High Court · 2025

3. Brief facts of the case are that initially the petitioner was appointed on 1-1-1982 on the post of District Commandant. He was promoted on the post of Divisional Commandant, Home Guard in the year 1995 then on the post of Deputy Commandant General, Home Guard in the year 2001 where he worked till the age of superannuation i.e. on 31-01-2015. Petitioner joined on the post of Deputy Commandant General, Central Training Institute, Home Guards, UP, Lucknow on 16- 02-2005.

4. It appears that a policy was made by the State Government for payment of training allowance at the rate of 15% of the basic pay to the officers posted at training institute for which a Government Order dated 12-05-1999 was issued, which was amended subsequently, by another Government Order dated 21- 08-1999 wherein it was provided that officers posted at Central Training Institute and have certificate of Design of Training (DOT)/Direct Trainers Skills (DTS) course shall be paid training allowance at the rate of 15%. Petitioner appears to have undergone the training of DTS and is having the certificate which is not disputed.

5. Subsequently, the State Government vide letter dated 17-01- 2006 asked recommendation from the opposite party No.2 for grant of training allowance to the petitioner to which vide reply dated 17-02-2006, the respondent No. 2 clarified that a proposal to the State Government for grant of training allowance to the petitioner has been sent. Thereafter, letters dated 21-03-2007, 17-04-2007 and 27-04-2007 appear to have been sent by the opposite party No. 2 for grant of training allowance to the State Government. Ultimately, vide letter dated 18-06-2007 sanction/permission was granted for payment of training allowance at the rate of 15% of the basic pay of the petitioner provided that he has having the DTS training certificate from ISTM (Institute of Secretarial Training and Management) which the petitioner admittedly is having and consequently, the order dated 28-06-2007 regarding payment of training allowance was issued and thus, payment of training allowance has been made to the petitioner with effect from 16-2-2005 to 15-5-2013. Thereafter the petitioner was transferred to District Basti as Deputy Commandant General.

6. It appears that vide impugned order dated 07-10-2014, which is an ex-parte order, it was decided that since the petitioner was not appointed in the aforesaid training institute on the basis of transfer and therefore, in view of the Government Order dated 12-05-1999 and 21-08-1999, he was not entitled for payment of the training allowance and thus, the amount paid to the petitioner was directed to be recovered by consequential order dated 29-1-2015 (Annexure No.3) whereby a direction was issued to recover the amount of Rs. 7,31,226/- from the gratuity of the petitioner. Thereafter, again, two consequential orders dated 21-11-2014 and 2-3-2015 were passed.

7. Learned counsel for the petitioner submits that the impugned orders contained as annexure numbers 1 to 4 are in violation of law laid down by Hon'ble Supreme Court in the cases of Syed Abdul Kadir and others vs. State of Bihar reported in [(2009) 3 SCC 475] and State of Punjab and others vs. Rafeeq Masih ; Civil Appeal No.11527 of 2014 decided on 18.12.2014.

8. He submits that the training allowance, first of all, was paid legitimately and there was no fault, no illegality in payment of the training allowance. Petitioner was indeed transferred in the training institute. He further submits that, even otherwise, the excess amount was not paid on account of any misrepresentation/fraud on the part of the employee/petitioner. It is also submitted that if the excess amount has been paid by the employer by wrongly calculating or by misinterpreting the Government Order which has been subsequently found to be erroneous, the recovery is vitiated. He submits that, while filing the counter-affidavit, the State has admitted the fact that it was a bona fide mistake on their part.

9. It is further submitted that no departmental inquiry/disciplinary proceedings have been initiated by the opposite parties against the petitioner neither any opportunity whatsoever was given and, therefore, the impugned orders are liable to be set aside in view of the Judgement passed by Hon'ble Supreme Court in the case of State of Jharkhand and another versus Jitendra Kumar Srivastava, reported in [(2013) 12 SCC 210].

10. He has further submitted that the alleged recovery of training allowance cannot be done from the post-retiral dues/gratuity of the petitioner particularly without following the due process of law. The act of the opposite parties is in violation of Articles 14 and 19 of the Constitution of India.

11. It is lastly contended by the learned counsel for the petitioner that similarly situated persons in the finance department as well as in the police departments have been granted training allowances.

12. Per contra, learned Standing Counsel has opposed the contention. It is submitted that impugned orders are rightly being passed. Petitioner was wrongly paid the training allowance. He was not posted in the training institute either on deputation or on the basis of transfer.

13. Perused the record.

14. A perusal of the record shows that it is not disputed between the parties that petitioner was posted at the concerned training institute. He was paid the training allowances pursuant to the Government Orders contained in Annexure Nos.6 and 7 dated 12-05-1999 and 21-08-1999. It is evident from the perusal of Government Order dated 12-05-1999 that those officers shall be entitled for getting training allowances who were posted at the training institute on the basis of deputation/transfer.

15. Likewise, Government Order dated 21-08-1999 further shows that the training allowances shall be given to the officer posted in the training institute who is having the DOT/DTS certificate. It is not disputed that petitioner is having the DOT certificate. Vide order dated 18-06-2007 contained Annexure No.13, the payment of training allowances at the rate of 15% appears to have been sanctioned to the petitioner. While sanctioning the training allowance in the said order dated 18- 06-2007, it has been clearly mentioned that petitioner has been sent in the training institute on the basis of transfer of service, the respondents have issued the impugned order contained in Annexure No.4 on the premise that the petitioner was not posted in the training institute on the basis of transfer/deputation, although while sanctioning, it is admitted that petitioner was transferred and posted as Deputy Commandant General in the concerned training institute.

16. It is also admitted that no departmental inquiry or disciplinary proceedings have been initiated against the petitioner for the recovery of the alleged amount, even show cause notice has not been issued to the petitioner although the impugned orders entails civil consequences.

17. The Supreme Court in the case of Jitendra Kumar Srivastava (supra) has held that without conducting departmental inquiry/disciplinary proceedings and providing opportunity of hearing, the impugned orders could not have been passed.

18. Likewise, in the case of Syed Abdul Kadir and Rafeeq Masih (supra), it has been held that undoubtedly the excess amount which has been paid to the incumbents was not because of their misrepresentation/fraud on their part and neither petitioner was aware that the amount being so paid to him was more than what he was entitled on the contrary, it was paid after due sanction from the State Government and therefore, on that count also, this recovery cannot be affected by the impugned orders.

19. In view of the discussions made hereinabove, since admittedly the petitioner was posted in the training institute on transfer therefore, it is covered by the Government Orders contained in Annexure Nos.6 and 7. Admittedly, no departmental proceedings have been initiated nor any opportunity of hearing was given and principles of natural justice have not been followed while passing the impugned recovery orders. Thus, in view of the law settled by the Supreme Court in the cases of Jitendra Kumar Srivastava (supra) and Syed Abdul Kadir (supra), the impugned recovery orders cannot be sustained and are accordingly set aside.

20. The writ petition is allowed and as a consequence gratuity amount which has been withheld on account of the impugned orders are directed to be released forthwith along with other consequential benefits. Order Date :- 21.3.2025 Saurabh Yadav/- SAURABH YADAV High Court of Judicature at Allahabad, Lucknow Bench

3. Brief facts of the case are that initially the petitioner was appointed on 1-1-1982 on the post of District Commandant. He was promoted on the post of Divisional Commandant, Home Guard in the year 1995 then on the post of Deputy Commandant General, Home Guard in the year 2001 where he worked till the age of superannuation i.e. on 31-01-2015. Petitioner joined on the post of Deputy Commandant General, Central Training Institute, Home Guards, UP, Lucknow on 16- 02-2005.

4. It appears that a policy was made by the State Government for payment of training allowance at the rate of 15% of the basic pay to the officers posted at training institute for which a Government Order dated 12-05-1999 was issued, which was amended subsequently, by another Government Order dated 21- 08-1999 wherein it was provided that officers posted at Central Training Institute and have certificate of Design of Training (DOT)/Direct Trainers Skills (DTS) course shall be paid training allowance at the rate of 15%. Petitioner appears to have undergone the training of DTS and is having the certificate which is not disputed.

5. Subsequently, the State Government vide letter dated 17-01- 2006 asked recommendation from the opposite party No.2 for grant of training allowance to the petitioner to which vide reply dated 17-02-2006, the respondent No. 2 clarified that a proposal to the State Government for grant of training allowance to the petitioner has been sent. Thereafter, letters dated 21-03-2007, 17-04-2007 and 27-04-2007 appear to have been sent by the opposite party No. 2 for grant of training allowance to the State Government. Ultimately, vide letter dated 18-06-2007 sanction/permission was granted for payment of training allowance at the rate of 15% of the basic pay of the petitioner provided that he has having the DTS training certificate from ISTM (Institute of Secretarial Training and Management) which the petitioner admittedly is having and consequently, the order dated 28-06-2007 regarding payment of training allowance was issued and thus, payment of training allowance has been made to the petitioner with effect from 16-2-2005 to 15-5-2013. Thereafter the petitioner was transferred to District Basti as Deputy Commandant General.

6. It appears that vide impugned order dated 07-10-2014, which is an ex-parte order, it was decided that since the petitioner was not appointed in the aforesaid training institute on the basis of transfer and therefore, in view of the Government Order dated 12-05-1999 and 21-08-1999, he was not entitled for payment of the training allowance and thus, the amount paid to the petitioner was directed to be recovered by consequential order dated 29-1-2015 (Annexure No.3) whereby a direction was issued to recover the amount of Rs. 7,31,226/- from the gratuity of the petitioner. Thereafter, again, two consequential orders dated 21-11-2014 and 2-3-2015 were passed.

7. Learned counsel for the petitioner submits that the impugned orders contained as annexure numbers 1 to 4 are in violation of law laid down by Hon'ble Supreme Court in the cases of Syed Abdul Kadir and others vs. State of Bihar reported in [(2009) 3 SCC 475] and State of Punjab and others vs. Rafeeq Masih ; Civil Appeal No.11527 of 2014 decided on 18.12.2014.

8. He submits that the training allowance, first of all, was paid legitimately and there was no fault, no illegality in payment of the training allowance. Petitioner was indeed transferred in the training institute. He further submits that, even otherwise, the excess amount was not paid on account of any misrepresentation/fraud on the part of the employee/petitioner. It is also submitted that if the excess amount has been paid by the employer by wrongly calculating or by misinterpreting the Government Order which has been subsequently found to be erroneous, the recovery is vitiated. He submits that, while filing the counter-affidavit, the State has admitted the fact that it was a bona fide mistake on their part.

9. It is further submitted that no departmental inquiry/disciplinary proceedings have been initiated by the opposite parties against the petitioner neither any opportunity whatsoever was given and, therefore, the impugned orders are liable to be set aside in view of the Judgement passed by Hon'ble Supreme Court in the case of State of Jharkhand and another versus Jitendra Kumar Srivastava, reported in [(2013) 12 SCC 210].

10. He has further submitted that the alleged recovery of training allowance cannot be done from the post-retiral dues/gratuity of the petitioner particularly without following the due process of law. The act of the opposite parties is in violation of Articles 14 and 19 of the Constitution of India.

11. It is lastly contended by the learned counsel for the petitioner that similarly situated persons in the finance department as well as in the police departments have been granted training allowances.

12. Per contra, learned Standing Counsel has opposed the contention. It is submitted that impugned orders are rightly being passed. Petitioner was wrongly paid the training allowance. He was not posted in the training institute either on deputation or on the basis of transfer.

13. Perused the record.

14. A perusal of the record shows that it is not disputed between the parties that petitioner was posted at the concerned training institute. He was paid the training allowances pursuant to the Government Orders contained in Annexure Nos.6 and 7 dated 12-05-1999 and 21-08-1999. It is evident from the perusal of Government Order dated 12-05-1999 that those officers shall be entitled for getting training allowances who were posted at the training institute on the basis of deputation/transfer.

15. Likewise, Government Order dated 21-08-1999 further shows that the training allowances shall be given to the officer posted in the training institute who is having the DOT/DTS certificate. It is not disputed that petitioner is having the DOT certificate. Vide order dated 18-06-2007 contained Annexure No.13, the payment of training allowances at the rate of 15% appears to have been sanctioned to the petitioner. While sanctioning the training allowance in the said order dated 18- 06-2007, it has been clearly mentioned that petitioner has been sent in the training institute on the basis of transfer of service, the respondents have issued the impugned order contained in Annexure No.4 on the premise that the petitioner was not posted in the training institute on the basis of transfer/deputation, although while sanctioning, it is admitted that petitioner was transferred and posted as Deputy Commandant General in the concerned training institute.

16. It is also admitted that no departmental inquiry or disciplinary proceedings have been initiated against the petitioner for the recovery of the alleged amount, even show cause notice has not been issued to the petitioner although the impugned orders entails civil consequences.

17. The Supreme Court in the case of Jitendra Kumar Srivastava (supra) has held that without conducting departmental inquiry/disciplinary proceedings and providing opportunity of hearing, the impugned orders could not have been passed.

18. Likewise, in the case of Syed Abdul Kadir and Rafeeq Masih (supra), it has been held that undoubtedly the excess amount which has been paid to the incumbents was not because of their misrepresentation/fraud on their part and neither petitioner was aware that the amount being so paid to him was more than what he was entitled on the contrary, it was paid after due sanction from the State Government and therefore, on that count also, this recovery cannot be affected by the impugned orders.

19. In view of the discussions made hereinabove, since admittedly the petitioner was posted in the training institute on transfer therefore, it is covered by the Government Orders contained in Annexure Nos.6 and 7. Admittedly, no departmental proceedings have been initiated nor any opportunity of hearing was given and principles of natural justice have not been followed while passing the impugned recovery orders. Thus, in view of the law settled by the Supreme Court in the cases of Jitendra Kumar Srivastava (supra) and Syed Abdul Kadir (supra), the impugned recovery orders cannot be sustained and are accordingly set aside.

20. The writ petition is allowed and as a consequence gratuity amount which has been withheld on account of the impugned orders are directed to be released forthwith along with other consequential benefits. Order Date :- 21.3.2025 Saurabh Yadav/- SAURABH YADAV High Court of Judicature at Allahabad, Lucknow Bench