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Court No. - 35

Case :- WRIT - A No. - 25285 of 2018

Petitioner :- Kashi Nath Pandey

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Sadhu Sharan

Counsel for Respondent :- C.S.C.,Pranjal Mehrotra,Vimlesh Kumar

Rai

Hon'ble Ajit Kumar,J.

Heard Sri Sadhu Sharan, learned counsel for the petitioner and

Sri Vimlesh Kumar Rai, learned counsel for the respondent nos.2 and 3.

By means of this petition under Article 226 of the Constitution of

India, the petitioner has challenged the notice dated 13.9.2018 whereby

a recovery has been ordered of Rs.2,80,965/- to be recovered in

installments of Rs.8514/- per month whereas the amount of

Rs.10,00,000/- due upon the petitioner has already come to be adjusted

against his gratuity amount.

The ground taken for assailing the order is that the petitioner got

retired wayback on 30.6.2015 from 2nd Construction Division, U.P. Jal

Nigam, Ghazipur and yet without there being any enquiry held in the

matter the respondents have wholly illegally and arbitrarily proceeded to

recover the amount.

A counter affidavit has come to be filed in the matter by the

contesting respondents in which a number of documents has been

brought on record which demonstrate that the petitioner was earlier

issued with a no dues certificate on 28.7.2017 in which it was noticed

that he had a liability to adjust the amount of various articles,

accounting to Rs.12,80,965/- and since he had not been able to show

the disposal, the financial liability was fastened upon him and so notice

was issued to him on 16.9.2017 to deposit back the amount, failing

which, appropriate proceedings would be withdrawn for recovery of the

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amount. This notice dated 16.9.2017 came to be challenged before this

Court in Writ A No.5878 of 2017, which was disposed of by the Division

Bench of this Court in terms of following directions:

'The petitioner is a retired officiating Assistant

Engineer. He has been called upon by the impugned

notice dated 16.9.2017 to appear before the office of

the Executive Engineer to Dwitiya Nirman Khand, U.P.

Jal Nigam, Ghazipur to get the amount of Rs.

12,80,965/- due against him adjusted against his post

retiral dues.

The grievance of the petitioner is that in pursuance of

the aforesaid notice whenever he attends the office,

nothing is done and reminders are issued to the

petitioner.

The aforesaid grievance of the petitioner can easily be

resolved by directing the respondent no. 3 to meet the

petitioner in person to make adjustment of the amount

due within a period of one months from today.

The petitioner is directed to appear before respondent

no. 2 on 18.12.2017.

Sri Vimlesh Kumar Rai, learned counsel for the

respondent will communicate about the said date to the

respondent no. 3, who will ensure his availability on the

said date.

The writ petition is disposed of.'

In compliance of the order of Division Bench of this Court (Supra)

the petitioner was issued with a notice on 26.12.2017 but it is stated

that he neither appeared before the authority, nor submitted any reply to

the notice. Resultantly, the Department proceeded to pass the order

dated 13.9.2018 to recover the amount of Rs.12,80,965/- and out of

which Rs.10 lacs were adjusted against the gratuity amount already

witheld and in respect of the remaining Rs.2,80,965/-, recovery was

ordered in the terms of installments.

Sri Rai, learned counsel for the respondent nos.2 and 3 has

argued that the Executive Officer of the Construction Division of U.P. Jal

Nigam, Ghazipur was a necessary party as conditional no dues

certificate was issued by him only on 28.7.2017 and, therefore, the writ

petition was liable to be dismissed on the ground of non joinder of

necessary parties.

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Besides the above, he submits that very conduct of the petitioner

in preferring this petition and not impleading the Executive Officer of

Construction Division, Ghazipur shows that the petitioner wanted