# Prashank Ranjan Singh v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 733
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-09
- **Case number:** Civil Misc. Writ Petition No. 38657 of 2005
- **Bench:** S.P. Mehrotra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prashank-ranjan-singh-v-state-of-u-p-and-others-41174
- **Pages:** 6

## Headnote

Payment of Gratuity Act, 1972-Section
4(6)-Recovery
from
Gratuity-amount
discovered after death of employeerecovery against alleged deficiency of
items
in
store-while
the
deceased
employee was working as store in
charge-held-cannot
be
recovered
without issuing show cause noticewithout affording an opportunity of
hearing-illegal.

Held: Para 20

Under the circumstances, I am of the
opinion that the recovery of Rs.21,41600 sought to be made in respect of the
alleged deficiency in the items in the
Office Store from the amount of gratuity
payable in respect of the deceased
Awadhesh
Singh
is
against
the
provisions of the said Government Order
dated 28-7-1989 and the said recovery
cannot be made from the gratuity
payable in respect of the deceased
Awadhesh Singh

## Text

3 All] Prashank Ranjan Singh V. State of U.P. and others
733
argument of the learned counsel for the
appellant that the plaintiff has acquired
easementary right is without any basis.
There is no such claim in the plaint and it
is not disputed that the suit was instituted
within two years from the date of
purchase of the land and, therefore, the
courts below were absolutely correct in
refusing the claim of easementary right
specially in absence of any pleadings to
that effect.

6. The Apex Court in the recent cases
of Santosh Hazari Vs. Purshottam Tiwari,
(2001) 3 SCC, 179 and Govinda Raju Vs.
Mariamman (2005) 2 Supreme Court
Cases, 500, ruled that a point of law which
admits of no two opinions may be a
preposition of law but can not be a
substantial
question of law. To be
'substantial' question of law it must be
debatable, not previously settled by law of
the land or a binding precedent, and must
have a material bearing on the decision of
the case, if answered either way, in so far as
the rights of the parties before it are
concerned. It will therefore, depend on the
facts and circumstances of the each case
whether a question of law is substantial one
and involved in the case, or not? The same
view has been expressed by the Apex Court
in the cases of Rajeshwari Vs. Puran
Indoria, (2005) 7 Supreme Court Cases,
60.

7. In view of the touchstone and
principles laid down by the Apex Court in
the aforesaid decisions, I do not find any
substantial error of law and a fit case for
interference in exercise of jurisdiction
under Section 100 C.P.C. The judgment of
the lower appellate court do not call for any
interference. The appeal lacks merit and is
accordingly dismissed. Cost on parties.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2008

BEFORE
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Writ Petition No. 38657 of 2005

Prashant Ranjan Singh
...Petitioner
Versus.
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.K. Srivastava

Counsel for the Respondents:
S.C.

Payment of Gratuity Act, 1972-Section
4(6)-Recovery
from
Gratuity-amount
discovered after death of employeerecovery against alleged deficiency of
items
in
store-while
the
deceased
employee was working as store in
charge-held-cannot
be
recovered
without issuing show cause noticewithout affording an opportunity of
hearing-illegal.

Held: Para 20

Under the circumstances, I am of the
opinion that the recovery of Rs.21,41600 sought to be made in respect of the
alleged deficiency in the items in the
Office Store from the amount of gratuity
payable in respect of the deceased
Awadhesh
Singh
is
against
the
provisions of the said Government Order
dated 28-7-1989 and the said recovery
cannot be made from the gratuity
payable in respect of the deceased
Awadhesh Singh

(Delivered by Hon'ble S.P. Mehrotra, J.)

1. The present writ petition has been
filed under Article 226 of the Constitution
of India, interalia, praying for quashing
734 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the order dated 6-2-2002 passed by the
District Agriculture Raksha Adhikari,
Ballia (respondent no.3).

2. The counter affidavit and the
rejoinder affidavit have been exchanged,
and the writ petition is being disposed of
finally with the consent of the learned
counsel for the parties.

3. From a perusal of the averments
made in the writ petition, as also in the
counter
affidavit
and
the
rejoinder
affidavit, the relevant facts, as noted
hereinafter, emerge.

4. Awadhesh Singh, father of the
petitioner was working on the post of
senior clerk in the office of the respondent
no.3. The said Awadhesh Singh (father of
the petitioner) expired on 9-9-2000 while
he was in service. After the death of the
said Awadhesh Singh, the petitioner was
appointed as junior clerk on 13-11-2000
on compassionate grounds.

5. It appears that consequent upon
the death of the said Awadhesh Singh,
payment of the gratuity payable in respect
of the said Awadhesh Singh was claimed
by the petitioner. 90% of the gratuity
amount payable in respect of the said
Awadhesh
Singh,
amounting
to
Rs.2,15,000-00, was paid to the petitioner.
However, 10% of the gratuity payable in
respect of the said Awadhesh Singh was
withheld by the respondents.

6. In the circumstances, the
petitioner made representation dated 30-12002
before
the
respondent
no.3
whereupon the respondent no.3 passed an
order dated 6-2-2002, copy whereof has
been filed as Annexure No.2 to the writ
petition. It is stated in the said order dated
6-2-2002 passed by the respondent no.3,
that the District Agriculture Officer, Basti
(Respondent no.4) by the letter dated 298-2001 had intimated that the amount of
Rs.21,416-00 was to be recovered from
the said Awadhesh Singh, but the
petitioner had not deposited the said
amount. The said order dated 6-2-2002
further directed the petitioner to deposit
the said amount of Rs.21,416-00 as
required by the District Agriculture
Officer, Basti.

7. Copy of the letter dated 29-82001 of the District Agriculture Officer,
Basti, referred to in the above order dated
6-2-2002, has been filed as Annexure
No.3 to the writ petition as well as
Annexure No.CA 2 to the counter
affidavit
filed
on
behalf
of
the
respondents. It is, interalia, stated in the
said letter dated 29-8-2001 that the said
Awadhesh Singh was having charge of
the Office Store and after the death of said
Awadhesh Singh, certain items in the
Office Store were found to be deficient
and
accordingly
Rs.21,416-00
was
payable in respect of the said deficiency.
A list of the items allegedly found
deficient has also been annexed as part of
Annexure
No.CA-2
to
the
counter
affidavit. It further appears that in view of
the said order dated 6-2-2002, the
petitioner made representations before the
respondent no.3 against the alleged
recovery of Rs.21,416-00 sought to be
recovered in respect of the alleged
deficient items in the Office Store after
the death of the said Awadhesh Singh.
Copy of the last representation dated 9-22005 has been filed as Annexure No.4 to
the writ petition. As nothing was done on
the representation of the petitioner, the
petitioner has filed the present writ
petition.
3 All] Prashank Ranjan Singh V. State of U.P. and others
735
8. I have heard Sri Arvind Kumar
Srivastava,
learned
counsel
for
the
petitioner and the learned Standing
Counsel appearing for the respondents,
and perused the record.

9. Sri Arvind Kumar Srivastava,
learned counsel for the petitioner submits
that no show-cause notice was issued to
the said Awadhesh Singh (father of the
petitioner) during his life-time and it is
only after the death of the said Awadhesh
Singh that the respondents have alleged
that there was deficiency in the items in
the Office Store to the tune of Rs.21,41600. It is submitted that in view of the
provisions of the Government Order dated
28-7-1989 (Annexure No.6 to the writ
petition), the said amount cannot be
recovered from the gratuity payable in
respect of the said Awadhesh Singh after
his death as no show- cause notice was
issued to the said Awadhesh Singh during
his life-time in regard to the alleged
deficiency in the items in the Office Store,
under the charge of the said Awadhesh
Singh. Sri Srivastava submits that it is
only in respect of the advances such as for
house, motor-car, motorcycle etc. that the
recovery can be made from the gratuity
payable
in
respect
of
a
deceased
employee.

10. In reply, the learned Standing
Counsel submits that the deficiency in the
items in the Office Store was discovered
after the death of the said Awadhesh
Singh, and the amount of Rs.21,416-00 in
respect of such deficiency may be
recovered from the gratuity payable in
respect of the said Awadhesh Singh. It
has, however, not been disputed by the
learned Standing Counsel that no showcause notice was issued to the said
Awadhesh Singh in regard to the alleged
deficiency in the items in the Office Store
during the life-time of the said Awadhesh
Singh and it is only after the death of the
said Awadhesh Singh that the deficiency
in the items in the Office Store was
discovered, and thereupon, a recovery of
Rs.21,416-00 was sought to be made from
the gratuity payable in respect of the said
Awadhesh Singh.

11. The Government Order dated
28-7-1989 has been issued for simplifying
the procedure for the payment of
superannuation pension, family pension,
death/
retirement
gratuity
and
commutation amount in order to avoid
delay in payment of the said amounts. The
said Government Order, as noted above,
has been filed as Annexure No.6 to the
writ petition.

12. Clause (5)2(kha)(3) of the said
Government Order (occurring at page 36
of the paper-book of the writ petition),
interalia, provides that in case any
departmental/ judicial enquiry is going on
against a government servant, on the date
of his retirement, he will be paid
provisional pension but the entire amount
of gratuity will be withheld till the result
of the enquiry is not received. However,
clause
(5)2(kha)(5)
of
the
said
Government Order (occurring at page 36
of the paper-book of the writ petition)
provides that in case of the death of the
concerned
government
servant,
such
departmental /judicial enquiry would be
deemed to have abated as the concerned
government employee would not be able
to place his version and the exparte
proceeding would not be justified from
the
legal
point
of
view.
Clause
(5)2(kha)(10) of the said Government
Order (occurring at page 38 of the paperbook of the writ petition), interalia,
736 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
provides that in case an employee dies
while in service, the entire family pension
would be released immediately and
excepting for the amounts which are
compulsorily recoverable from the death-
gratuity such as advances in respect of the
house, motor-car, motorcycle etc., the
remaining death-gratuity would also be
immediately released. However, in case,
before the death of the concerned
government
employee,
departmental
proceedings have been concluded or he
has been given opportunity to present his
version after giving show-cause notice,
the amounts sought to be recovered
consequent to such proceedings may also
be recovered form the death-gratuity.
Clause (8)2 of the said Government Order
(occurring at page 41 of the paper-book of
the
writ
petition),
makes
similar
provisions as are contained in clause
(5)2(kha)(10) of the said Government
Order.

13. It is, thus evident that out of the
amounts of gratuity payable in respect of
the government servant who has died
while in service, only the following
amounts can be recovered :-

1.
Such
advances
which
are
compulsorily recoverable from the
death-gratuity such as advances in
respect
of
house,
motor-car,
motorcycle etc.
2.
In case the departmental proceedings
against the concerned government
servant have been concluded in his
life-time or he was given opportunity
to place his version after giving
show-cause notice during his lifetime,
and
certain
amount
is
recoverable as consequence of such
proceedings.
After deducting the amounts, if any,
payable in respect of the aforesaid two
items, the remaining gratuity must be
paid.

14. In the present case, no advances
made to the said Awdhesh Singh are
being sought to be recovered from the
gratuity payable in respect of the said
Awadhesh Singh after his death. What is
being sought to be recovered here is the
amount
in
respect
of
the
alleged
deficiency in the items in the Office Store.
It has not been disputed that no
departmental proceedings were taken in
the life-time of the said Awadhesh Singh
nor was any show-cause notice given to
the said Awadhesh Singh during his lifetime in respect of the alleged deficiency
in the items in the Office Store. It is only
after the death of the said Awadhesh
Singh that the alleged deficiency in the
items in the Office Store was discovered
and the recovery has been sought to be
made from the gratuity payable in respect
of the said Awadhesh Singh.

15. Such recovery can not evidently
be made in view of the provisions of the
aforesaid Government Order dated 28-71989. The learned Standing Counsel has
not placed any rule or Government Order
containing any contrary provision to that
contained in the said Government Order
dated 28-7-1989.

16. It is relevant to note that subsection (6) of Section 4 of the Payment of
Gratuity Act, 1972 deals with the
forfeiture of gratuity. The said sub-section
(6) is quoted below :-

"4 Payment of Gratuity --- (1) to
(5)...................
3 All] Prashank Ranjan Singh V. State of U.P. and others
737
(6) Notwithstanding anything contained
in sub-section (1),---
(a) the gratuity of an employee,
whose services have been terminated for
any act, wilful omission or negligence
causing any damage or loss to, or
destruction of, property belonging to the
employer, shall be forfeited to the extent
of the damage or loss so caused;
(b) the gratuity payable to an
employee [may be wholly or partially
forfeited] -
(i) if the services of such employee
have been terminated for his riotous or
disorderly conduct or any other act of
violence on his part, or
(ii) if the services of such employee
have been terminated for any act which
constitutes an offence involving moral
turpitude, provided that such offence is
committed by him in the course of his
employment."

17. Sub-section (6) of section 4 of
the Payment of Gratuity Act, 1972, thus,
provides for forfeiture of gratuity to the
extent mentioned in the said provision in
case the services of an employee have
been terminated on account of the
circumstances mentioned in the said
provision. The said provision is, therefore,
not applicable in the present case where
the employee (father of the petitioner)
died while in service, and the alleged
deficiency in the items in the Office Store
was discovered after the death of such
employee.

18. As regards Article 351-A of the
Civil Services Regulations, the same is as
follows:

"351-A The Governor reserves to
himself the right of withholding or
withdrawing a pension or any part of it,
whether permanently or for a specified
period and the right of ordering the
recovery from a pension of the whole or
part of any pecuniary loss caused to
Government, if the pensioner is found in
departmental or Judicial proceedings to
have been guilty of grave mis-conduct, or
to
have caused pecuniary loss to
Government by misconduct or negligence,
during his service, including service
rendered
on
re-employment
after
retirement;

Provided that-

(a) such departmental proceedings, if
not instituted while the officer was
on duty either before retirement or
during re- employment--
(i) shall not be instituted save with the
sanction of the Governor,
(ii) shall be in respect of an event which
took place not more than four years
before
the
institution
of
such
proceedings; and
(iii) shall be conducted by such authority
and in such place or places as the
Governor
may
direct
and
in
accordance
with
the
procedure
applicable to proceedings on which
an order of dismissal from service
may be made.
(b) Judicial proceedings, if not instituted
while the officer was on duty either
before retirement or during reemployment,
shall
have
been
instituted in accordance with subclause (ii) of clause (a); and
(c) the Public Service Commission, U.P.,
shall be consulted before final orders
are passed.
[Provided further that if the order passed
by the Governor relates to a cash dealt
with
under
the
Uttar
Pradesh
Disciplinary Proceedings (Administrative
738 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Tribunal) Rules, 1947, it shall not be
necessary to consult Public Service
Commission].
Explanation--For the purposes of this
article-
(a) Departmental proceedings shall be
deemed to have been instituted when
the charges framed against the
pensioner are issued to him or, if the
officer has been placed under
suspension from an earlier date, on
such date; and
(b) judicial proceedings shall be deemed
to have been instituted :
(i) in the case of criminal proceedings,
on the date on which complaint is
made, or a charge-sheet is submitted,
to a criminal court; and
(ii) in the case of civil proceedings, on
the date on which the plaint is
presented or, as the case may be, an
application is made to a Civil court.
Note--As soon as proceedings of the
nature referred to in this article are
instituted the authority which institutes
such proceedings shall without delay
intimate the fact to the Audit Officer
concerned."

19. The above provision, thus, deals
with the right of the Governor to withhold
or withdraw a pension or part of it and to
order the recovery from a pension of the
whole or part of any pecuniary loss
caused
to
the
Government
in
the
circumstances mentioned in the above
provision. The above provision does not
apply in the case of recovery from
gratuity, and as such, the same is not
relevant in the present case.

20. Under the circumstances, I am of
the
opinion
that
the
recovery
of
Rs.21,416-00 sought to be made in
respect of the alleged deficiency in the
items in the Office Store from the amount
of gratuity payable in respect of the
deceased Awadhesh Singh is against the
provisions of the said Government Order
dated 28-7-1989 and the said recovery
cannot be made from the gratuity payable
in respect of the deceased Awadhesh
Singh.

21. The order dated 6-2-2002 is
evidently illegal being contrary to the
provisions of the Government Order dated
28-7-1989.

22. In view of the above, the writ
petition deserves to be allowed, and the
order dated 6-2-2002 is liable to be
quashed. Accordingly, the writ petition is
allowed and the order dated 6-2-2002
(Annexure No.2 to the writ petition) is
quashed. The respondent no.3 is directed
to release the balance 10% of the gratuity
payable in respect of the said Awadhesh
Singh alongwith interest payable at the
rate prescribed in the relevant rules and
the orders, within three months of the
production of certified copy of this order
before the respondent no.3. However, in
the facts and circumstances of the case,
there will be no order as to costs
Petition allowed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.07.2008

BEFORE
THE HON'BLE SURENDRA SINGH, J.

Criminal Misc. Writ Petition No. 12766 of
2008

Sanjay Kumar Chaurasia
...Petitioner
Versus
State of U.P. and others ...Respondents