Heard learned counsel for the petitioner and Sri Shireesh Kumar, learned counsel for the respondents.
Sri Shireesh Kumar, learned counsel for the respondents, submits that he does not intend to file any counter affidavit as only a short question is involved in the instant writ petition.
Instant writ petition has been filed praying for quashing of the order dated 04.07.2014 passed by respondent no.2, a copy of which is Annexure-1 to the writ petition, to the extent it provides for withholding of an amount of Rs.2.00 Lakhs and Rs.3,91,467.21p. A further prayer is for payment of gratuity and encashment amounting to Rs.8,90,860 along with interest.
At the very out set, learned counsel for the petitioner contends that the amount of Rs.2.00 Lakhs has already been paid to the petitioner and thus the writ petition so far as it relates to prayer no.1 would survive to the extent of payment of Rs.3,91,467.21. He also contends that as the amount as indicated in prayer no.2 has also been paid, he does not intend to press relief no.2.
The case set forth by the petitioner is that he was issued a charge sheet on 18.04.2006. After the enquiry, the petitioner was imposed with penalties vide order dated 21.06.2008, a copy of which is Annexure-6 to the writ petition, whereby a recovery of Rs.3,91,467.21 was imposed upon him, one increment was stopped permanently and he was also awarded with censure entry.
Being aggrieved with the said order, the petitioner filed an appeal and the appellate authority vide order dated 21.08.2009, a copy of which is Annexure-7 to the writ petition, set-aside the order of recovery of Rs.3,91,467.21, modified the punishment of withholding of one increment permanently to two years and the censure entry was also set-aside to some extent. So far as the recovery amount of Rs.3,91,467.21 is concerned, it was indicated that if after the arbitration award, in case the petitioner is found liable for causing any loss, the amount would be recovered from him.
Learned counsel for the petitioner contends that the Arbitrator vide his award dated 30.07.2011, a copy of which is Annexure-9 to the writ petition, dismissed the arbitration proceedings. Even prior to dismissal of the arbitration proceedings, an order dated 04.08.2010 had been issued by the respondents, a copy of which is Annexure-8 to the writ petition, whereby it was directed that the amount of Rs.3,91,467.21 would be refunded to the petitioner but despite the said order, no payment has been made. Being aggrieved, the instant writ petition has been filed.
Learned counsel for the petitioner contends that once the appellate authority vide order dated 31.07.2009 has already set-aside the order of recovery of Rs.3,91,467.21 and it was made subject to the award of the Arbitrator which proceedings have also been dismissed vide order dated 30.07.2011 consequently there cannot be any occasion for the respondents to not refund the aforesaid amount.
On the other hand, Sri Shireesh Kumar, learned counsel for the respondents, on the basis of instructions submits that despite issue of recovery certificate against the miller the amount could not be recovered as such the authorities have decided to withhold the amount of Rs.3,91,467.21 and thus there is no infirmity in withholding of the said amount.
Heard learned counsel for the parties and perused the records.
From perusal of the records, it is apparent that the punishment order imposed against the petitioner on 21.06.2008 was modified by the appellate authority vide order dated 31.07.2009. So far as the recovery of Rs.3,91,467.21 is concerned, the said recovery order was set-aside. However, it was indicated that in case in the arbitration proceedings it is found that any loss has been occasioned by the petitioner, the said amount would be recovered from him. Admittedly, the arbitration proceedings have also been dismissed vide order dated 30.07.2011. Thus, once the appellate authority himself has set-aside the penalty of Rs.3,91,467.21 with a further rider that the same would be subject to the arbitration proceedings which have also been dismissed on 30.07.2011 consequently there would not be any occasion for the respondents to continue to withhold the said amount. In case despite issue of a recovery certificate the amount could not be recovered from the miller the same cannot be a ground for withholding the amount of the petitioner more particularly taking into consideration the order of the appellate authority dated 31.07.2009.
Considering the aforesaid, the writ petition is allowed. The respondents are directed to refund the amount of Rs.3,91,467.21 to the petitioner within a period of two months from the date of receipt of a certified copy of this order.
As regards the claim of interest, it would be open to the petitioner to submit a comprehensive representation to the respondents claiming the interest as per rules which would be considered in accordance with law by the respondents within the aforesaid time.
Let a certified copy of this order be issued to the parties.
Order Date :- 12.8.2021 A. Katiyar