# State of U.P. & Ors v. Mohd. Janbaz Alam

- **Citation:** (2023) 5 ILRA 367
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-28
- **Case number:** Special Appeal Defective No. 196 of 2023
- **Bench:** Manoj Kumar Gupta, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-mohd-janbaz-alam-50208
- **Pages:** 6

## Headnote

A. Service Law - Recovery from pension -
Civil Service Regulations - Regulation 351A - The Governor has been given right to
recover
pecuniary
loss
from
the
pensionary benefits, if the pensioner is
found
in
departmental
or
judicial
proceedings to have been guilty of grave
misconduct or to have caused pecuniary
loss to the Government by misconduct or
negligence during his service. Moreover,
the departmental proceedings, if initiated
after retirement, would only be with
sanction of the Governor and shall be in
respect of any event which took place not
more
than
four
years
before
the
institution of such proceedings. (Para 11)

In the instant case, admittedly, no departmental
or judicial proceedings were initiated against the
writ petitioner before directing recovery of the
amount from the pensionary benefits. There
was also no sanction
of the Governor.
Concededly, the alleged excess payment was
made in the year 2011-12 and definitely, it
related to an event which took place much more
than four years before order was passed for
recovery of the amount (Moreover, the State did
not raise any objection in relation to this excess
payment while the writ petitioner was in
service). Therefore, the said amount was not
recoverable at this distance of time in view of
the safeguards provided u/Regulation 351-A.
(Para 9, 12)

B. The letter of the petitioner dated
11.07.2016, cannot by any stretch of
imagination, be construed as a concession
368 INDIAN LAW REPORTS ALLAHABAD SERIES
or undertaking on part of the writ
petitioner
to
deduct
the
amount
in
question from his pensionary benefits on
permanent basis. It, on the other hand,
clearly shows that the petitioner, even at
that time, did not agree to the recovery,
but
only
agreed
for
withholding
it
temporarily so as to facilitate release of
the remaining pensionary benefits.

The State had withheld the pensionary benefits
of the writ petitioner for considerable period
after
his
retirement.
Consequently,
the
petitioner had agreed for temporary withholding
of the amount in dispute and for releasing the
remaining amount. It also transpires from the
record that the respondents released the
gratuity in the year 2017 only after deducting
the aforesaid amount. It only reflects his
helplessness and despair because of one-sided
illegal action of the employer in withholding his
pensionary benefits for more than two years,
after his retirement. (Para 16)

Special appeal dismissed. (E-4)

Precedent followed:

## Text

5 All. State of U.P. & Ors. Vs. Mohd. Janbaz Alam
367
condition in the notification that the
employee would be liable to refund excess
payment
if
discovered
subsequently
followed by the undertaking furnished by
the employee in terms of the said
stipulation,
held
that
the
principles
enunciated in proposition no. (ii) in the
case of Rafiq Masih would not apply. The
observations made in this regard is
extracted below :-

"The principle enunciated in
proposition (ii) above cannot apply to a
situation such as in the present case. In the
present case, the officer to whom the
payment was made in the first instance was
clearly placed on notice that any payment
found to have been made in excess would
be required to be refunded. The officer
furnished an undertaking while opting for
the revised pay scale. He is bound by the
undertaking."

10. In the instant case, there was no
undertaking furnished by the petitioner for
refunding the house rent allowance which
was deducted from his post retiral benefits.
Therefore, we are of the considered opinion
that the judgement relied upon by learned
counsel for the appellants would be of no
help to him. The learned Single Judge was
right in applying the principles laid down in
Rafiq Masih in directing refund of the
amount.

11. In the result, the appeal lacks merit
and is accordingly, dismissed.
----------
(2023) 5 ILRA 367
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.04.2023

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE PRASHANT KUMAR, J.

Special Appeal Defective No. 196 of 2023

State of U.P. & Ors. ...Appellants
Versus
Mohd. Janbaz Alam ...Respondent

Counsel for the Appellants:
C.S.C.

Counsel for the Respondent:
Sri Updendra Upadhyay

A. Service Law - Recovery from pension -
Civil Service Regulations - Regulation 351A - The Governor has been given right to
recover
pecuniary
loss
from
the
pensionary benefits, if the pensioner is
found
in
departmental
or
judicial
proceedings to have been guilty of grave
misconduct or to have caused pecuniary
loss to the Government by misconduct or
negligence during his service. Moreover,
the departmental proceedings, if initiated
after retirement, would only be with
sanction of the Governor and shall be in
respect of any event which took place not
more
than
four
years
before
the
institution of such proceedings. (Para 11)

In the instant case, admittedly, no departmental
or judicial proceedings were initiated against the
writ petitioner before directing recovery of the
amount from the pensionary benefits. There
was also no sanction
of the Governor.
Concededly, the alleged excess payment was
made in the year 2011-12 and definitely, it
related to an event which took place much more
than four years before order was passed for
recovery of the amount (Moreover, the State did
not raise any objection in relation to this excess
payment while the writ petitioner was in
service). Therefore, the said amount was not
recoverable at this distance of time in view of
the safeguards provided u/Regulation 351-A.
(Para 9, 12)

B. The letter of the petitioner dated
11.07.2016, cannot by any stretch of
imagination, be construed as a concession
368 INDIAN LAW REPORTS ALLAHABAD SERIES
or undertaking on part of the writ
petitioner
to
deduct
the
amount
in
question from his pensionary benefits on
permanent basis. It, on the other hand,
clearly shows that the petitioner, even at
that time, did not agree to the recovery,
but
only
agreed
for
withholding
it
temporarily so as to facilitate release of
the remaining pensionary benefits.

The State had withheld the pensionary benefits
of the writ petitioner for considerable period
after
his
retirement.
Consequently,
the
petitioner had agreed for temporary withholding
of the amount in dispute and for releasing the
remaining amount. It also transpires from the
record that the respondents released the
gratuity in the year 2017 only after deducting
the aforesaid amount. It only reflects his
helplessness and despair because of one-sided
illegal action of the employer in withholding his
pensionary benefits for more than two years,
after his retirement. (Para 16)

Special appeal dismissed. (E-4)

Precedent followed:

1. St. of Pun. & ors. Vs Rafiq Masih (White
Washer), (2015) 4 SCC 334 (Para 7)

2. Thomas Daniel Vs St. of Kerala & ors., Civil
Appeal No. 7115 of 2010 (Para 7)

Present
appeal
assails
judgement
of
learned Single Judge dated 02.11.2022 by
which, the writ petition filed by the
respondent was allowed and the amount
recovered from the writ petitioner in
pursuance of orders impugned dated
08.09.2016 and 02.05.2017 was directed
to be restituted.

(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Prashant Kumar, J.)

Order in the Delay Condonation
Application

1. Heard learned counsel for the
parties.

2. The explanation for the delay
furnished in the affidavit accompanying the
delay condonation application is found to
be satisfactory.

3. Accordingly, the delay is condoned.

4. Office is directed to allocate a
regular number to the instant appeal.

Order on the Memo of Appeal

5. Heard Shri Ramanand Pandey,
learned Standing Counsel for the appellants
and Shri Upendra Upadhyay for the
respondent.

6. The State is in appeal against the
judgement of learned Single Judge dated
02.11.2022 by which, the writ petition filed
by the respondent (hereinafter referred to as
the "Writ Petitioner") was allowed and the
amount recovered from the writ petitioner
in pursuance of orders impugned dated
08.09.2016 and 02.05.2017 was directed to
be restituted within a period of three
months.

7. The facts necessary for disposal of
the instant appeal are that the petitioner had
retired on 30.06.2014 from the post of
Junior
Engineer,
Rural
Engineering
Services, Ghazipur. On 08.09.2016, the
Executive Engineer, Rural Engineering
Services, Division- Ghazipur, issued an
Office Order approving recovery of a sum
of Rs. 3,10,022/- from the petitioner. The
order records that by mistake the petitioner
was given benefit of the 3rd Assured Career
Progression Scheme from 12.08.2008,
though he was entitled to it from
5 All. State of U.P. & Ors. Vs. Mohd. Janbaz Alam
369
01.12.2008. The difference amount was
consequently sought to be recovered
thereby. The order dated 02.05.2017 is a
communication sent by Additional Director,
Treasury and Pension, Varanasi Mandal,
Varanasi to Senior Treasurar, Treasury,
Ghazipur by which approval had been
granted for release of gratuity to the
petitioner after deducting Rs. 4,09,878/-. It
is common ground between the parties that
it includes the amount of Rs. 3,10,022/-
allegedly paid in excess to the petitioner
because of the petitioner having been
granted benefit of A.C.P. from an earlier
date. It also includes another sum of Rs.
99,856/-. It represents the amount allegedly
paid in excess by the petitioner to a
contractor during his service-tenure in the
year 2011-12. The learned Single Judge has
held that both the recoveries were illegal
and could not have been made in view of
the law laid down by the Supreme Court in
State of Punjab and Others v. Rafiq
Masih (White Washer) (2015) 4 SCC 334
and Thomas Daniel v. State of Kerala &
Others (Civil Appeal No. 7115 of 2010).

8. Shri R.N. Pandey, learned Standing
Counsel submitted that learned Single
Judge committed a manifest error of law in
applying Rafiq Masih (supra) to the facts
of the instant case inasmuch as recovery of
Rs. 99,856/- was on account of excess
payment made by the petitioner to the
contractor.
It
is
submitted
that
the
judgement in case of Rafiq Masih (supra)
would apply only to cases of wrong
fixation of salary or payment of excess
allowances but not where the employee
was guilty of causing pecuniary loss to the
State by making excess payment to the
contractor.

9. On the other hand, learned counsel
for the respondent submitted that the
alleged payment of excess amount to the
contractor is based on a unilateral opinion
formed by the respondent-Department after
his retirement. It is submitted that a
contract for a sum of Rs. 56.15 lakhs was
duly
approved
and
after
the
work
thereunder was satisfactorily executed, the
payment was released. The State did not
raise any objection in relation to the
payment made to the contractor while the
writ petitioner was in service. After his
retirement, no such recovery can be
directed. It is submitted that under
Regulation 351-A of the Civil Service
Regulations,
such
an
action
is
not
permissible as there was no sanction of the
Governor and also because the event in
respect of which, the recovery is sought to
be made, took place more than four years
before the institution of the proceedings.

10. It is clear from the rival
contentions that the instant appeal is
confined only to the alleged excess
payment made by the writ petitioner to the
contractor. The relevant part of Regulation
351-A of Civil Service Regulations is
extracted below :-

"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
Government, if the pensioner is found in
departmental or Judicial proceedings to
have been guilty of grave misconduct, 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-
370 INDIAN LAW REPORTS ALLAHABAD SERIES

(a)
such
departmental
proceedings, if not instituted while the
office 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
proceeding ; 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 sub-clause (ii) of clause
(a)."

11. The Governor has been given right
to recover pecuniary loss from the
pensionary benefits, if the pensioner is
found
in
departmental
or
judicial
proceedings to have been guilty of grave
misconduct or to have caused pecuniary
loss to the Government by misconduct or
negligence during his service. Moreover,
the departmental proceedings, if initiated
after retirement, would only be with
sanction of the Governor and shall be in
respect of any event which took place not
more than four years before the institution
of such proceedings.

12. In the instant case, admittedly, no
departmental or judicial proceedings were
initiated against the writ petitioner before
directing recovery of the amount from the
pensionary benefits. There was also no
sanction of the Governor. Concededly, the
alleged excess payment was made in the
year 2011-12 and definitely, it related to an
event which took place much more than
four years before order was passed for
recovery of the amount. Consequently, we
are of the opinion that the said amount was
not recoverable at this distance of time in
view of the safeguards provided under
Regulation 351-A.

13. Learned State counsel also tried to
contend that the petitioner had agreed for
deduction of the aforesaid amount in his
letter dated 11.07.2016 and, therefore,
cannot resile from the undertaking and
challenge the same.

14. Learned counsel for the writ
petitioner has vehemently disputed the said
contention. He has invited the attention of
the Court towards the alleged admission
contained in letter dated 11.07.2016 and
contended that thereby the writ petitioner
only agreed for temporary withholding of
the aforesaid amount so that the payment of
the remaining amount is made to him
without any further delay.

15. The letter of the petitioner dated
11.07.2016 containing alleged admission is
as follows :-

16. It is clear from the letter that the
State had withheld the pensionary benefits
of the writ petitioner for considerable
period after his retirement. Consequently,
the petitioner had agreed for temporary
withholding of the amount in dispute and
for releasing the remaining amount. It also
transpires
from
the
record
that
the
respondents released the gratuity in the
year 2017 only after deducting the
aforesaid amount. The said letter cannot by
5 All. State of U.P. & Ors. Vs. Mohd. Janbaz Alam
371
any stretch of imagination, be construed as
a concession or undertaking on part of the
writ petitioner to deduct the amount in
question from his pensionary benefits on
permanent basis. It, on the other hand,
clearly shows that the petitioner, even at
that time, did not agree to the recovery, but
only agreed for withholding it temporarily
so as to facilitate release of the remaining
pensionary benefits. It only reflects his
helplessness and despair because of onesided illegal action of the employer in
withholding his pensionary benefits for
more than two years, after his retirement.

17. The learned Single Judge has
considered this aspect and has observed as
follows :-

"Insofar as the loss suffered by
the State on account of excess payment
made by the petitioner to the tune of Rs.
99,856/- to the contractor for the work
contract executed, such a loss is alleged to
be suffered by the State is of the year
2011-12 when the petitioner was in
service. After the retirement when the
petitioner came to know with regard to the
aforesaid recovery been made from the
petitioner, the petitioner by means of
application
dated
12.03.2016
filed
objection
to
the
aforesaid
recovery
explaining that the amount has been paid
to the contractor as is permissible under
law. The objection raised by the petitioner
against the aforesaid recovery of excess
payment made to the contractor was not
decided by the employer and as such
reminder dated 20.03.2016 was sent to the
Executive Engineer.

Thereafter
on
31.03.2016,
respondent no. 3 forwarded a letter to
respondent no. 4 directing that the
representation of the petitioner should be
decided at the earliest. However, no order
was passed by the respondents on the
aforesaid objection of petitioner. The
petitioner thereafter has further submitted
a representation dated 01.04.2017 and
22.05.2017. The stand in the counter
affidavit in paragraph 15 is that the
representations of the petitioner were
decided by order dated 08.09.2016 and
20.04.2017. A perusal of above-mentioned
orders dated 08.09.2016 and 28.04.2017
would demonstrate that the objection by
the
petitioner
against
the
aforesaid
recovery
by
filing
of
objection/representation has not been
considered and an order has been passed
mechanically and without application of
mind to the objection raised by the
petitioner against recovery. It is to be
noted that the employee can always show
by filing representation/objection that the
recovery/loss
to
the
State
is
not
attributable to the petitioner and that the
payment has been made in accordance
with law. The employer is required to
consider the case of the petitioner in the
light of objection raised by the employee.
However in the present case, the objection
raised by the employee by means of
representation have not been considered
nor the same has been decided. Such an
approach by the employer is in gross
violation of principles of natural justice
and fair play."

18. No exception can be taken to the
view expressed in this regard by the learned
Single Judge.

19. No other submission has been
made by learned State Counsel.

20. The appeal lacks merit and is
accordingly, dismissed.

21. No order as to costs.
372 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 5 ILRA 372
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, C.J.
THE HON'BLE J.J. MUNIR. J.

Special Appeal No. 225 of 2023

Managing Director, U.P. State Bridge
Corporation Ltd., Lucknow & Ors.
 ...Appellants
Versus
Prabhat Kumar Jha ...Respondent

Counsel for the Appellants:
Sri Pranjal Mehrotra

Counsel for the Respondent:
Sri Binod Kumar Tripathi, Sri Ashish Kumar
Singh, Sri Binod Kumar Tripathi

A. Service Law - Disciplinary proceedings
- Uttar Pradesh Cooperative Societies
Employees Service Regulations, 1975 - In
service
jurisprudence
disciplinary
proceedings commence on the date when
the charge-sheet is issued and not earlier.
All other transactions in contemplation of
disciplinary proceedings, such as the
preliminary inquiry, a show cause and the
like,
do
not
constitute
initiation
of
disciplinary proceedings. (Para 14)

Assuming that the charge-sheet was approved
by the Managing Director in the month of
February, 2012, whilst the writ petitioner retired
from service on 31.12.2013, the Inquiry Officer
issued the charge-sheet on 02.12.2014, a fact
about which the parties are ad idem. We notice
the
oddity
that
the
Managing
Director's
endorsement on the charge-sheet approving it,
does not mention the date below his signatures,
but merely mentions the month and the year.
This kind of an endorsement in someway
derogates from the sanctity of something as
solemn as the approval of a charge-sheet.
It is almost impossible to accept the contention
of
the
learned
Counsel
for
the
Bridge
Corporation that the charge-sheet having been
approved in the month of February, 2012, while
the
writ
petitioner
was
still
in
service,
disciplinary proceedings ought to be regarded as
initiated against him in the year 2012. (Para 13,
14)

B. All laws affecting substantive rights are
prospective in operation unless expressly
made retrospective.

The writ petitioner retired from service on
31.12.2013 and the charge-sheet was issued on
02.12.2014.
Disciplinary
proceedings
were
initiated
against
the
writ
petitioner
on
02.12.2014 and not in the month of February,
2012, while the writ petitioner was still in
service. There is nothing in the amended rules
notified on 27.10.2018 and framed in the
meeting of the Board of Directors of the Bridge
Corporation to show that these rules would have
retrospective operation. There is no hint about it
in the amended Rule 50 or 51 added to the
Model Conduct Discipline and Appeal Rules for
the Service of U.P. State Enterprises. The
amended Rules confer a substantive
right on the Bridge Corporation to
initiate disciplinary proceedings against
a retired employee about matters that
fall within four years when disciplinary
proceedings are initiated. It likewise
affects the substantive right of an
employee to be insulated from initiation
of departmental proceedings once he
has retired and no longer in the employ
of the Bridge Corporation. Therefore,
there is no basis to hold that the amended
Rules that have come into effect from
27.10.2018,
would
have
retrospective
operation and govern the rights of the Bridge
Corporation, vis-à-vis the writ petitioner. (Para
15, 17)

Disciplinary proceedings initiated against the
writ petitioner by the Bridge Corporation on the
basis of the impugned charge-sheet are without
jurisdiction. (Para 18)

Special appeal dismissed. (E-4)

Precedent followed: