Allowed

Rama Shankar Yadav v. State of U.P. and Others

Allahabad HC27 Sept 2019WRIC/7076/2009

Case brief

AI extract

What is this about?

Petitioner challenged recovery proceedings under the U.P. Public Money (Recovery of Dues) Act initiated after service termination. Court held that since the Handloom Corporation was not listed in the relevant notification empowering financial corporations to recover dues, the recovery certificate was not sustainable in law and proceedings were quashed.

What did the court decide?

Recovery certificate dated 25th August, 2008 and recovery proceedings initiated pursuant thereto are quashed.

Rama Shankar Yadav Vs State of U.P. and… — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 1

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Case :- WRIT - C No. - 7076 of 2009

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Petitioner :- Rama Shankar Yadav Respondent :- State Of U.P. And Others Counsel for Petitioner :- R.S. Kushwaha,Ajay Kumar Yadav Counsel for Respondent :- C.S.C.,S.N. Singh

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Hon'ble Ramesh Sinha,J. Hon'ble Ajit Kumar,J.

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List is being revised. Sri S.N.Singh, learned Senior Advocate representing U.P.Handloom Corporation, respondent no. 2 is not present.

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On earlier occasion on 19.9.2019 an adjournment was sought by Sri S.N. Singh, learned Senior Advocate on the ground that his file was not traceable and he was not having his file. Accordingly, this Court accommodated him and granted adjournment on the day directing the case to come up 'peremptorily' in the next cause list. However, till date no counter affidavit has been filed by the respondent no. 2 despite sufficient opportunity. Today, the case is on Board in the category of peremptorily listed matters, hence we proceed to decide the matter after hearing Sri R.S. Kushwaha, learned counsel for the petitioner and learned Standing Counsel for the State.

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By means of present writ petition, the petitioner has questioned the legality in the recovery proceedings instituted against him under the U.P. Public Money (Recovery of Dues) Act, 1972 and consequential recovery certificate forwarded to District Magistrate on 25.8.2008.

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The argument advanced by learned counsel for the petitioner is that petitioner has been held to be guilty in discharge of his onerous duty as Senior Official Clerk in the commerce department of the Corporation

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and he was found guilty of financial irregularities in the matter relating to the sale centres of the Corporation. It is in enquiry conducted into the affairs of the sale centres that the charges were found to be proved and, consequently, the petitioner was held guilty of the loss caused to the Corporation. Result was that petitioner's services stood terminated vide order dated 20th January, 1997 and the direction was issued for the recovery of the loss caused to the Corporation due to misconduct on the part of the petitioner. It is pursuant to the said order dated 20th January, 1997 that respondents have proceeded to recover the amount. However, in the meanwhile, petitioner has also raised industrial dispute which is still pending under the U.P. Industrial Disputes Act, 1947 and application submitted by the petitioner in this regard dated 29th January, 2009 has been filed alongwith this writ petition as one of its annexure.

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Learned counsel for the petitioner in support of his argument submitted that if the petitioner has been held guilty for any loss of the Corporation on account of misconduct on his party, the recovery could not be pursued taking recourse to the provisions as contained under the U.P. Public Money (Recovery of Dues) Act, 1972 and in support of of his contention he has placed notification dated July 30th, 1975 wherein various financial Corporations have been enlisted in respect of which recovery can be pursued taking recourse to the provisions under the Act, 1972.

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From the perusal of the notification, we find that item no. 15 of U.P. State Handloom and Powerloom Financial and Development Corporation Ltd. has been enlisted. However, petitioner submits that he was not an employee of the financial corporation as styled at

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item no. 15 of the notification, instead he was an employee of the U.P. Handloom Corporation Ltd, a Corporation dealing with manufacture of cloths in a hand-loom set up. In such view of the matter, he contents recovery instituted against the petitioner is absolutely illegal and cannot be sustained in law.

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Countering the submissions learned Standing Counsel representing the Collector/District Magistrate submitted that Collector has to simply act on the recommendations of respondent no. 2 as recovery certificate got forwarded to the Collector under the Act, 1972. His duty, it is contended, is to only realize the dues sought to be recovered. However, he submits that if the U.P. Handloom Corporation cannot take recourse to the provisions under the Act, 1972 for the purpose of recovery of an amount which has been imposed as penalty under the service rules then it is clearly an action relating to a charge pertaining to duties of employee that he has failed to discharge and call for an action under service law. He submits that if procedure adopted by Corporation for recovery is held illegal and recovery certificate cannot be sustained in law, Collector shall not proceed to take coercive members nor, shall proceed with recovery any further.

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Learned Standing Counsel has taken us to paragraphs 9 and 10 of the counter affidavit, in which it has been clearly averred that the Collector has received recovery certificate against the petitioner relating to the charges of embezzlement and that recovery proceedings have been initiated only pursuant to the recovery certificate.

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Having heard learned counsels for the parties and the arguments advanced across the bar and, having perused the record, we are of the considered opinion

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that once the petitioner has been found guilty in discharge of his duties as an employee of the Handloom Corporation, he has been indicted in the charge of misconduct, therefore, penalty could have been imposed. But recovery could not have been pursued by the Corporation as a financial corporation as if some loan was advanced and there accrued financial liability upon the party. Further having found that U.P. Handloom corporation not to list at item no. 15 of the notification dated July 30th, 1973 the recovery certificate issued under the Act, 1972 cannot be sustained in law.

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We are of the clear opinion that recovery certificate could not be prepared and forwarded by the 2nd respondent to the 3rd respondent , however it could have adopt some other mode for the recovery of penalty amount like making recovery from funds/ dues etc. Thus recovery proceedings pursuant to the recovery certificate and the recovery certificate dated 25th August, 2008 are hereby quashed.

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The writ petition stands allowed as above.

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Order Date :- 27.9.2019 Sanjeev

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(Ajit Kumar,J.) (Ramesh Sinha,J.)

Rama Shankar Yadav v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

Rama Shankar Yadav v. State of U.P. and Others

Case brief

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