# Ram Sewak Gupta v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 215
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-01
- **Case number:** Service Single No. 4735 of 2013
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sewak-gupta-v-state-of-u-p-ors-43081
- **Pages:** 4

## Headnote

Constitution
of
India,
Art.-226withholding-amount
of
gratuity
and
pension-on date of retirement neither any
departmental
nor
criminal
proceeding
pending-nor
after
retirement
initiated
after seeking permission under Regulation
351-A
of
Civil
Services
Regulationcontention of Respondent-towards loss
caused based upon audit report-amount
withheld-held-misconceived
unless
in
departmental proceeding such liability of
less fixed audit report can not be reliedorder withholding pension and gratuity
quashed-payment
be
made
within
6
weeks.
Held: Para-8 & 17

## Text

1 All] Ram Sewak Gupta Vs. State of U.P. & Ors.
215
a daughter is not liable to be interfered
with a view to avoid multiplicity of
proceedings provided she has a right to
claim maintenance from her father under
the personal law.
11. The Apex Court in the case of
Noor
Saba
Khatoon
(supra),
after
examining the personal law of muslims,
has already held that a muslim father is
liable to maintain his major daughter till
such time she is not married. It is not
disputed that O.P. No.2 is major and that
she is not yet married.
12. It is held that notwithstanding the
ineligibility of a muslim major unmarried
daughter to claim maintenance under
Section 125 Cr.P.C, yet an order granting
maintenance to her is not liable to be
interfered, with a view to avoid the
multiplicity of proceedings, as such a
daughter, who is unable to maintain
herself can claim maintenance from her
father under the personal law.
13. Thus in view of the aforesaid
discussion,
there
is
no
illegality/
impropriety in the impugned order.
14. No other plea is urged.
15. The revision is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.12.2014
BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
Service Single No. 4735 of 2013
Ram Sewak Gupta
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri D.S. Yadav
Counsel for the Respondents:
C.S.C.
Constitution
of
India,
Art.-226withholding-amount
of
gratuity
and
pension-on date of retirement neither any
departmental
nor
criminal
proceeding
pending-nor
after
retirement
initiated
after seeking permission under Regulation
351-A
of
Civil
Services
Regulationcontention of Respondent-towards loss
caused based upon audit report-amount
withheld-held-misconceived
unless
in
departmental proceeding such liability of
less fixed audit report can not be reliedorder withholding pension and gratuity
quashed-payment
be
made
within
6
weeks.
Held: Para-8 & 17
8.
Admittedly,
no
departmental
proceedings were instituted, neither the
same were pending against the petitioner
on the date of retirement. It is also not
denied that no departmental proceedings,
after seeking approval of the competent
authority under Regulation 351-A of the
Civil
Service
Regulations,
have
been
initiated against the petitioner.
17. Merely on the basis of said audit report
without the charge of causing loss being
established in a full-fledged departmental
inquiry, no recovery of alleged loss caused
to the State Exchequer can be made.
Case Law discussed:
Spl. Appl D 1278 of 2013; 1993 (7) SLR 706;
2006 (110) FLR 101.
(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)
1. Heard learned counsel for the
petitioner and learned Standing Counsel
appearing for the respondents.
216
 INDIAN LAW REPORTS ALLAHABAD SERIES
2. The petitioner, who has retired on
30.06.2012 from the post of Marketing
Inspector, has filed this petition with the
prayer that the order dated 24.07.2013
passed by the Regional Food Controller,
Faizabad Region, Faizabad whereby part
of the gratuity amount of Rs.2,62,271/-
has been withheld for recovering the same
on account of the alleged loss caused to
the State Exchequer by the petitioner, be
quashed. The petitioner has also prayed
that the pension payment order dated
04.01.2013 be also quashed to the extent
it
withholds
the
amount
of
leave
encashement. Further prayer has been
made for commanding the opposite party
no.4 to accord the benefit of IIIrd Assured
Career Progression to the petitioner with
effect from 01.12.2008 in terms of the
prevalent Government Order and further
that the petitioner be permitted to
withdraw the GPF amount.
3. So far as the prayer relating to
withholding of the leave encashement
amount is concerned, learned counsel for
the petitioner states that the said amount
has been released. Accordingly, the
prayer made in this petition in respect of
the same has been rendered infructuous.
As regards the prayer relating to grant of
the benefit of IIIrd Assured Career
Progression to the petitioner, it has been
informed that the said benefit has also
been given to him which renders the
prayer made in this regard infructuous.
The petitioner, has, since been permitted
to withdraw the amount of GPF, hence in
this view, the prayer made in this regard
has also become infructuous.
4. The sole issue which now
survives for consideration in this case is
as to whether the part of the amount of
gratuity i.e. the sum of Rs.2,62,271/- has
legally been withheld by the Regional
Food
Controller,
Faizabad
Division,
Faizabad by passing the impugned order.
5. It has been submitted by the
learned counsel for the petitioner that at
the time of retirement, the petitioner was
not facing any departmental inquiry,
neither any departmental proceedings
were initiated after his retirement in terms
of the provision contained in Regulation
351-A of the Civil Service Regulations,
hence there was no occasion for the
respondents to have withheld the part of
the amount of gratuity.
6. Per contra, learned counsel
appearing for the State has vehemently
argued that on the basis of special audit
report, it was determined that the
petitioner has caused loss of Rs.2,62,271/-
, hence the loss caused to the State
Exchequer has been sought to be
recovered by withholding the amount
equal to the loss, from the gratuity of the
petitioner
by
the
Regional
Food
Controller, Faizabad Division, Faizabad
by means of order dated 24.07.2013.
7. I have considered the arguments
advanced by learned counsels appearing
for the parties.
8. Admittedly, no departmental
proceedings were instituted, neither the
same were pending against the petitioner
on the date of retirement. It is also not
denied that no departmental proceedings,
after seeking approval of the competent
authority under Regulation 351-A of the
Civil Service Regulations, have been
initiated against the petitioner.
9. In the counter affidavit, it has
been stated by the respondents that on the
1 All] Ram Sewak Gupta Vs. State of U.P. & Ors.
217
basis of liability of a sum of Rs.2,62,271/-
, which has been determined on the basis
of audit report, the amount has been
ordered to be recovered from the gratuity
amount of the petitioner. No other reason
has been indicated by the respondents for
withholding the amount of gratuity for
recovery of the alleged loss caused to the
State Exchequer.
10. The U.P. Recruitment Benefit
Rules 1961 provides that recovery from
the gratuity of retired employee can be
made only if the conditions of Regulation
351-A of the Civil Service Regulation are
fulfilled. As observed above, in the instant
case, there is no material which in any
manner suggests that any departmental
proceedings were initiated against the
petitioner by taking recourse to the
provisions of Regulation 351-A of the
Civil Service Regulations.
11. Learned Standing Counsel
appearing for the State has, however,
sought to defend the impugned order of
recovery from the gratuity amount on the
basis of decision rendered by a Division
Bench of this Court in the case of State of
U.P. and others vs Jai Prakash, decided on
17.12.2013 in Special Appeal Defective
No.1278 of 2013. The Division Bench in
the
aforesaid
case
has
held
that
Government has the power to withhold
the gratuity, however, the gratuity can be
withheld
only
until
conclusion
of
departmental or judicial proceedings or
any inquiry by administrative tribunal.
12. Referring to the provision
contained in Regulation 351-AA, this
Court in the said case of State of U.P and
others vs Jai Prakash (supra) has held that
death-cum-retirement gratuity may be
withheld
until
the
conclusion
of
departmental or judicial proceedings and
the issue of final orders thereon.
13. Thus, condition precedent for
withholding or making recovery from the
gratuity is pendency of departmental or
judicial proceedings or any inquiry by the
administrative tribunal and in absence of
these inquiries or proceedings pending on
the date of retirement, gratuity of the
retiring employee cannot be withheld.
14. As observed above, admittedly,
in the instant case, no departmental or
judicial proceeding or any such inquiry
was pending, hence there cannot be any
justification for withholding the gratuity
of the petitioner.
15. In fact, the impugned order does
not withhold part of amount of gratuity;
rather it seeks to recover the same citing
the cause that the petitioner has been
responsible for causing loss to the State
Exchequer to the extent of the amount
mentioned in the impugned order.
16. The question, thus, is as to
whether without holding any departmental
inquiry and without determining the
responsibility of the petitioner for the
alleged loss, solely on the basis of audit
report, can any recovery from the
petitioner be made.
17. It is well established that audit
report cannot be used as substantive
evidence of the genuineness or bonafide
nature of the transactions referred to in
the accounts. As has been held by this
Court in the case of Dilip Singh Rana vs
State of U.P. reported in 1993 (7) SLR
706, audit is only official examination of
the accounts in order to make sure that the
accounts have been properly maintained
218
 INDIAN LAW REPORTS ALLAHABAD SERIES
according to prescribed mode and further
that audit report is a statement of facts
pertaining to the maintenance of accounts
coupled with the opinion of the auditor
and thus it can only give rise to
reasonable suspicion of commission of a
wrong. Merely on the basis of said audit
report without the charge of causing loss
being
established
in
a
full-fledged
departmental inquiry, no recovery of
alleged loss caused to the State Exchequer
can be made.
18.

In
similar
circumstances,
recovery sought to be made from the
gratuity of a retired government employee
on the basis of some audit report was not
approved by a Division Bench of this
Court in the case of Radhey Shyam Dixit
vs State of U.P. and others, reported in
2006 (110) FLR 101.
19. For the reasons disclosed above
in the instant case as well, the recovery of
the part of the amount of gratuity of the
petitioner, which has been sought to be
made by passing the impugned order
dated 24.07.2013, cannot be permitted to
be sustained.
20. In the result, the writ petition is
allowed and the impugned order dated
24.07.2013 passed by the Regional Food
Controller, Faizabad Region, Faizabad as
contained in annexure no.1 to the writ
petition is hereby quashed. It is directed
that payment of entire gratuity amount
shall be made to the petitioner within six
weeks from the date of production of
certified copy of this order.
21. However, there will be no order
as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2015
BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.
Civil Misc. Writ Petition No. 4788 of 2015
Kishan Lal Barwa
...Petitioner
Versus
Sharda Saharan & Anr.
...Respondents
Counsel for the Petitioner:
Sushma Singh, Sri Manish Singh
Counsel for the Respondents:
Sri Pankaj Agarwal
C.P.C. Section 47-Execution proceedingdecree
obtained
by
fraud-whether
execution Court can consider such issue
of fraud-held-'yes'-execution Court being
duty bound to consider-as fraud vitiates
all solemn acts-such application can not
be rejected-order impugned quashed
with cost of Rs. 500/-with direction to
expeditious disposal.
Held: Para-19
It is well settled that once the plea of
fraud has been setup by the defendantpetitioner before the executing court,
and credible evidence in support of such
plea was also placed, it was incumbent
upon
the
executing
court
to
have
examined the issue of fraud, on merits,
and such plea ought not to have been
rejected merely on the ground that a
decree
in
favour
of
the
plaintiffrespondent had been passed, and the
executing
court,
as
such,
had
no
occasion to examine the plea of fraud. It
is also well settled that fraud vitiates all
solemn acts. Though a plea of fraud was
taken up before the civil court, but such
plea was not adjudicated, which is
clarified in the judgment of the civil
court itself. However, if a credible
material has come into existence, which
if is found proved vitiates the decree
itself, it is the duty of the executing