1. Heard learned counsel for the petitioner and learned Standing counsel appearing for the State-respondents.
2. With the consent of learned counsels for the contesting parties, the instant writ petition is being finally decided.
3. Under challenge is the order dated 17.07.2019, a copy of which is annexure 1 to the petition by which the respondent no. 6 i.e The Commandant, 37th Bn, P.A.C, Kanpur has required the District Magistrate, Lucknow to order the Chief Treasury Officer, Lucknow to recover an amount of Rs. 98,599/- from the dues of the petitioner taking into consideration the audit objection in this regard.
4. Learned counsel for the petitioner contends that initially the respondents had issued an order dated 19.08.2016 for recovering certain amount of excess pay that had been paid to him and for recovering of an amount of Rs. 98,599/- which pertains to Tax Deduction at Source (hereinafter referred to as "TDS") which incidentally was not made when an amount was paid to the petitioner. Being aggrieved with the said order, the petitioner had approached this Court by filing Writ Petition No. 27525 (SS) of 2016 Inre; Mahendra Kumar Tripathi Vs. State of U.P and Ors and this Court vide judgment and order dated 19.11.2016 had allowed the writ petition on the ground that no opportunity of hearing had been given to the petitioner by the respondents while ordering for recovery. This Court also directed the respondents to issue a Show Cause Notice to the petitioner within fifteen days and the respondents were required to act after considering the reply of the petitioner. Incidentally, the said order dated 19.11.2016 was only towards the recovery of Rs. 98,599/- which was alleged to be towards the TDS as due against the petitioner while the excess amount was held to be not recoverable from the petitioner taking into consideration the law laid down by the Supreme Court in the case of State of Punjab and Ors Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 and other case laws.
5. In pursuance thereof, a Show Cause Notice was issued on 15.03.2017 by the respondents, a copy of which is annexure 4 to the petition. Incidentally, the said notice was issued to the petitioner both for an alleged excess amount paid to him and towards the TDS. Being aggrieved, the petitioner was constrained to file Writ Petition No. 8506 (SS) of 2017 and this Court vide judgment and order dated 24.04.2017, a copy of which is annexure 5 to the petition held that the earlier judgment of this Court dated 19.11.2016 was categoric inasmuch as the respondents could only issue a notice to the petitioner for the proposed deduction of tax at source and not for the alleged excess salary paid to him. In this view of the matter, this Court held that there was some ambiguity in the notice and thus it was clarified that the respondent no. 5 shall proceed strictly in terms of the judgment dated 19.11.2016 and the petitioner was required to submit his explanation within a period of ten days thereafter. In pursuance thereof, the respondents issued a notice dated 28.06.2017, a copy of which is annexure 7 to the petition withdrawing the earlier notice. Thereafter, the respondents have proceeded to pass the impugned order dated 17.07.2019, a copy of which is annexure 1 to the petition for recovering the amount of TDS of Rs. 98,599/-.
6. Learned counsel for the contends that once there are already two orders of this Court requiring the respondents to issue a Show Cause Notice to the petitioner prior to proceeding to recover the amount of the TDS, consequently, the respondents could not have passed the impugned order dated 17.07.2019. It is also contended that the respondents have also recorded in the said order that a Show Cause Notice had been issued earlier to the petitioner which was received by him on 17.03.2017 but as no reply was submitted, as such, the respondents have proceeded to pass the order dated 17.07.2019. It is contended that once no notice was received by the petitioner on 17.03.2017, consequently there was no occasion for the petitioner to submit any reply, however, as an abundant caution, it is submitted that the petitioner had in fact submitted a reply to Notice No. 5/2016 (objection no. 8) vide reply dated 17.07.2017, a copy of which has been filed as Annexure 8 to the petition which has not been considered by the respondents while passing the impugned order dated 17.07.2019. Thus, it is contended that the impugned order merits to be quashed on the ground that they the respondents have proceed with patent non application of mind while proceeding to pass the impugned order.
7. On the other hand, learned Standing counsel on the basis of instructions submits that though through the order dated 28.06.2017, a copy of which is annexure 7 to the petition, the earlier Show Cause Notices were withdrawn being erroneous yet on the same day itself vide Letter No. 5/2016 (Objection No. 8) dated 28.06.2017, a Show Cause Notice had been issued to the petitioner for recovery of the aforesaid TDS amount of Rs. 98,599/- to which the petitioner had not submitted any reply. Thus, having no way out and even after affording due opportunity of hearing as the petitioner did not choose to submit any reply, as such, the respondents have correctly proceeded to pass the order dated 17.07.2019 for recovering the aforesaid amount. In this regard, learned Standing counsel has also passed on a copy of the notice dated 28.06.2017 as issued to the petitioner duly bearing the receipt of the petitioner dated 30.06.2017. The notice dated 28.06.2017 is taken on record.
8. To this, learned counsel for the petitioner submits that the reply which had been submitted by the petitioner was with respect to letter no. 5/2016 (Objection No. 8) dated 28.06.2017 which has been passed on by learned Standing counsel which would be amply clear from a perusal of the reply dated 17.07.2017 as submitted by the petitioner, a copy of which is annexure 8 to the petition. It is also stated that inadvertently the said Show Cause Notice as passed on by learned Standing counsel could not be annexed by the petitioner while filing the present petition.
9. Heard learned counsels for the contesting parties and perused the records.
10. From a perusal of the impugned order dated 17.07.2019 it comes out that the respondents have passed the order for recovering the amount of Rs. 98,599/- towards the TDS amount and it has been indicated that despite a Show Cause Notice the petitioner has failed to submit his reply and thus the impugned order has been passed. However, a perusal of records indicates that the petitioner had submitted his reply on 17.07.2017 and also required certain documents in order to submit an effective reply. It is not the case of the respondents that at any stage the documents as required by the petitioner, were ever given rather, when the respondents asked the petitioner to submit his PAN Card so as to enable the respondent to give Form 16 to the petitioner and the same has also been made available by the petitioner through his application dated 06.11.2017, a copy of which has been filed as annexure 11 to the petition. Be that as it may, the fact of the matter remains that the petitioner had submitted his reply on 17.07.2017 in pursuance to the Show Cause Notice dated 28.06.2017 vide letter no. 5/2016 (Objection No. 8) which has not been considered by the respondents while proceeding to pass the impugned order dated 17.07.2019. Thus, the impugned order gets patently vitiated on this ground alone.
10. Accordingly, taking into consideration the aforesaid discussions, the writ petition is allowed. A writ of Certiorari is issued quashing the impugned order dated 17.07.2019, a copy of which is annexure 1 to the petition. As the order is being quashed on the ground of non consideration of the reply of the petitioner, it is provided that it would be open for the respondents to pass a reasoned and speaking order after considering the reply of the petitioner dated 17.07.2017, a copy of which has been filed as annexure 8 to the petition and after providing the documents as are required by the petitioner for submitting an effective reply. Let the aforesaid exercise be carried out by the respondents within a period of four weeks from the date of communication of a certified copy of this order Order Date :- 26.8.2019 Pachhere/-
(Abdul Moin, J)