Court No. - 39
Case :- WRIT - A No. - 14570 of 2019 Petitioner :- Santosh Kumar Mishra Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Upendra Singh,Suvarna Singh Counsel for Respondent :- C.S.C.,Amit Krishna,Krishna Agarawal
Hon'ble Ashwani Kumar Mishra,J.
Petitioner is aggrieved by orders dated 5.11.2014 and 20th July, 2016, contained in Annexure 11 to the writ petition, whereby a direction is issued to recover certain amount from the petitioner on account of accidents caused which resulted in payment of compensation amount to persons concerned. A further prayer is made to direct the respondents to release withheld retiral benefits of the petitioner alongwith interest.
Petitioner at the relevant point of time was Junior Engineer in the Electricity Distribution Division Banda (Gramin) of the respondent Corporation. It appears that in two separate accidents caused in the year 2014 and 2015 an enquiry was undertaken by the Electricity Inspector. On the basis of recommendation made by him orders have been passed on 5.11.2014 directing a sum of Rs. 90,000/- to be debited to petitioner's account while by the second order dated 20th July, 2016 a sum of Rs. One Lakh was directed to be recovered from the salary of the petitioner. These orders are challenged in this writ petition.
A perusal of these orders would go to show that after referring to the accident it is observed that the concerned Junior Engineer alongwith other officers were responsible for the accident and consequently the amount of compensation is liable to be recovered from them.
The orders are assailed primarily on the ground that while petitioner remained in employment, this order was never served upon him, nor any recovery was made from his salary. It is stated that without conducting any disciplinary enquiry, the liability of petitioner to pay such amount cannot be fastened upon him. Submission is that withholding of the retiral benefits, in such circumstances, would be arbitrary.
Specific averments have been made in paragraphs 45 and 46 of the writ petition that the orders impugned were never served upon the petitioner while he was in service. Attention of the Court has been invited to the orders, as per which, copies thereof are marked to other persons, but the same is not endorsed to the writ petition. It is asserted that no recovery was ever made from the petitioner pursuant to these orders.
In the counter affidavit it is stated that these orders were orally informed to the petitioner. It is admitted that no recovery was made from the petitioner pursuant to it.
From the materials placed before the Court, it is observed that despite a specific direction in the order for recovery to be effected from the petitioner, no recovery has been made from him. The order is also not endorsed to the petitioner. It appears to the Court that the orders though were passed, but the same were kept in the records of the respondents themselves, and were neither served upon the petitioner nor were acted upon.
Law is settled that unless an order is served upon the employee or is otherwise acted upon, it cannot be treated to be a valid order in law. It is, therefore, apparent that the orders impugned were never given effect to while petitioner remained in the employment of the respondent. The question then would arise as to whether the orders could be passed now to withhold petitioner's retiral benefits to the extent of recovery.
Learned counsel for the petitioner submits that responsibility of the petitioner to pay such amount cannot be determined except by holding appropriate disciplinary enquiry in accordance with law. In that regard reliance has been placed upon a circular of the U.P. Power Corporation, dated 19th June, 2008, as per which, on the basis of recommendation made by the Inspector of Electrical Safety, a disciplinary enquiry would be warranted before responsibility could be fixed to effect recovery from the employee concerned. It is admitted that no such disciplinary enquiry has otherwise been conducted in the matter against the petitioner. The accidents in respect of which recovery is proposed are of different dates in the year 2014 and 2015.
Initiation of disciplinary enquiry now also would not be permissible in terms of Clause 351A of the Civil Services Regulation since a period of more than four years have expired since the date of alleged accident. It is also found that neither at the stage of enquiry by the Electrical Inspector nor at any subsequent stage petitioner was associated with the enquiry and, therefore, the respondents would not be justified in withholding petitioner's retiral benefits and directing recovery to be made from him.
In that view of the matter, this writ petition succeeds and is allowed. The orders impugned, dated 5.11.2014 and 20th July, 2016 stands quashed. A direction is issued to the respondents to release withheld retiral benefits to the petitioner within a period of two months from today. For the delay caused in release of retiral benefits to the petitioner, he would also be entitled to interest @ 8% per annum.
Order Date :- 29.11.2019 Ranjeet Sahu