Hanif Ahamad v. State of U.P. and
Case Details
Court No. - 38 Case :- WRIT - A No. - 6324 of 2023 Petitioner :- Hanif Ahmad Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Anil Kumar Yadav Counsel for Respondent :- C.S.C.
Legal Reasoning
Hon'ble Saurabh Srivastava,J. 1. Heard Sri Anil Kumar Yadav, learned counsel for the petitioner and Sri Rajesh Kumar Tiwari, learned Additional Chief Standing Counsel. 2. The present petition has been filed seeking the following relief:- "i. Issue a writ order or direction in the nature of Certiorari quashing impugned order dated 11.05.2022 passed by this respondent no.4 (Annexure No.25 of this writ petition). ii. Issue a writ order or direction in the nature of Mandamus commanding and directing to the respondent no.4 to release amount Rs.5,05,922/- as recovery from the gratuity of the petitioner along with the interest according with law. iii. Issue a writ order or direction in the nature of Mandamus commanding and directing to the respondent authorities to give interest to the petitioner on the amount of retiral benefits between the period since 01.01.2020 to 11.05.2022 (till date of actual payment)." 3. It is the case of the petitioner that he was working on the post of Gram Panchayat Adhikari. On serious allegation of mis-utilization of fund for plantation as well as construction of toilets, 33.33% of the total sum allocated for the said purpose has been sought to be recovered from the petitioner vide order dated 28.11.2017. The said order of recovery has been set aside by a Division Bench of this Court vide order judgment dated 20.03.2018 passed in Special Appeal No.245 of 2018 (Hanif Ahamad Vs. State of U.P. and 5 others). The said judgment dated 20.03.2018 is being quoted hereinbelow:- "This Special Appeal is directed against the order dated 22 February 2018 passed by a learned Judge of this Court granting time to the respondents to file the counter affidavit after perusing the instructions placed by learned Standing Counsel.
Decision
The writ petition had been filed by an Assistant Development Officer, Block Shahpur, Tehsil Budhana in District Muzaffar Nagar to assail the recovery order dated 28 November 2017 passed by the Deputy Commissioner/Up- Ayukta, Shram Rojgar (MGNREGA), Muzaffar Nagar. It is sought to be contended by Sri Ashok Khare, learned Senior Counsel appearing for the appellant that in regard to the two persons mentioned in the show-cause notice and the impugned order, interim orders had been granted by the Court but in the case of the appellant, the Court granted time to the learned Standing Counsel to file the counter affidavit. It is also the submission of learned Senior Counsel for the appellant that though the show- cause notice dated 7 October 2017 was issued by the District Magistrate/District Programme Co-Ordinator, Muzaffar Nagar requiring the petitioner to submit a reply within three days and even though the petitioner had submitted a reply but the impugned order dated 28 November 2017 neither refers to the show-cause notice or the reply submitted by the petitioner. It is, therefore, his submission that the impugned order deserves to be set aside for the reason that principles of natural justice had not been complied with. Learned Standing Counsel appearing for the respondents has, however, contended that the impugned order does not call for interference as the learned Judge has only asked the State to file the counter affidavit after perusing the instructions. We have considered the submissions advanced by learned counsel for the parties. In our opinion, no useful purpose would be served by keeping this Special Appeal or writ petition pending as the impugned order dated 28 November 2017 clearly indicates that neither the show-cause notice dated 7 October 2017 nor the reply submitted by the petitioner were considered by the Authority. In such circumstances, the Authority can be directed to pass a fresh order after considering the reply filed by the petitioner. The impugned order dated 28 November 2017 is, accordingly, set aside and the matter is remitted to the Authority to pass a fresh order expeditiously and preferably within a period of six weeks from the date a certified copy of this order is filed. The Special Appeal and the Writ Petition, accordingly, stand disposed of. A copy of this order shall also be placed in the writ petition. " 4. In pursuance of the said order, the District Magistrat, Muzaffarnagar vide order dated 11.06.2018 constituted three members Inquiry Committee to conduct a fresh inquiry. The Inquiry Committee never issued any notice to the petitioner to submit his reply and in the meantime, the petitioner was retired on 31.12.2019 after attaining the age of superannuation. Till the date of retirement of the petitioner, the inquiry initiated pursuant to the direction issued vide order dated 20.03.2018 was never completed. 5. Learned counsel for the petitioner argued that on 15.03.2021, the Executive Engineer wrote a letter to the SDM, Budhana, Muzaffarnagar that no inquiry required against the petitioner in pursuance of the judgment dated 20.03.2018. In spite of that, the respondent no.4 passed impugned order dated 11.05.2022 for recovery of Rs.5,05,922/- from the gratuity of the petitioner without notice and giving any opportunity of hearing to the petitioner and without compliance of the judgment dated 20.03.2018 as well as the inquiry was also not completed within the time fixed by the Division Bench and as such, the impugned order of recovery dated 11.05.2022 is illegal and against the law. 6. For substantiating his arguments, learned counsel for the petitioner relied upon a judgment rendered by a Full Bench of this Court in Abhishek Prabhakar Awasthi v. New India Assurance Company Limited and others, reported in 2014 (3) UPLBEC 1812 to submit that the enquiry proceedings if not concluded within the stipulated time-frame, becomes non-est unless and until the time-frame is extended by the Court itself. 7. Per contra, learned Additional Chief Standing Counsel vehemently opposed the prayer as made in the petition but did not dispute the factual position. 8. From perusal of the records, it appears that despite direction of the Division Bench of this Court vide judgment dated 20.03.2018, inquiry initiated against the petitioner has not been completed till the date of passing of the order which impugned the present petition, moreover, on 15.03.2021, the Executive Engineer also written a letter to the SDM, Budhana, Muzaffarnagar that no inquiry required against the petitioner in pursuance of the judgment dated 20.03.2018 and earlier order of recovery dated 28.11.2017 has already been set aside, the deduction of Rs.5,05,922/- from the gratuity of the petitioner vide order dated 11.05.2022 is illegal. 9. In view of the aforesaid facts and circumstance, the impugned order dated 11.05.2022 directing recovery of the aforesaid amount is hereby quashed and set aside and the instant petition is allowed. 10. It is also directed to the respondent no.4 to refund the deducted amount from the gratuity of the petitioner to the tune of Rs.5,05,922/- in favour of the petitioner within a period two months from the date of production of a certified copy of this order before him. Order Date :- 5.5.2023 Vivek Kr. Digitally signed by :- VIVEK KUMAR High Court of Judicature at Allahabad