Sohan Lal vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Shobhit Saharia, learned Counsel for the petitioner and Mr. Vikas Pandey, learned Standing Counsel for the State, and, with their

consent, this writ petition is disposed of at the stage of admission.

The relief sought for in this writ petition is for a writ of certiorari to quash the order dated 22.7.2019 passed by the second respondent, and the

consequential orders dated 27.7.2019 and 23.9.2019 passed by the third respondent; and for a writ of mandamus to direct the respondents to

immediately release the GPF, Gratuity and other retiral benefits of the petitioner, and to pay him pension on the basis of his last drawn salary in the

month of December, 2018.

It is the petitioner’s case that he was directly recruited and appointed as a Registration Clerk on 9.4.1984; after completion of 10 years of

service w.e.f. 09.04.1994, he was granted the benefit of one increment; after completion of 14 years of service, he was granted his first promotion in

the pay scale of Rs.4000-6000 w.e.f. 09.04.1998; after completion of 19 years of service w.e.f. 09.04.2003, he was granted his first increment in the

promotional pay scale by order dated 26.5.2006; thereafter, by proceedings dated 10.9.2008, the petitioner was granted the next promotional pay scale

on completion of 24 years of satisfactory service w.e.f. 09.04.2008 in the pay scale of Rs.6500-200-10500; by order dated 14.6.2012, he was granted

the Grade Pay of Rs.4800 on completion of 26 years of satisfactory service; as a result of a change in the Policy, by G.O. dated 02.12.2014, the

petitioner was extended the benefit of the third A.C.P., in the next promotional Grade Pay of Rs.5400/- by proceedings dated 24.7.2016; and though

the petitioner attained the age of superannuation on 31.12.2018, his retiral benefits were, however, not paid to him despite repeated reminders by him

seeking release of his retiral benefits.

While matters stood thus, the Inspector General (Registration) passed order dated 23.09.2019 directing recovery of certain amounts from the

petitioner’s pensionary benefits. Reference was made therein to certain earlier orders passed on 22.7.2019. The said order dated 23.09.2019,

served on the petitioner on 10.12.2019, disclosed that the petitioner’s date of initial appointment was changed from 09.04.1984 to 26.11.1984;

consequently, his entitlement for salary was re-computed; and the differential amount was sought to be recovered from his retiral benefits.

While reiterating that the petitioner’s date of initial appointment was 09.04.1984, and not 26.11.1984 as contended by the respondents, Mr.

Shobhit Saharia, learned Counsel for the petitioner, would submit that the impugned order dated 23.09.2019 stands vitiated for non-compliance of the

rules of natural justice; the petitioner was neither put on notice nor was he given an opportunity of being heard before the said order was passed; even

otherwise, in light of the judgment of the Supreme Court in State Of Punjab & Ors vs Rafiq Masih (White Washer): (2015) 4 SCC 33,4 the said

amount, even if it is held to have been erroneously paid, cannot be recovered from the petitioner since he is a Class III employee; and withholding of

his retiral benefits, for the past 15 months, is wholly unjustified.

On the other hand Mr. Vikas Pande, learned Standing Counsel for the State Government, would submit that the petitioner was initially appointed on

an ad hoc basis on 9.4.1984; he ceased to remain in service from 19.05.1984 till he was appointed on a temporary basis on 26.11.1984; and since, he

was not in service during the period from 18.5.1984 to 26.11.1984, that period could not have been reckoned in extending the petitioner various

benefits from time to time.

While the submission urged on behalf of the petitioner that the respondents, having kept quiet for nearly 3½ decades, cannot now recover the

amounts paid to him throughout his career, nearly 9 months after he retired from service, cannot be said to be without merit, it is unnecessary for us to

dwell on this issue, since it is not in dispute that the impugned orders were passed without putting the petitioner on notice, and without giving him an

opportunity of being heard.

Suffice it, instead of keeping the writ petition pending on the file of this Court, to treat the impugned orders as notices to show cause. The petitioner

shall, within two weeks from today, submit his reply thereto to the second respondent who shall, after considering the objections raised by the

petitioner, pass a reasoned order in accordance with law, and communicate the same to the petitioner with utmost expedition; and, in any event, not

later than four weeks from the date of receipt of the petitioner’s reply to the show cause notice. Needless to state that it is open to the petitioner

to raise all such contentions, as are available to him in law, including those urged in this writ petition, in reply to the show cause notice. The impugned

orders are set aside for violation of principles of natural justice.

The petitioner is entitled to be paid such pensionary benefits, which would be payable even if the amount, which the respondents claim are

recoverable from him, is retained by them. The respondents shall, while retaining the recoverable amount from his pensionary benefits, pay the

balance retiral dues to the petitioner at the earliest and, in any event, within one month from today. It is made clear that, in case the second respondent

is satisfied that the petitioner’s claim for payment of the retained amount is upheld, the said amount shall also be paid to the petitioner within one

month from the date on which the second respondent passes an order in compliance with the aforesaid directions. We also make it clear that we have

not expressed any opinion on whether or not the respondents were justified in recovering these amounts from the petitioner, for these are all matters

for the respondents to consider in light of the objections raised by the petitioner, and in accordance with law.

The writ petition is disposed of accordingly. No costs.

Copy of this order be furnished to the learned Counsel for the parties by 2nd March, 2020.