Allowed

Alok Chandra Chaubey v. State of U.P. Thru. Its Prin. Secy. Namami Gange and Gramin Jal Poorti Vibhag Lko. and 4 Others

Allahabad HC12 May 2023/2934/2023

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the retention of Rs.1,44,437/- from the petitioner's gratuity. The Court held the recovery was unjustified as no departmental proceedings were instituted, violating Article 351-A of the Civil Services Regulations. The petitioner is entitled to the sum plus 7% interest.

What did the court decide?

Respondents directed to pay Rs.1,44,437/- along with 7% interest per annum from the date of retirement to actual payment.

Alok Chandra Chaubey Vs State of U.P… — Pension and Retirement Benefits | Allahabad HC (2023)

¶1

Neutral Citation No. - 2023:AHC-LKO:33003

¶2

Court No. - 17

¶3

Case :- WRIT - A No. - 2934 of 2023 Petitioner :- Alok Chandra Chaubey Respondent :- State Of U.P. Thru. Its Prin. Secy. Namami Gange And Gramin Jal Poorti Vibhag Lko. And 4 Others Counsel for Petitioner :- Krishna Kumar Dubey Counsel for Respondent :- C.S.C.,Rishabh Kapoor

¶4

Hon'ble Pankaj Bhatia,J.

¶5

Heard the counsel for the petitioner and Sri Rishabh Kapoor the counsel for the respondents Jal Nigam.

¶6

The present petition has been filed by the petitioner challenging the order dated 25.03.2023 whereby an amount of Rs.1,44,437/- has been retained by the respondents from the gratuity payable to the petitioner. The petitioner is also aggrieved by a portion of the order which reduces the pension payable to the petitioner from Rs.14,480/- to Rs.13,795/- on account of wrong pay fixation leading to payment of enhanced pension to the petitioner.

¶7

The counsel for the petitioner argues that the said order is bad in law for the reason that the petitioner has retired on 30.04.2021 and no order was passed against the petitioner either during the time when the petitioner was in service or subsequent thereto. He further argues that the fixation of pay and leading to consequential fixation of pension is also contrary to the law laid down by the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) reported at (2015) 4 SCC 334 . He further argues that the retention of amount of Rs.1,44,437/- from the gratuity payable to the petitioner is contrary to the provisions of the U.P. Retirement Benefit Rules 1961 and the Article 351-A of the Civil Services Regulations. He

¶8

thus, argues that the said order be quashed and the respondents be directed to pay the amount of gratuity, wrongly withheld, along with interest and prays that further directions be issued for payment of pension at an amount which was being paid to the petitioner prior to passing of the order dated 25.03.2023 i.e. at the rate of Rs.14,480/instead of Rs.13,795/-

¶9

Sri Rishabh Kapoor, the counsel for the respondents, based upon the instructions, argues that the respondents are well within their rights to appropriate the amounts paid in excess to the petitioner in terms of the powers conferred under Rule 9(1) and 9(4) of the U.P. Retirement Benefit Rules, 1961. He further argues that in terms of the Regulations 31 of 1978 Regulations framed in exercise of powers under Section 97 of the U.P. Water Supply and Sewerage Act, 1975, the benefits payable to the employees of the Jal Nigam have to be similar to the ones which are being paid to the State Government employees. He argues that on account of irregularity in payment of the pay-scales to the employees of the U.P. Jal Nigam, certain discrepancies were observed and an order dated 03.06.2020 was passed concerning all the employees, wherein it was specifically mentioned that the then authority had taken a decision for payment of the grade pay without obtaining any sanction from the Government, which was irregular and has resulted in the benefits being paid to the employees of the corporation over and above, the ones which are payable to the State Government employees and thus, the mandate of Regulation 31 of the 1978 Regulations has been violated. When the said discrepancy was noticed by the

¶10

respondents corporation, a comprehensive order was passed on 03.06.2020 to the effect that the then Managing Director had passed orders for payment of the pay-scales over and above which are payable to the State Government employees and as the said action was not in conformity with the laws and thus the steps were being taken for rectifying the errors.

¶11

It is argued that on the basis of the order dated 03.06.2020 that the earlier decision taken by the corporation on 22.06.2011 was contrary to the mandate of Regulation 31 of 1978 Regulations and same has been rectified by means of a decision taken on 03.06.2020 and as a result of the said decision, the entitlement of the petitioner to the pension has been reduced and further the amounts paid in excess quantified at Rs.1,44,437/- have been withheld.

¶12

He further argues that the validity of the order dated 03.06.2020 is under challenge before this Court in Writ-A No.17935 of 2020 (Ram Sagar Verma vs. State of U.P. and others) and although stay order has been passed staying the operation and effect of the order dated 03.06.2020, however, the writ petition has not been decided finally. In the light of the said, he argues that as and when the issue is decided, the entitlement of the petitioner shall be considered then and justifies that in the light of the powers conferred by the Retirement Benefits Rules 1961, the respondents have rightly retained part of payments from the gratuity.

¶13

In the light of the arguments raised at the bar, this court

¶14

is to decide as to whether the withholding of an amount of Rs.1,44,437/- from the gratuity amounts payable to the petitioner based upon the order dated 03.06.2020, is justified or not and whether the respondents is empowered to retain the same in terms of the provisions of the Retirement Benefits Rules 1961.

¶15

The second question that arise for determination is as to whether the respondents are justified in re-fixing the pension based upon the order dated 03.06.2020.

¶16

For considering the first point of determination, it is essential to notice the Retirement Benefit Rules, specifically Rule 9(1) and 9(4), which are quoted herein under :

¶17

"9. (1) Government will have the right to effect recoveries from a gratuity or family pension sanctioned under Parts-II and III in the same circumstances as recoveries can be effected from an ordinary pension under Article 351-A of the Civil Service Regulations.

¶18

(2) .......

¶19

(3) ......

¶20

(4) Death-cum-retirement gratuity admissible in addition to pension calculated at the rate given in the annexure shall be treated as gift and recoveries of any Government dues may be effected from the same."

¶21

A perusal of Rule 9(1) and 9 (4), makes it clear that the death-cum-retirement gratuity admissible to an employee is to be treated as gift and the recoveries of any government dues can be effected from the same. The said provision is being harped upon by Sri Rishabh Kapoor to argue that in terms of the said power, the recoveries can be effected from

¶22

the same.

¶23

To appreciate the said argument, it is essential to notice that the Rule 9(4) only empowers the ' recoveries of government dues' . The said phrase has to be interpreted to mean 'recoveries of government in accordance with law'. The mode of recovery is not prescribed and infact is restricted under Rule 9(1) which authorizes the government to effect recoveries from the gratuity in the circumstances that can be effected from an ordinary pension under Article 351-A of the Civil Service Regulation. Rule 9(1) and 9(4) read in consonance lead to inescapable conclusion that the right of recoveries and the right of adjustment granted to the government under Rule 9(4) is subject to the right of recovery in favour of the government as prescribed under Rule 9(1) of the Retirement Benefit Rules.

¶24

In view of the mandate of Rule 9(1) of the Retirement Benefit Rules, I have no hesitation in holding that the Government can initiate proceedings for recovery from gratuity only in the circumstances as provided in Article 351-A of the Civil Service Regulations, which prohibit the recovery unless the departmental proceedings is instituted that too subject to the limitations prescribed in Regulation 351-A (a)(i)(ii) and (iii) of the Regulations.

¶25

In the present case, the petitioner has admittedly retired on 30.04.2021 and no proceedings have been instituted either before the retirement or during re-employment, which fact is not disputed at the bar. Even otherwise, the recovery is sought to be effected are on account of alleged excess payment of salary in the year 2011 and onwards

¶26

which is further barred under Regulation 351-A (a) (ii) of the Civil Service Regulations.

¶27

Thus, on a conjoint reading of Rule 9(1), Rule 9(4) and the Article 351-A of the Civil Service Regulations, I have no hesitation in holding that the respondents are not justified in withholding the amount of Rs.1,44,437/- as has been done. The rights of the petitioner under Article 300-A have clearly been violated, as such, the writ petition with respect to payment of Rs.1,44,437/- withheld by the respondents is liable to be allowed.

¶28

With regard to refixation of the pension based upon the order dated 03.06.2020, the validity of the said order dated 03.06.2020 is already under challenge, as such, at this stage I am not inclined to grant any relief in respect of refixation of pension, which shall be subject to the outcome of the writ petition being Writ-A No.17935 of 2020 (Ram Sagar Verma vs. State of U.P. and others). The respondents are directed to ensure the payment of Rs.1,44,437/- to the petitioner along with 7% interest per annum from the date of retirement till actual payment/realization. The claim of petitioner with regard to pension and the benefits flowing there from shall be subject to the outcome of the writ petition, however the petitioner shall be paid the pension determined after refixation till the writ petition No.17935 of 2020 is decided.

¶29

The writ petition stands disposed off in terms of the said order.

¶30

Order Date :- 12.5.2023 [Pankaj Bhatia, J] VNP/-

¶31

Digitally signed by :- VISHVANATH PRASAD SHUKLA High Court of Judicature at Allahabad, Lucknow Bench

Alok Chandra Chaubey v. State of U.P. Thru. Its Prin. Secy. Namami Gange and Gramin Jal Poorti Vibhag Lko. and 4 Others

Case brief

What is this about?

What did the court decide?

Alok Chandra Chaubey v. State of U.P. Thru. Its Prin. Secy. Namami Gange and Gramin Jal Poorti Vibhag Lko. and 4 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rajendra Prasad Dwivedi Vs State of U.P. Thru. Prin. Secy. Deptt. Housing and Urban Planning, Lko. and Another

Adarsh Srivastva Vs State of U.P. Thru. Prin. Secy. Nagar Vikas Anubhag Bapu Bhawan Lko. and Others

Ram Gopal Tripathi Vs State of U.P. Thru. Addl. Chief Secy. Prin. Secy. Secondary Edu. Lko. and 3 Others

Indra Kumar Bajpai and 2 Others Vs State of U.P. Thru. Chief. Secy. Lko. and 5 Others

Ram Naresh Vs U.P. Forest Corporation Aranya Vikas Bhawan Thru. Chairman and 4 Others

Sarvesh Narain Mishra Vs State of U.P. Thru. Prin. Secy. Rural Engineering Deptt. Lko. and 2 Others