statutes of the University of Rohilkhand. The contention of the Managing Committee that the dismissal order dated 01.12.1993 was communicated to the petitioner by a registered post is not acceptable. If it was so, the Managing
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Committee would have taken the stand at the very first instance and would not have waited for 20 years to file an affidavit, that too in response of an order of this Court, taking the aforesaid stand for the first time. No proof of communication of the said order has been annexed with the affidavit filed by the respondent Managing Committee, therefore, the petitioner having specifically denied receipt of any such communication, assertion of the respondent to the contrary is rejected. It is accordingly held that no dismissal order was communicated to the petitioner. Consequently, the alleged dismissal, if any, was never effective.
In view of the above discussion the entire proceedings are declared to be illegal. The order of the District Inspector of Schools forfeiting the remaining salary of the petitioner, for the period of suspension, is set aside. The appellate order dated 25.11.1993 is set aside in toto.
Considering the lapse of 30 years since the charge sheet was issued, as also the petitioner having attained the age of superannuation on 30.09.2009, a fresh inquiry is neither feasible nor equitable.
Considering the stand of the Management that some other person had been appointed in place of the petitioner way back in the year 1983 itself, which itself is quite objectionable as in the absence of any approval of the alleged dismissal of the petitioner which itself was not effective, there was no question of engaging any other person, nevertheless, considering the said fact and also the possibility of the petitioner having engaged himself in any other employment to support his family, in my view he is not entitled to full arrears of salary, as is being claimed by him, but, a lump-sum amount of Rs.5,00,000/- would suffice as compensation for the financial loss as also other deprivations caused to him during the period he was forcibly kept out of service. He shall be treated in continuous service w.e.f. 07.10.1984 till the age of his superannuation. The respondents shall fix his last pay drawn notionally after taking into consideration the revision of pay scales etc. for the purpose of determination of post retirement benefits including fixation of pension etc. as per Rules. This exercise shall be completed by the respondents within a period of six months from the date a certified copy of this judgment is produced before the concerned authority. The amount due to the petitioner, subsequent to the aforesaid exercise, shall be released in his favour without unnecessary delay, say, within a period of three months thereafter. Consequences to follow, as per rules, accordingly.
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With the aforesaid observations, the writ petition is allowed.”
The respondents did not pay the pension and other post retiral dues to the petitioner relying upon the Government Order 23 January 2010, on the ground that the petitioner had not availed the option for pension in lieu of the Contributory Provident Fund (for short “C.P.F.”). Aggrieved, petitioner approached this Court by filing a petition being Writ-A No.3843 of 2016. This Court vide order dated 5 January 2018, quashed the order of the Director of Education. The relevant portion of the order reads thus:
“It is not in issue that on the date of issuance of government order i.e. 23.1.2010, petitioner was not in service. The writ petition filed by the petitioner against the order of removal from service has been allowed only on 8.12.2014. Prior to that date there was no occasion nor was it otherwise permissible for the petitioner to have exercised such option. This Court has otherwise found the removal order to be bad for the reasons recorded in the judgment, which has attained finality. A further direction has otherwise been issued to determine post retiral benefits including pension as per the rules. The grant of pension is a beneficial provision and it is entitlement of an employee for his services rendered previously.
In the facts and circumstances of the present case, the working of petitioner is to be treated to be continuous from the date of removal till his age of superannuation by virtue of the direction issued by this Court. Denial of benefit of pension, in such circumstances, to the petitioner would be wholly unjust and arbitrary. Admittedly, petitioner has opted for payment of pension and his claim in that regard has been accepted by the Regional Higher Education Officer. It is obvious that such option has been exercised and accepted only after passing of the judgment by this Court on 8.12.2014, and the Director of Education therefore was not justified in denying pension to the petitioner.
For the reasons recorded above, the order passed by the Director of Education dated 8.12.2015 cannot be sustained and is hereby quashed. A direction is issued to the Director of Education concerned to reconsider the issue in light of the observations made above and pass appropriate order in respect of sanction of pension to the petitioner, within a period of two months from the date of presentation of certified
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copy of this order, failing which petitioner shall be entitled to payment of interest @ 8% per annum.
Writ petition is accordingly disposed of.”
Pursuant thereof, the second respondent-Director of Education (Higher), Allahabad, vide communication dated 21 February 2018, addressed to the third respondent-Manager of the Mahavidyalay sought information/details of the managerial contribution made to the C.P.F. Pursuant thereof, the third respondent by communication dated 10 March 2018, deposited the managerial contribution at Rs.14,331/- through Bank transfer to the account of the second respondent. The contributions from 1972-73 to 1984-85 i.e. from the date of appointment to the date of dismissal was detailed by the second respondent. The petitioner vide communication dated 10 March 2018, addressed to the second respondent, consented to the deduction. Pursuant thereof, the office of the second respondent computed the pension and other post retiral dues, there after deducted Rs.4,28,789/-, inclusive of interest payable thereon, till the date of payment of pension to the petitioner. The computation has been filed at Annexure – 1 to the counter affidavit filed by the respondents 1, 2 and 3. Petitioner is primarily aggrieved by the said deduction.
Petitioner by the instant writ petition seeks following relief:
“to issue a writ, order or direction in the nature of mandamus directing the respondent authorities to reimburse the wrongly deducted amount to the tune of Rs.4,14,458/- and the interest on the said amount and also the gratuity amount in terms of the orders passed by this Hon’ble Court in two Writ Petition Nos.7595 of 1994 and 384 of 2016.”
It is urged by the learned counsel for the petitioner that deduction made from retiral dues of the petitioner is illegal and without authority of law. The respondents were entitled to make deduction of the managerial contribution had the petitioner received salary for the period 1985-2009. However, since petitioner has not received salary nor back-wages from the date of suspension to retirement, it was, therefore, not open to the
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respondent authorities to have made deduction on an imaginary figure assuming that petitioner had received the salary. The writ petition came to be allowed directing payment of pension and post retiral dues without back-wages. Rs. 5 lakh was awarded towards compensation in lieu of back-wages. In the said backdrop, it is urged that no recovery could have been made from the petitioner, without, paying the salary for the said period.
In the counter affidavit, it is averred that for the option from triple benefit scheme to the pension scheme at the government rate, the amount of managerial contribution received by the petitioner at Rs.4,28,789/-, was ordered to be adjusted from the final pension due and paid to the petitioner. It is contended that the petitioner retired on 30 July 2009 and was covered under the C.P.F. Scheme. Pursuant to Government Order dated 18 January 1993, the amount of managerial contribution received from the college alongwith interest payable was thereon deducted before releasing pension in favour of the petitioner. Paragraphs 4-f and 4-g are extracted:
“4 (f) That in compliance to the order dated 15.01.2018 of this Hon’ble Court petitioner was allowed pension at the government rate. That for the change of pension from triple benefit scheme to the pension at the government rate, amount of managerial contribution received by the petitioner under the pension in triple benefit scheme at Rs.4,28,789/- as per norms was ordered to be adjusted from the final pension due to the petitioner. The photocopy of the calculation sheet for the amount of managerial contribution so deducted is being marked and annexed as Annexure No.1 to this counter affidavit.
4 (g) That petitioner retired from service on 31.11.2009. During service period petitioner was covered under Contributory Provident Fund Scheme. That in terms of the Government Order No.7235/15-82-(1)-3(65)/80 dated 18.01.1993 pension at the government rate adjusting the amount of managerial contribution received from the college alongwith payable interest has been released in favour of the petitioner.”
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Reliance has also been placed on the communication dated 21 February 2018 seeking information with regard to managerial contribution to the extent that was payable by the petitioner.
The sole grievance of the petitioner in the instant writ petition is that the respondents were not justified in deducting at Rs.4,28,789/- from the post retiral dues of the petitioner towards managerial contribution, when admittedly no salary was received by the petitioner since the date of suspension to his retirement.
The facts inter se parties are not in dispute. The petitioner has been continuously approaching this Court from time to time for his lawful entitlement. The writ petition filed by the petitioner came to be allowed directing payment of pension. In lieu of back wages, petitioner was compensated. It is informed that the petitioner had approached this Court earlier on four occasions, the instant writ petition is the fifth round of litigation. It is not being disputed by the learned Standing Counsel that the decision rendered by this Court on 8 December 2014 has attained finality. Further, by the subsequent order of this Court dated 5 January 2018, it was clarified that the petitioner is entitled to the pension scheme as is applicable on the date of which the writ petition was allowed. Despite clarification, petitioner had to file contempt petition and finally by the conduct of the office of the second respondent, an amount of Rs.4,28,789/- was deducted. There is merit in the contention of the learned counsel for the petitioner that the managerial contribution could have been deducted only to the extent the petitioner had received salary. It is admitted position that the petitioner has not received salary since the date of his termination i.e. 4 May 1985 to the date of retirement i.e. 30 July 2009. Therefore, in the circumstances, it was not open to the respondents to have arrived at an imaginary figure on a presumption that had the petitioner received salary all throughout then the managerial contribution would be the amount deducted from the retiral dues. The
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Court had not allowed the back wages to the petitioner. In that event, the deductions were impermissible.
The stand taken in the instruction by the Finance Controller is not different from the counter affidavit filed by the respondents. It is submitted that pursuant to Government Order dated 18 January 1983, the employee is bound to deposit the managerial contribution alongwith interest to avail the pension scheme. In the given facts, the Management has deposited the contribution and interest thereon on the salary paid to the petitioner. The contention of the petitioner is that petitioner not entitled to make further contribution as he not received the salary the period he was out of service. The respondents cannot deduct from the post retiral dues on an assumption that petitioner received salary. The fact is otherwise.
Having due regard to the facts and circumstances of the case, the writ petition is allowed. The deductions made from the post retiral dues at Rs.4,28,789/- shall be refunded to the petitioner alongwith 7% simple interest from the date the sum was due. Petitioner is entitled to interest on the gratuity amount also. The order to be complied by the respondents within six weeks from the date of service of certified copy of the order.
The petitioner, in my opinion, has been subjected to persistent harassment by the respondents compelling him to file multiple petitions, the instant writ petition is fifth round of litigation, petitioner in the circumstances is entitled to cost of litigation assessed at Rs.1 Lakh to be paid by the second respondent to the petitioner.
Order Date :- 20.9.2019 Atul
2 issues framed by the court
Whether respondents can deduct managerial contribution from pension dues assuming salary receipt for suspension period when no salary was actually paid.
Whether the deduction of Rs.4,28,789/- from post-retiral dues was lawful given the petitioner received no salary during suspension.
Om Prakash Tiwari
State Of U.P.
Director of Education (Higher), Allahabad
Manager of the Mahavidyalay
Suneet Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
