Allowed

Dilip Kumar Srivastava v. State of U.P. Thru. Prin. Secy. Dept. of Labour Govt.of U.P. Civil Secrtt. Lko and Others

Allahabad HC25 Mar 2022/782/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an order that forfeited the petitioner's retirement benefits. The Court quashed the order, directing the State to pay all retirement dues, noting the petitioner was exonerated in an inquiry and the order was passed without notice.

What did the court decide?

The impugned order denying retirement benefits was quashed. The respondent was directed to ensure payment of all retirement dues within two months.

Dilip Kumar Srivastava Vs State of U.P… — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 22

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Case :- WRIT - A No. - 782 of 2022

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Petitioner :- Dilip Kumar Srivastava Respondent :- State Of U.P. Thru. Prin. Secy. Dept. Of Labour Govt.Of U.P. Civil Secrtt. Lko And Others Counsel for Petitioner :- Shailendra Kumar Dubey,Vijay Kumar Srivastava Counsel for Respondent :- C.S.C.

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Hon'ble Subhash Vidyarthi,J.

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Heard Shri V. K. Srivastava, the learned counsel for the petitioner and Shri Parmanand Asthana, the learned Standing Counsel representing the State-respondents.

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By means of the instant writ petition, the petitioner has challenged the validity of the order dated 21-10-2021 passed by the Director, Employees State Insurance Scheme, Labour and Health Services, Sarvoday Nagar, Kanpur, whereby it has been provided that except for G.P.F. and G.I.S., the petitioner will not be provided any retiral benefits.

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On 20-06-1990, the petitioner was initially appointed on the post of Attendant on a fixed pay of Rs.450/- per month in E.S.I. Dispensary, Akbarpur, Faizabad and his services were regularized by means of an order dated 04-10-1989. On 13-091990 he was promoted to the post of 'Dresser' and while working on the said post, the petitioner retired on 31-05-2019.

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Meanwhile, on 17-02-2016, the Government had issued a letter to the Director, E.S.I. Scheme, Labour and Health Services, Kanpur, stating that the then Senior Superintendentcum-Deputy Director had made several appointments outside the purview of his post and, therefore, such appointments are irregular. The aforesaid letter directed the Director to take necessary action in the matter.

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On 09-01-2017, a charge-sheet was issued imposing as many as nine charges against the petitioner, including the charge that he had obtained the appointment under a conspiracy hatched with the illegal appointing authority Dr. A. P. Singh.

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The Inquiry Officer - Chief Medical Officer, E.S.I. Scheme, conducted an inquiry and submitted a report dated 20-08-2018 to the Director, E.S.I. Scheme, exonerating the petitioner of all the charges.

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After the petitioner had retired on 31-05-2019, on 21-102021 the Director, ESI Scheme passed an order stating that none of the charges levelled against the petitioner have been found to be proved in the inquiry report submitted by the Inquiry Officer, but from the charges levelled against the petitioner it is proved that his appointment was made by the Deputy Director-cum-Senior Medical Superintendent, E.S.I. Hospital, Sarojini Nagar, Lucknow in spite of he not being competent of for making appointment. The petitioner's appointment, therefore, is irregular and illegal. As the petitioner has retired on 31-05-2019 during continuance of the disciplinary proceedings, the Director closed the disciplinary proceedings directing that the petitioner will not be paid any retiral benefits other than G.P.F. and G.I.S.

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Shri V. K. Srivastava, the learned counsel for the petitioner has submitted that the aforesaid order dated 21-10-2021 is patently arbitrary and illegal, as the Inquiry Officer has exonerated the petitioner from all the charges levelled against him.

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The order dated 21-10-2021 has been passed in violation of Rule 9 of the Uttar Pradesh Government Servants (Discipline and Appeal) Rules, 1999, as neither any dissent note was given

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to the petitioner nor was any show-cause notice issued to him before passing the impugned order.

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Dr. A. P. Singh, who is said to be guilty of making the irregular appointment and Dr. Ashok Kumar Singh, who was also a member of the Selection Committee, are being paid pension but the petitioner's pension has been ordered to be forfeited, which action of the Government is discriminatory and is unsustainable in law.

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Sri Srivastava has placed reliance on a decision of the Supreme Court in Punjab National Bank and Others Vs. Kunj Behari Misra , (1998) 7 SCC 84, wherein it has been held that "like in the present case the enquiry report is in favour of delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard."

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He has also relied on a decision given by a Co-ordinate Bench of this Court in Writ-A No.14928 of 2021 (Jagdish Prasad Verma Vs. State of U.P. and Others) decided on 1003-2022, which was a writ petition filed by a similarly situated employee whose retiral dues were withheld on the basis of the Government Order dated 07-02-2016 (which date is wrongly mentioned as 17-12-2016 in the aforesaid order), wherein this Court has set aside the order passed by the Chief Medical Officer, Employee State Insurance Hospital, Sarojini Nagar, Lucknow stopping payment of pension to the petitioner on the basis of the aforesaid Government order dated 17-12-2016 on the ground that the appointment in question was made during the period of Dr. A.P. Singh.

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On the other hand, the learned Standing Counsel has submitted that between the years 1987-1991 Dr. A. P. Singh, the then Deputy Director-cum-Senior Medical Superintendent, E.S.I. Hospital, Sarojini Nagar, Lucknow had made illegal appointments of Class-III and Class-IV Posts in violation of the provisions contained in Service Rules, 1985. On 16-12-2020, the Director, ESI Scheme, Labour and Health Services, Kanpur had passed an order directing that payment of pension/interim pension/ gratuity and encashment of such employees should be stopped and the same would be subject to the final order to be passed by the Hon'ble Court.

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It is not disputed that the petitioner remained in service since 20-06-1989 till he retired on 31-05-2019. Having put in almost the entire productive period of his life in service of the State and the State having availed the services of the petitioner for about 30 years without any objection, it would be unfair on the part of the State to contend after the petitioner's retirement that his appointment was irregular as it was made by an officer who was not competent to issue the same. Acting on the appointment letter issued by the Government the petitioner joined the duties and started serving the State and the State continued to avail his services till he attained the age of superannuation. Thus, acting on the appointment order issued by the State authority, the petitioner acted in such a manner as cannot be undone and the petitioner cannot get back the period of his life that he had spent serving the State.

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Keeping in view this factual situation, coupled with the fact that in a detailed inquiry held against the petitioner, the Inquiry Officer has found none of the charges levelled against the petitioner to be proved. There is no justification in passing the impugned order for stopping the payment of any of the retiral

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dues of the petitioner.

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The fact that the impugned order has been passed without any notice to the petitioner after he had been exonerated of all the charges by the Inquiry Officer also makes the impugned order unsustainable in law.

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In certain situations, the failures to observe the principles of natural justice may result in quashing of the order with an opportunity to the authority to initiate the proceedings afresh and give an opportunity of hearing to the employee, but keeping in view the peculiar facts and circumstances of the case where the petitioner has already put in his entire life in service and has retired and he has already been exonerated of all the charges in the enquiry, no useful purpose will be served in giving an opportunity to the respondents to issue a fresh notice to the petitioner to show-cause against the punishment order passed against him.

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Keeping in view the aforesaid facts, the Writ Petition is allowed and the impugned order dated 21-10-2021 passed by the Director, Employees State Insurance Scheme, Labour and Health Services, Sarvoday Nagar, Kanpur, whereby it has been provided that except for G.P.F. and G.I.S., the petitioner will not be provided any retiral benefits, is quashed . The respondent no. 3 is directed to ensure payment of all retiral dues of the petitioner within a period of two months from the date a certified copy of this order is produced before him.

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Order Date :- 25.3.2022 pks

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Digitally signed by PANKAJ KUMAR SRIVASTAVA Date: 2022.03.31 12:10:29 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Dilip Kumar Srivastava v. State of U.P. Thru. Prin. Secy. Dept. of Labour Govt.of U.P. Civil Secrtt. Lko and Others

Case brief

What is this about?

What did the court decide?

Dilip Kumar Srivastava v. State of U.P. Thru. Prin. Secy. Dept. of Labour Govt.of U.P. Civil Secrtt. Lko and Others

Case brief

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What did the court decide?

What the court decided

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