Court No. - 36
Case :- WRIT - A No. - 21348 of 2019 Petitioner :- Mohammad Shameem Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Mohit Singh,Dileep Kumar Shukla Counsel for Respondent :- C.S.C.,Mritunjay Mohan Sahai
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondent no. 1 and Sri M.M. Sahai, learned counsel for the respondent nos. 2 to 4.
Learned counsel for the petitioner is assailing the impugned orders dated 10.10.2018, 29.06.2018 and 20.06.2018 passed by respondent no. 4.
Learned counsel for the petitioner submitted that petitioner joined his service in the Uttar Pradesh State Road Transport Corporation (UPSRTC) as Conductor on 22.05.1980. His service was regularized on 09.12.1984 and he was also given selection grade from 01.01.1996 after completing 10 years of unblemished service. He further submitted that during course of service, certain departmental proceeding was initiated against the petitioner. Ultimately, petitioner retired from service on 31.07.2018 after attaining the age of superannuation. He next submitted that respondents were not willing to pay his retiral dues therefore, under undue pressure just before 15 days of his retirement, petitioner has given an affidavit to the effect that if some amount of any department is due, same shall be deducted from his gratuity.
Learned counsel for the petitioner submitted that vide impugned order 10.10.2018 an amount of Rs.2,36,000/- has been deducted from the Leave encashment amount after retirement which was paid to him due to incorrect pay fixation, this cannot be done in light of judgment of the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others, (2015) 4 Supreme Court Cases 334, therefore, impugned order dated 10.10.2018 is in teeth of aforesaid judgment of the Apex Court. He next submitted that vide impugned orders dated 20.06.2018 and 29.06.2018 passed at the fag end of his service, pay fixation of the petitioner has been changed. Both the orders are in contravention of Government Order dated 07.05.2007. The said Government Order provides that in case of rectification of any such mistake with regard to pay fixation, ample opportunity of hearing must be given to an employee/officer before cancelling or amending the order, but in the present case, no opportunity of hearing was given to the petitioner, therefore, the orders dated 20.06.2018 and 29.06.2018 are bad in law and liable to be quashed.
Sri M.M. Sahai, learned counsel for the respondent nos. 2 to 4 opposed the submission made by learned counsel for the petitioner, but could not dispute that the order dated 10.10.2018 is not in accordance with judgment of the Apex Court in the case of Rafiq Masih (supra). So far as orders dated 20.06.2018 and 29.06.2018 are concerned, from the counter affidavit he could not demonstrate about opportunity of hearing given to the petitioner as provided in Government Order dated 07.05.2007.
I have considered the submissions raised by learned counsel for the parties and perused the record as well as impugned orders. There is no dispute that the impugned order dated 10.10.2018 has been passed for recovery of an amount of Rs.2,36,000/- after retirement of petitioner, which was given to him due to incorrect fixation. In light of judgment of Rafiq Masih (supra), no recovery can be made after retirement of class III and Class IV employees and further he could not dispute that the impugned orders dated 20.06.2021 and 29.06.2021 have been passed without giving any opportunity of hearing to the petitioner.
Therefore, under such facts and circumstances of the case, impugned orders dated 10.10.2018, 20.06.2018 and 29.06.2018 are hereby quashed. The writ petition is allowed. The respondent no. 3 is directed to pay all post retiral dues to the petitioner alongwith interest as provided in Rules and in case there is no Rule, as per Bank rate available in the Fixed Deposit Receipt (F.D.R.), maximum within a period of two months from the date of production of computer generated copy of this order after verifying the same from the official website of Allahabad High Court.
At this stage, Sri M.M. Sahai, learned counsel submitted that respondent nos. 2 to 4 may be given opportunity to rectify the mistakes in the impugned orders dated 20.06.2021 and 29.06.2018. Needless to say for rectification of any mistake or taking any action in accordance with law, no permission is required.
Order Date :- 24.9.2021 Rmk.