# Mahendra Pratap Singh v. State Of U.P.,Thru. Prin. Secy.,Training & Employment and others

- **Citation:** (2011) 2 ILRA 520
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-09
- **Bench:** Devi Prasad Singh, S.C. Chaurasia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-pratap-singh-v-state-of-u-p-thru-prin-secy-training-employment-and-41913
- **Pages:** 4

## Headnote

Constitution
of
India,
Article
226Recovery
of
excess
amount
from
gratuity-after 3 years of retirement
amount
Rs.
200586/-withheld
and
remaining amount released on ground of
excess payment-due to miscalculation by
the
authorities-petitioner
not
found
instrumental or mis representated in
drawing
excess
amount-if
excess
amount paid with collusion of employees
it can be dealt suitably-but such excess
amount can not be withheld.

Held: Para 9

In another case, reported in 2004
ESC(All) 455 Union of India versus
Rakesh Chandra, a Division Bench of this
Court
after
considering
catena
of
judgments of Hon'ble Supreme Court
held that incorrect calculation of pay
scale and payment thereof of no fault on
the part of the employee shall not make
out a ground to recover the same.

In view of settled proposition of law, it
appears that once the amount is paid for
no fault on the part of the government
employee, then at later stage, that too
after retirement, the same cannot be
recovered. Of course, in case higher payscale is paid because of collusive act
between the office and the employee
concerned, then in such situation, it will
be open for the State to recover the
same.
Case law discussed:
[2004 (22) LCD 486]; [2004 (22) LCD 490];
(1994) 2 SCC 521; [1998 (16) LCD-1277];
(1994) 6 SCC 589; (1981) 1 SCC 449; 2004
ESC (All) 455

## Text

520 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
of coming an appropriate conclusion as
early as possible preferably within one
month from the date of communication of
this order. For the purpose of effective
adjudication all the parties concerned will
be given opportunity of hearing and the
Committee will pass appropriate reasoned
order upon hearing all the parties. Copy of
the paper book of this special appeal can
also be treated as part and parcel of the
representation, if any, to be filed before
the authority concerned as an additional
papers. It is obvious that at the time of
consideration the cause of the appellantpetitioner
question
of
her
initial
appointment will also be adjudged.

10. No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE S.C. CHAURASIA,J.

Service Bench No. - 678 of 2010

Mahendra Pratap Singh
 ...Petitioner
Versus
State Of U.P.,Thru. Prin. Secy.,Training &
Employment and others ...Respondents

Counsel for the Petitioner:
Sri Alok Kr. Tripathi

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226Recovery
of
excess
amount
from
gratuity-after 3 years of retirement
amount
Rs.
200586/-withheld
and
remaining amount released on ground of
excess payment-due to miscalculation by
the
authorities-petitioner
not
found
instrumental or mis representated in
drawing
excess
amount-if
excess
amount paid with collusion of employees
it can be dealt suitably-but such excess
amount can not be withheld.

Held: Para 9

In another case, reported in 2004
ESC(All) 455 Union of India versus
Rakesh Chandra, a Division Bench of this
Court
after
considering
catena
of
judgments of Hon'ble Supreme Court
held that incorrect calculation of pay
scale and payment thereof of no fault on
the part of the employee shall not make
out a ground to recover the same.

In view of settled proposition of law, it
appears that once the amount is paid for
no fault on the part of the government
employee, then at later stage, that too
after retirement, the same cannot be
recovered. Of course, in case higher payscale is paid because of collusive act
between the office and the employee
concerned, then in such situation, it will
be open for the State to recover the
same.
Case law discussed:
[2004 (22) LCD 486]; [2004 (22) LCD 490];
(1994) 2 SCC 521; [1998 (16) LCD-1277];
(1994) 6 SCC 589; (1981) 1 SCC 449; 2004
ESC (All) 455

(Delivered by Hon'ble Devi Prasad Singh,J. )

1. Heard learned counsel for the
petitioner and learned Standing Counsel.
With the consent of the parties, we
proceed to decide the writ petition finally
at admission stage.

2. The petitioner was appointed on
the post of Assistant Employment
Officer
through
Public
Service
Commission on 12.11.1976. After ten
years of satisfactory service, he was
given selection grade and posted as
District
Employment
Officer
on
11.11.1986. By order dated 31.10.2001
2 All] Mahendra Pratap Singh V. State of U.P. and others
521
with
effect
from
12.11.1992,
the
petitioner was granted first selection
grade along with other persons in
furtherance of Government Order dated
2.12.2000 after completion of fourteen
years of satisfactory service. Again, he
was granted second selection grade in
terms of the Government Order dated
2.9.2002 after completion of 24 years of
continuous
service.
The
petitioner
attained the age of superannuation on
31.7.2006. At the time of retirement, he
was holding the office of Regional
Employment Officer. By the impugned
order dated 12.5.2008, passed by the
opposite party No.2, an amount of
Rs.2,00,586/- has been deducted from
the gratuity of the petitioner on the
ground that the petitioner was given
excess amount by incorrect calculation
by the officials during the course of
employment. Withholding the amount of
Rs.2,00,586/-, rest of the gratuity was
released in favour of the petitioner by the
impugned order.

3. While assailing the impugned
order, learned counsel for the petitioner
relied upon [2004(22)LCD 486 Brahma
Lal versus Union of India and others,
[2004(22)LCD 490] State of U.P. Versus
Kalu, (1994)2 SCC 521 Shyam Babu
Verma and others versus Union of India
and others, [1998(16) LCD - 1277] Dr.
Shitla
Prasad
Nagendra
versus
Gorakhpur
University
and
others,
(1994)6 SCC 589 R. Kapur versus
Director of Inspection (Painting and
Publication) Income Tax and another,
(1981)1 SCC 449 Som Prakash Rekhi
versus Union of India and another and
submits that the respondents have got no
right to recover the amount paid during
the course of employment, that too after
lapse of almost three years. Submission
is that the calculation with regard to
payment of higher pay-scale was done by
the
respondents
and
their
staff
themselves with due communication to
the petitioner. Accordingly, it has been
submitted that no recovery could have
been made from the petitioner's gratuity
by the respondents while passing the
impugned order.

4. On the other hand, learned
Standing Counsel submits that since
incorrect calculation was done the State
has got right to recover the dues from the
post-retiral benefits.

5. In the case of Brahma Lal
(supra), relying upon earlier judgments,
it has been held that the retiral benefits
including the gratuity and provident fund
cannot be stopped as a 'set off' for
outstanding dues against the employee.

6. In the case of Shyam Babu
Verma(supra), Hon'ble Supreme Court
held that higher pay scale erroneously
given to the employee with no fault on
his or her part will not entitle the State to
recover any excess amount already paid
to the employees.

7. In R. Kapur's case(supra),
Hon'ble Supreme Court has provided
interest on account of delayed payment
of retiral dues.

8. In the case of Som Prakash
Rekhi (supra), Hon'ble Supreme Court
held that the State does not have got right
to recover the amount from the receipt of
gratuity
and
provident
fund.
To
reproduce relevant portion :

"65...........But if he draws PF or
gratuity that pension will be pared down
522 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
by a separate rule of deduction from the
pension. It follows that there is no
straining
of
the
language
of
the
regulations to mean, firstly, a right to
pension quantified in certain manner and,
secondly, a right in the management to
make deduction from out of that pension
if other retiral benefits are drawn by the
employee. There appears to be the
pension scheme. If this be correct, there
is no substance in the argument that the
pension itself is automatically reduced
into a smaller scale of pension on the
drawal of provident fund or gratuity.
Pension is one thing, deduction is
another. The latter is independent of
pension and operates on the pension to
amputate it, as it were. If a law forbids
such cut or amputation the pension
remains intact.

67. We must realise that the pension
scheme came into existence prior to two
beneficial statutes and Parliament when
enacting these legislations must have
clearly intended extra benefits being
conferred
on
employees.
Such
a
consequence will follow only if over and
above the normal pension, the benefits of
provident fund and gratuity are enjoyed.
On the other hand, if consequent on the
receipt of these benefits there is a
proportionate reduction in the pension,
there is no real benefit to the employee
because the Management takes away by
the left hand what it seems to confer by
the right, making the legislation itself
left-handed. To hold that on receipt of
gratuity and provident fund the pension
of the employee may be reduced pro
tanto is to frustrate the supplementary
character of the benefits. Indeed, that is
why by Sections 12 and 14 overriding
effect is imparted and reduction in the
retiral benefits on account of provident
fund and gratuity derived by the
employee
is
frowned
upon.
We,
accordingly, hold that it is not open to
the second respondent to deduct from the
full pension any sum based upon
Regulation 16 read with Regulation 13."

9. In another case, reported in 2004
ESC(All) 455 Union of India versus
Rakesh Chandra, a Division Bench of
this Court after considering catena of
judgments of Hon'ble Supreme Court
held that incorrect calculation of pay
scale and payment thereof of no fault on
the part of the employee shall not make
out a ground to recover the same.

In view of settled proposition of
law, it appears that once the amount is
paid for no fault on the part of the
government employee, then at later
stage, that too after retirement, the same
cannot be recovered. Of course, in case
higher pay-scale is paid because of
collusive act between the office and the
employee concerned, then in such
situation, it will be open for the State to
recover the same.

In view of above, the writ petition is
liable to be and is hereby allowed. A writ
in the nature of certiorari is issued
quashing the impugned order dated
12.5.2008, passed by opposite party No.2
with consequential benefits. In case
already recovery has been made, the
same may be refunded to the petitioner
forthwith.

The
writ
petition
is
allowed
accordingly. No order as to costs.
---------
2 All] Roshan Lal Yadav and others V. State of U.P. and others
523
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.05.2011

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA,J.

Criminal Misc. Case No.843 of 2011

Roshan Lal Yadav and others ...Petitioners
Versus
State of U.P. and others ...Opp.parties

Code of Criminal Procedure-Section 178
(c)-offence continue to be committed in
more local areas-court of concerned area
has jurisdiction-Power of Magistrate to
take
cognizance-not
controlled
by
territorial jurisdiction-part of offence
committed
at
Lucknow
not
deniedapplication
to
quash
proceedingrejected.

Held: Para 9 and 10

Upon perusal of the contents of the First
Information Report I find that the
complainant
has
stated
that
the
petitioners have abused and tortured her
at several times at Lucknow and also
threatened
to
divorce
her.
In
continuation of it, he has also filed a suit
for divorce at Varanasi, which has been
stayed by this court. When she received
information about the second marriage
of her husband with another lady,
namely, Renu Yadav, daughter of Shri
Sudama
Yadav,
resident
of
district
Ghazipur, she being at Lucknow asked
about it from her husband through
mobile phone, who accepted it very
anxiously and again by threatening that
whatever she wants to do, she may do.
Thus, from the facts of the case part of
offence committed at Lucknow, cannot
be denied. It also establishes that the
offence continued at several times at
several places including Lucknow. Thus,
this
case
very
much
attracts
the
provisions of Section 178 (c ) of the Code
of Criminal Procedure, therefore, the
cases cited by the petitioners in their
favour do not come in the way of learned
Magistrate to proceed with the case at
Lucknow.

Apart from above, the learned Additional
Government Advocate pointed out the
decisions of the Hon'ble Supreme Court
rendered in the case of Trisuns Chemical
Industry versus Rajesh Agarwal and
others, reported in (1999) 8 SCC 686, in
which the Hon'ble Supreme Court has
held
that
the
jurisdictional
aspect
becomes
relevant
only
when
the
question of enquiry or trial arises, the
Magistrate's power to take cognizance of
offence is not impaired by territorial
restriction. After taking cognizance he
may have to decide as to the court which
has jurisdiction to enquire into or try the
offence and that situation would reach
only during the post-cognizance stage
and not earlier.
Case law discussed:
(1997) 5 SCC 30; 2007 (1) JIC 269 (SC); 2007
(3) JIC 436 (All); (1999) 8 SCC 686

(Delivered by Hon'ble S.N. Shukla,J.)

1.

Heard
Mr.M.K.Srivastava,
learned counsel for the petitioners and
Mr.Mohd.Tabrez Iqbal, learned counsel
for the opposite party No.3 as well as
Mr.Rajendra Kumar Dwivedi, learned
Additional Government Advocate for the
opposite parties 1 and 2.

2. Counter affidavit as well
supplementary counter affidavit filed by
the State is taken on record.

3. The petitioners have challenged
the proceedings of case No.949 of 2010,
pending before the court of Special Chief
Judicial Magistrate, Customs, Lucknow
for trial of offences committed under
Sections 498-A, 506 of the Indian Penal
Code and 3⁄4 Dowry Prohibition Act,
Police
Station
Ghazipur,
district