Dismissed

Bhagirathi v. State of U.P. and Anothers

Allahabad HC11 Feb 2020WRIA/829/2020

Case brief

AI extract

What is this about?

The court dismissed a writ petition filed by the petitioner seeking release of withheld retiral benefits. The petition was rejected on the grounds of constructive res judicata, as unrecovered financial orders against the petitioner had remained unchallenged in earlier litigation despite the petitioner's knowledge.

What did the court decide?

Prayer for release of leave encashment, CPF and security amount with interest dismissed.

Bhagirathi Vs State of U.P. and Anothers — Service and Employment | Allahabad HC (2020)

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Court No. - 81

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Case :- WRIT - A No. - 829 of 2020

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Petitioner :- Bhagirathi Respondent :- State Of U.P. And Anothers Counsel for Petitioner :- Ashutosh Tripathi Counsel for Respondent :- C.S.C.,Sushil Kumar Rao

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Hon'ble Yashwant Varma,J.

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Heard learned counsel for the petitioner, Sri Narendra Kumar Giri for the respondent-Warehousing Corporation and Sri Shubhranshu Shekhar learned Additional Chief Standing Counsel for the State respondents.

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The Court at the outset notes that certain errors have crept in its earlier order of 20 January 2020 which alludes to the challenge in the instant writ petition to be that in respect of an order of dismissal. Undisputedly the orders which form subject matter of challenge here are those of recovery made by the Corporation on the ground of alleged loss caused to it by the acts of the petitioner. Since the impugned order was passed in 2017, the petitioner was called upon to furnish a further affidavit explaining the evident laches. The petitioner has attempted to do so in terms of the supplementary affidavit filed in these proceedings pursuant to that order.

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However Sri Giri learned counsel raises a more substantial objection to the maintainability of the instant writ petition. He draws the attention of the Court to the order passed on Writ A No. 12144 of 2019 which came to be dismissed by a learned Judge of the Court on 31 October 2019 in terms of the following order:-

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"Rejoinder affidavit filed today is taken on record.

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By means of the present petition the petitioner seeks for release of leave encashment, C.P.F and security amount with interest on the premise that all orders of recovery passed against him were set aside in the case of Hinch Lal vs State of U.P., in Service Single No.29380 of 2016 which was

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filed by the petitioner along with 99 other petitioners. As on the date of filing of the present writ petition, no recovery was due against the petitioner and hence respondents cannot withhold his retiral benefits.

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In the counter affidavit, it is specifically stated that the orders of recovery passed against the petitioner which were subjected to challenge in Hinch Lal's case are appended with the writ petition, but there are other recovery orders which have been passed against the petitioner and they have not been annexed with the writ petition nor any disclosure has been made in that regard in any of the paragraphs therein.

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As many as five orders dated 15.5.2017, 17.8.2017, 19.8.2017, 6.9.2017 and 24.11.2017 have been brought on record as Annexure SCA-2 to disclose that there is outstanding recovery against the petitioner. Submission is that apart from the orders indicated above, there are other recovery orders passed against the petitioner for causing financial loss to the Corporation. None of them had been challenged by the petitioner before any higher authority or Court of law. As a result of it, the claim of the petitioner for release of retiral dues cannot be entertained.

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In the rejoinder, there is a detail with regard to the recovery orders appended with the counter affidavit but there is no denial to the fact that none of the recovery orders appended with the counter affidavit have been challenged by the petitioner. The averments in the rejoinder affidavit that the recovery shown are frivolous, therefore, cannot be accepted.

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For the facts demonstrated by the learned counsel for the respondents that orders of recovery passed against the petitioner for financial loss caused to the corporation are subsisting, prayer for mandamus to release retiral dues cannot be granted.

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The present writ petition having been filed by the petitioner by concealment of material facts, is liable to be dismissed. The writ petition is, accordingly, dismissed. "

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On the basis of that order Sri Giri contends that although the petitioner did have knowledge of the order which is sought to be impugned in the instant writ petition, no challenge thereto was raised in the earlier round of litigation. In that view Sri Giri contends that the instant petition is barred on the principles of constructive res judicata. Before this Court it is not disputed that the petitioner was fully aware of the orders of recovery including the one passed on 24 November 2017 and which is impugned in the instant petition. This fact has also come to be noticed by the learned Judge while dismissing the earlier writ petition. In that view of the matter and in the backdrop of retiral benefits having been withheld, it was clearly open to the petitioner to challenge and assail those orders of recovery. He however chose not to do so. In that view of the matter, the

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objection of the instant petition being barred on the principles of constructive res judicata itself appears to have substance.

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The instant petition for reasons aforenoted is consequently dismissed .

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Order Date :- 11.2.2020 faraz

Bhagirathi v. State of U.P. and Anothers

Case brief

What is this about?

What did the court decide?

Bhagirathi v. State of U.P. and Anothers

Case brief

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