# Vikas Chandra Srivastava 666(S/S) 2015 v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 770
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-29
- **Case number:** Special Appeal No. 106 of 2015
- **Bench:** Dinesh Maheshwari, Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikas-chandra-srivastava-666-s-s-2015-v-state-of-u-p-ors-43177
- **Pages:** 7

## Headnote

High Court Rules-Chapter VIII Rule-5Special
Appeal-against
judgment
of
Single
Judge-as
direction
of
State
Government to file Civil Suit-for loss of
8.83 Lakhs-even after retirement-writ
petition not maintainable being mere
communication-held justified-warrantsno interference-Appeal dismissed.
Held: Para-17
In the present case, as noticed, the
departmental
proceedings
stood
annulled with the order of the learned
Single Judge dated 08.01.2010 in Writ
Petition No. 1127 (SS) of 2007. There are
allegations of misfeasance against the
appellant; and the respondents assert
that by his acts and omissions, the
appellant caused loss to the Government
that was
required to be recovered.
Though,
in
these
proceedings,
no
comments are being made finally on the
merits of the claim of the respondents,
but in the totality of circumstances, we
are clearly of the view that an action in
the writ jurisdiction, so as to even
prevent filing of a Civil Suit, was not to
be entertained; and the learned Single
Judge cannot be faulted in finding the
writ petition to be entirely misconceived.

## Text

770
 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissing the baseless writ petition filed
by the appellant.
15. Consequently, this Appeal
stands dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.07.2015
BEFORE
THE HON'BLE DINESH MAHESHWARI, J.
HON'BLE RAKESH SRIVASTAVA, J.
Special Appeal No. 106 of 2015
Vikas Chandra Srivastava 666(S/S) 2015
 ...Appellant
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Appellant:
Arvind Kumar
Counsel for the Respondents:
C.S.C.
High Court Rules-Chapter VIII Rule-5Special
Appeal-against
judgment
of
Single
Judge-as
direction
of
State
Government to file Civil Suit-for loss of
8.83 Lakhs-even after retirement-writ
petition not maintainable being mere
communication-held justified-warrantsno interference-Appeal dismissed.
Held: Para-17
In the present case, as noticed, the
departmental
proceedings
stood
annulled with the order of the learned
Single Judge dated 08.01.2010 in Writ
Petition No. 1127 (SS) of 2007. There are
allegations of misfeasance against the
appellant; and the respondents assert
that by his acts and omissions, the
appellant caused loss to the Government
that was
required to be recovered.
Though,
in
these
proceedings,
no
comments are being made finally on the
merits of the claim of the respondents,
but in the totality of circumstances, we
are clearly of the view that an action in
the writ jurisdiction, so as to even
prevent filing of a Civil Suit, was not to
be entertained; and the learned Single
Judge cannot be faulted in finding the
writ petition to be entirely misconceived.
(Delivered by Hon'ble Dinesh Maheshwari, J.)
1. By way of this intra-Court
Appeal, the petitioner-appellant seeks to
challenge the order dated 9.3.2015 passed
in Writ Petition No.666 (SS) of 2015
whereby, the learned Single Judge has
declined to exercise writ jurisdiction
under Article 226 of the Constitution of
India in the appellant's challenge to the
communications dated 09.09.2013 and
16.09.2013, by which, the concerned
authorities were directed to file a Civil
Suit for recovery of the amount of loss
said to have been caused by the appellant
to the Government.
2. Put in a nutshell, the basic
submissions of the petitioner-appellant in
the writ petition had been that no such
Civil Suit was maintainable against him
and hence, the orders issued for filing of
the suit suffered from want of authority of
law; and further, for having been issued
without opportunity of hearing, called for
interference in the writ jurisdiction. The
learned Single Judge, however, found the
writ petition to be rather misconceived
with the observations that the question of
maintainability of the suit was to be
examined by the trial Court, where the
petitioner-appellant
could
file
his
objections. The learned Single Judge,
therefore, dismissed the writ petition with
a short order that reads as under:-
"Supplementary affidavit filed in
court, today, be placed on record.
2 All] Vikas Chandra Srivastava 666(S/S) 2015 Vs. State of U.P. & Ors.
771
By means of instant writ petition, the
petitioner is challenging the order dated
09.09.2013 and 16.09.2013 by which
directions have been issued to Engineerin-Chief, Public works Department, to file
a suit for recovery of losses caused by the
petitioner to the department.
On a query being made to learned
counsel for petitioner as to how the present
writ petition is maintainable, learned counsel
for petitioner submitted that the order of
filing of civil suit against the petitioner for
recovery towards the losses caused by him to
the department is without authority of law
and the same has been passed without
affording any opportunity of hearing to the
petitioner, therefore, the instant writ petition
is maintainable.
Sri
Badrul
Hasan,
learned
Additional Chief Standing Counsel, while
opposing the writ petition submitted that
the petitioner will get ample opportunity
to contest the suit by raising all pleas as
have been raised by him in the instant
writ petition, therefore, the writ petition is
not maintainable.
I have considered the submission of
learned counsel for rival parties and gone
through the record as well as the
impugned order.
The State Government has directed
for filing of civil suit for recovery of
losses caused by the petitioner to the
department. The question as to whether
the civil suit would be maintainable or
not, is to be examined by the trial court,
where
the
petitioner
may
file
his
objection.
In view of above, this Court, while
exercising
extra-ordinary
jurisdiction
under Article 226 of the Constitution,
finds
that
the
writ
petition
being
misconceived is not maintainable.
Accordingly, the writ petition is
dismissed."
3. Put in brief, the relevant
background aspects of the matter had
been that the appellant served with the
Public
Works
Department
of
the
Government of Uttar Pradesh and retired
from service on 31.07.2005 as Junior
Engineer.
Prior
to
his
retirement,
departmental proceedings were initiated
against the appellant by the order dated
27.3.2004 for the irregularities, said to
have been committed during the period
2002-04; and he was placed under
suspension by the order dated 31.3.2004.
The appellant superannuated during the
pendency of enquiry.
4. It appears that permission to
continue with the proceedings after
retirement
of
the
appellant
under
Regulation 351-A of the Civil Service
Regulations was granted on 10.5.2006.
Ultimately, the departmental proceedings
were concluded by an order of the
concerned
Chief
Engineer
dated
28.12.2006 whereby, an amount of
Rs.8.83 lakhs was ordered to be recovered
from the post-retiral dues of the appellant
after he was found liable for the loss
caused to the Public Exchequer to the
above extent.
5. Aggrieved by the aforesaid order
dated 28.12.2006, the petitioner-appellant
preferred a Writ Petition [No.1127 (SS) of
2007] which was considered and allowed
by a learned Single Judge on 08.01.2010,
essentially on the ground that the enquiry
proceedings were conducted in disregard
of the principles of natural justice and as
such, the impugned order suffered from
serious infirmities. The order of recovery
was accordingly quashed with directions
to the respondents to "make the payment
of all the retiral benefits forthwith". The
petitioner-appellant asserts that this order
772
 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 08.01.2010 passed in Writ Petition
No.1127 (SS) of 2007 has attained
finality.
6. The petitioner-appellant had
stated grievance in the manner that in the
teeth of the aforesaid order of this Court
dated 08.01.2010, the respondent-Chief
Engineer addressed a communication to
the State Government on 22.11.2010
seeking permission to recover the loss
through the Civil Court as 'civil liability'
of the appellant whereupon, the State
Government constituted a Committee who
made
a
recommendation
for
audit
inspection and, on the basis of the audit
report, the State Government proceeded to
issue a direction to recover an amount of
Rs.30,69,072/- from the appellant by way
of a Civil Suit; and a communication was,
accordingly, sent by the Secretary to the
Chief Engineer (Development), Public
Works Department on 09.09.2013; and
later on, consequential communication
was issued by the Chief Engineer
(Litigation)
to
the
Chief
Engineer,
Faizabad
Division,
Faizabad
on
16.09.2013 for filing of the Civil Suit.
Pursuant
to
the
aforesaid
communications, a legal notice dated
31.12.2014 was sent by the ADGC
(Civil), Faizabad to the appellant and
upon receipt of this notice, the appellant
filed the writ petition leading to this
appeal
against
the
aforesaid
communications dated 09.09.2013 and
16.09.2013.
7.
The writ petition was essentially
founded on the ground that the said
communications
were
wholly
without
jurisdiction and were issued after nine years
of the retirement of appellant and without
prior opportunity of hearing to him. The
appellant also filed a supplementary affidavit
in support of the writ petition with the
submissions that there was no alternative
remedy available to him to challenge to the
impugned orders/directions issued by the
State Government and hence, the remedy of
writ petition had rightly been taken recourse
of. It was also submitted that the impugned
orders/directions
were
wholly
without
jurisdiction as the Service Regulations and
Conduct Rules do not confer any such power
on the State Government. It was yet further
submitted
that
the
impugned
directions/orders had been issued in violation
of the principles of natural justice. It was still
further submitted that the civil liability could
not be determined by the Civil Court and that
the jurisdiction of the Civil Court was barred
under the U.P. Public Services Tribunal Act,
1976 ['the Act of 1976']. It was also
submitted that directions could not be issued
by the State Government for curtailing or
attaching the pension, which is recognized as
a right to property by the Hon'ble Supreme
Court.
8. As noticed above, the learned
Single Judge found the writ petition to be
rather misconceived, particularly when
the maintainability of the Civil Suit was
to be examined by the trial Court, where
the appellant could file his objections.
9. Learned counsel for the appellant
has strenuously argued that the learned
Single Judge has not appreciated the
grounds urged on behalf of the petitionerappellant and has erred in treating the
petition as misconceived. Learned counsel
has particularly referred to the decision of
the learned Single Judge of this Court
dated
08.01.2010
in
Writ
Petition
No.1127 (SS) of 2007 and submitted that
earlier, the question of loss to the
Government was dealt with in the
impugned
departmental
order
dated
2 All] Vikas Chandra Srivastava 666(S/S) 2015 Vs. State of U.P. & Ors.
773
28.12.2006 and was finally pronounced
against the respondents by this Court and
thereafter, all the retiral dues were also
paid to the appellant. Thus, according to
the learned counsel, the respondents are
not entitled to initiate any proceeding and
that too by way of Civil Suit on the same
cause of action. Learned counsel has also
submitted
that
the
impugned
communications dated 09.09.2013 and
16.09.2013
could
not
have
been
challenged by the petitioner-appellant in
any other proceedings and in not
entertaining the writ petition would
practically amount to rendering the
appellant remediless in his challenge to
these
wholly
unauthorized
orders.
Learned counsel has also submitted that
the orders impugned, apart from being
contrary to the final order of this Court,
also suffer from violation of the principles
of natural justice inasmuch as the
appellant
was
not
afforded
any
opportunity of hearing before passing the
same. Learned counsel has also submitted
that the proposed action against the
appellant is directly barred by the
principles of res judicata as also under the
Act of 1976 and hence, the matter calls
for interference in the writ jurisdiction.
Learned counsel has referred to the
decision of the Hon'ble Supreme Court in
the case of Punjab State Civil Supplies
Corpn. Ltd. Versus Sikander Singh
[(2006) 3 SCC 736] and has also referred
to Section 6 of the Act of 1976.
10.

Having
given
thoughtful
consideration to the submissions made on
behalf of the petitioner-appellant and
having examined the record, we are
satisfied that the writ petition as filed by
the appellant could have only been, and
has
rightly
been,
dismissed
as
misconceived.
11. In the first place, we are unable
to find any legal right in the appellant to
even
question
the
impugned
communications dated 09.09.2013 and
16.09.2013 by way of a writ petition. As
noticed, they had only been intradepartmental communications from one
office to the other with a direction that a
Civil Suit for recovery of the amount be
filed
against
the
appellant.
Such
communications neither envisaged any
opportunity of hearing to the appellant
nor, by themselves, imposed a liability on
the appellant. Pursuant to the said
communications, the officers concerned
appeared to have made preparations for
filing of a Civil Suit and before doing so,
a notice was served upon the appellant,
calling upon him to make payment and
informing him that on failure, a Civil Suit
would be filed. These communications by
themselves
cannot
be
considered
furnishing a cause to the petitionerappellant to maintain an action by way of
writ petition. Thus, the submission that
the petitioner is rendered remediless as
regards
his
challenge
to
these
communications remains baseless and is
of no avail.
12. Apart from the above and even if
it be given that upon considering himself
aggrieved, the petitioner-appellant was
entitled to approach this Court in the writ
jurisdiction, it remains trite that exercise
of writ jurisdiction is essentially that of
discretion of the Court that could always
be declined on the relevant facts and
factors.
13. The petitioner-appellant wanted
to assert, and the same has been the
endeavour before us too, that the recovery
of any amount from him towards the
alleged loss by way of a Civil Suit would
774
 INDIAN LAW REPORTS ALLAHABAD SERIES
be directly hit by the principles of res
judicata in view of the order dated
08.01.2010 passed in Writ Petition
No.1127 (SS) of 2007. For the order
proposed to be passed, we would refrain
from making final comments on the
suggestion of the petitioner-appellant, but
prima facie, it is difficult to accept the
submissions
that
merely
for
the
disciplinary proceedings having been
quashed for the reasons stated in the order
dated 08.01.2010 and retiral dues having
been paid, the appellant has acquired total
immunity from an action in the Civil
Court for recovery of the amount of
alleged loss caused to the Government.
However, without any further comment in
this regard, suffice it to observe for the
present purpose that the question as to
whether a particular suit or issue is to be
tried by the Civil Court, or is not to be
tried for having been directly and
substantially
in issue in
a
formal
proceeding between the same parties, is to
be determined with reference to several
factors; and the plea of res judicata is
required to be determined on the basis of
several questions of facts. The foundation
of plea of res judicata has to be laid in the
pleadings before the Court and then
decision on such a plea is to be invited in
accordance with law. The principles of res
judicata cannot be applied in abstract and
that too before a Civil Suit has in fact
been filed or an action has been taken,
where such a plea could be taken and
determined.
The
proper
stage
for
determination of the question of res
judicata could only be upon filing of a suit
and raising of this question in appropriate
manner.
14. Similarly, the other submission,
as regards bar over the action per Section
6 of the Act of 1976 also appears to be a
pre-mature one. Though prima facie, it is
again difficult to accede that Section 6 of
the Act of 1976, which bars filing of Civil
Suit against a Government or local
authority, as such would bar the action of
the present nature by the Government too
in the Civil Court, but without final
comments even in that regard, for the
present purpose, suffice it say that under
the Code of Civil Procedure, even a
question of bar of the suit could be raised
in
appropriate
manner
and
at
the
appropriate stage.
15. So far as the referred decision of
the Hon'ble Supreme Court in the case of
Sikander Singh (supra) is concerned, it is
difficult to find any support to the case of
the appellant therefrom. In the first place,
it is noticed that the said decision was
rendered in the proceedings arising out of
a Civil Suit, which was filed by the
appellant-Corporation for recovery of
price of quantity of wheat which was
found to be short for the negligence of the
defendants; and it had been a common
action against the two defendants. The
trial Court found defendant No.1 alone
guilty of misappropriation of the goods
and held the appellant entitled to recover
the amount towards price of goods and
interest @ 18% per annum. The High
Court, in appeal, held that the audit report
was not admissible in evidence as the
contents were not proved and in any
event, no interest was payable on the
amount
of
damages.
The
Hon'ble
Supreme
Court
found
that
in
the
departmental proceedings, the defendant
No.1 was asked by the appellant to
deposit requisite number of bags or pay
the price thereof while holding him
responsible towards 2/3rd of loss, and the
said order was complied with and had
attained finality. It was held that such a
2 All] Vikas Chandra Srivastava 666(S/S) 2015 Vs. State of U.P. & Ors.
775
matter could not be re-opened. As regards
defendant No.2, it was noticed that no
finding had been arrived at that he, for
any intent and purpose, appropriated any
article to his advantage and thus, the
Hon'ble Supreme Court questioned as to
how he could have been proceeded under
the common law by way of Civil Suit?
Yet further, the Hon'ble Supreme Court
observed that a suit might have been
maintainable only if he was found to have
misappropriated the goods. The appellant
has chosen to refer to paragraphs 18 and
19 of the said decision. However, it
appears
appropriate
to
reproduce
paragraphs 18 to 20 of the said decision
for the present purpose as under:-
"18. The Appellant is "State" within
the meaning of Article 12 of the
Constitution. The terms and conditions of
service by and between the appellants and
the respondents herein are governed by the
service rules and/or terms and conditions of
contract. If the respondents herein had
committed misconduct they could have been
and in fact were departmentally proceeded
with. In the said departmental proceedings
appropriate punishments had been imposed
upon them. So far as Respondent-defendant
1 is concerned, therein his negligence had
been held to have contributed to the loss of
2/3rd of the shortages and by way of penalty,
he was asked by the Appellate Authority to
deposit the requisite number of bags of
wheat and/ or pay the price thereof. The said
order having been complied with attained
finality, it is binding on the appellant. The
dispute cannot, therefore, be permitted to be
reopened.
19. If the Appellant herein intended
to
proceed
further
against
the
Respondent-defendant 1, it could have
done so by questioning the correctness or
otherwise of the said order of the
Appellate Authority before an appropriate
forum. Deposit of the requisite number of
bags of wheat and/or price thereof
resulted in Respondent-defendant 1's
reinstatement pursuant to an order passed
by the High Court as also this Court. For
his act of misconduct, he had also been
denied back wages. If in the departmental
proceedings, Respondent-defendant 1 had
been asked to pay a penalty by way of
recovery of loss to the extent of which he
was found responsible, we are of the
opinion that no civil suit could have been
maintained for the selfsame cause of
action.
20. So far as Respondent-defendant 2
is concerned, no finding of fact has been
arrived at that he for any intent and
purport appropriated any article to his
advantage. In the absence of such a
finding, we fail to understand as to how
under the common law, he could be
proceeded against by way of a civil suit
for recovery of money. A civil suit for
recovery might have been maintainable
only
if
he
was
found
to
have
misappropriated the goods. Admittedly he
has not. He was said to be negligent in
performing his duties."
16. Thus, one of the factual aspect
clearly emerging from the said decision is
that as against defendant No.1 therein,
recovery of loss had already been ordered
and effected; and therefore, the Hon'ble
Supreme Court found that the matter
could not have been re-opened. Secondly,
in relation to defendant No.2, the Hon'ble
Supreme Court clearly observed that a
suit for recovery might have been
maintainable if he was found to have
misappropriated the goods.
17. In the present case, as noticed,
the
departmental
proceedings
stood
776
 INDIAN LAW REPORTS ALLAHABAD SERIES
annulled with the order of the learned Single
Judge dated 08.01.2010 in Writ Petition No.
1127 (SS) of 2007. There are allegations of
misfeasance against the appellant; and the
respondents assert that by his acts and
omissions, the appellant caused loss to the
Government that was required to be
recovered. Though, in these proceedings, no
comments are being made finally on the
merits of the claim of the respondents, but in
the totality of circumstances, we are clearly
of the view that an action in the writ
jurisdiction, so as to even prevent filing of a
Civil Suit, was not to be entertained; and the
learned Single Judge cannot be faulted in
finding the writ petition to be entirely
misconceived.
18.
Accordingly and in view of the
above, this Appeal fails and is, therefore,
dismissed. However, in the interest of justice,
we again make it clear that none of the
observations herein would be construed as
final opinion on the merits of the
issues/questions that may be raised in an
action before the Civil Court and such
issues/questions shall be determined by the
Civil Court strictly in accordance with law.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.07.2015
BEFORE
THE HON'BLE ATTAU RAHMAN MASOODI, J.
Service Single No. 145 of 2006
Dinesh Narayan Mishra
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Rakesh Kumar Singh
Counsel for the Respondents:
C.S.C.
U.P. Civil Services Regulations-Regulation
351-A-Recovery from gratuity-based upon
show cause notice-neither charge sheetednor disciplinary action initiated-whether
such recovery can be justified? held-'No'-as
per
regulation
351-A-after
retirement
without permission of Governor-no such
order could be passed-even without charge
sheet-order quashed.
Held: Para-14
Once it is concluded that no disciplinary
proceedings were pending against the
petitioner and the same are incapable of
being
initiated
against
him
after
retirement, passing of the impugned
order merely on the strength of show
cause notice which stood abated is voidabnitio and the impugned order of
recovery cannot be enforced against the
petitioner.
(Delivered by Hon'ble Attau Rahman
Masoodi, J.)
1. Heard learned Counsel for the
petitioner and learned Standing Counsel
for respondents.
2. By means of this writ petition, the
petitioner has assailed the order dated
12.12.2005 whereby a recovery of Rs.
89728.02 has been imposed on him and
proportionate amount of gratuity stands
withheld
from
the
post-retiral
dues
admissible to the petitioner. There is a prayer
for release of the amount coupled with the
prayer for setting aside the impugned order.
3. The impugned order has come to
be passed on the basis of show cause
notice issued to the petitioner on
08.07.2005 in respect of allegations which
relate
from
1993-94
to
1996-97.
Concededly the allegations are stale and
relate to period of time beyond four years
from the date of petitioner's attaining the
age of superannuation on 30.11.2005.