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PETITIONER: STATE OF HARYANA AND ORS.

       Vs.

RESPONDENT: SHRI K.N. DUTT

DATE OF JUDGMENT24/02/1995

BENCH: PARIPOORNAN, K.S.(J) BENCH: PARIPOORNAN, K.S.(J) VERMA, JAGDISH SARAN (J)

CITATION:  1996 AIR  183            1995 SCC  (3) 144  JT 1995 (3)   466        1995 SCALE  (2)5

ACT:

HEADNOTE:

JUDGMENT: PARIPOORNAN, J.: 1.   Delay condoned.  Leave granted. 2.   The  State  of  Haryana and  the,  Accountant  General, respondents  in Civil Writ Petition No. 9110 of 1993 in  the High  Court of Punjab and Haryana, arc the appellants.   The petitioner in the Civil writ petition is the sole respondent herein.   The  prayer  in  the  writ  petition  was  for   a declaration  that  the deduction of the  alleged  Government dues  from  DCRG  (Death-cum-Retirement  Gratuity)  of   the petitioner  is illegal and for a direction in the nature  of mandamus call- 468 ing upon the respondents in the writ petition  the State  of Haryana and the Accountant General  to refund the amount  of Rs.  24,996/-  along with interest at the rate  of  18%  per annum.  By order dated 10. 12.1993 the Division Bench of the High Court, comprising of Hon’ble Mr. Justice M.R. Agnihotri and  Hon’ble  Mr.  Justice  B.S.  Nehra,  allowed  the  writ petition  and directed the respondents in the writ  petition to refund the amount of Rs. 24,996/-, deducted by the  State Government  from the gratuity of the petitioner.   Aggrieved by  the  aforesaid  decision  of  the  Division  Bench   the appellants have come up in appeal. 3.   We  heard  counsel  on both sides.  The  matter  has  a chequered history.  The respondent, a retired Chief Engineer of  the  Irrigation Department in the Haryana State,  was  a senior responsible officer.  He retired on 30.11.1989. While in  service  the respondent had availed  of  House  Building Advance and Motor Car Advance loans against gratuity in  the years  1973 and 1976.  He had executed an agreement and  had signed  an  undertaking that in case he fails to  repay  the loan,  the  same  can be recovered from  his  gratuity  with interest at the time of his retirement from the service.  It seems  that disciplinary proceedings were initiated  against the  respondent,  which  resulted  in  withholding  of   the

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outstanding  retirement  benefits.   The  respondents  filed Civil  Writ  Petition  No.  12654 of  1990  and  prayed  for appropriate  reliefs.   A Division Bench of the  High  Court comprising  of  Mr. Justice M.R. Agnihotri and  Mr.  Justice K.P.  Bhandari,  directed the State  of  Haryana,  Financial Commissioner and the Accountant General, the respondents  in the writ petition, to release to the petitioner therein  all pensionary  benefits to which he was entitled to  under  the rules  as  the  charges were not served on  him  before  his retirement  on  attaining the age  of  superannuation.   The judgment is dated 21.11.1990. Thereafter, the matter took  a different turn.  The respondent herein initiated proceedings in  contempt  for  implementation  of  the  Judgment   dated 21.11.1990.  Finally,  a learned Single Judge  of  the  High Court  passed  the following order dated  28.4.1993  in  the matter:-               "The  proposition of law is well settled  that               recovery    of   government   dues   from    a               superannuated  employee can be made  from  the               gratuity.   As such, the respondent State  was               in  its  competence to deduct  the  government               dues  from  the gratuity  of  the  petitioner.               After deduction of the dues from the gratuity,               the  balance amount has been disbursed to  the               petitioner.  In this view of the matter,  this               court’s  order dated 21.11.1990 has been  duly               complied with.               COCP  is  accordingly  dismissed.   Rule  dis-               charged.  " Thereafter,  the respondent filed writ petition No. 9110  of 1993 and prayed for a declaration that the deduction of  the Government  dues  amounting  to Rs. 24,996/  from  the  DCRG amount  is  illegal and ultra vires and for a  direction  to refund  the said amount along with interest at the  rate  of 18%  per  annum.  In the writ petition  the  order  appealed against  was passed on 10.12.1993 by the Division  Bench  of the Punjab & Haryana High Court.  The Division Bench  opined that  no inquiry is pending against the respondent  nor  any Government dues are to be realised from him and so there  is no  legal  basis  to make any deduction  in  the  amount  of gratuity payable and directed the appellants to refund 469 a  sum  of  Rs. 24,996/-, deducted illegally  by  the  State Government  from the gratuity of the respondent.   Aggrieved by  the  aforesaid Judgment the appellant  have  filed  this appeal. 4.   It  is unnecessary to traverse the entire gamut of  the litigations  between  the  appellants  and  the  respondent. Briefly  stated,  in Civil Writ Petition 12654  of  1990,  a Bench  of  the High Court directed that all  the  pensionary benefits due to the respondent to which he would be entitled to  under  the  rules,  should  be  released  or  disbursed. Thereafter,  the  respondent initiated  certain  proceedings which finally culminated in contempt petition No. COCP  1080 of  1991.   Therein  the court passed  the  final  order  on 28.4.1993  justifying recovery of Government dues  from  the gratuity  payable  to the superannuated  employee  and  also stated  that after deduction of the dues from  the  gratuity payable,  the  balance disbursed to the petitioner  and  the order  passed  by the Court dated 21.11.1990 in  Civil  Writ Petition No. 12654 of 1990 has been duly compiled with.  The contempt petition was dismissed.  The order so passed by the learned Single Judge on 28.4.1993 has become final.  It  was not  taken in appeal before any forum.  The order binds  the parties  thereto,  namely,  the appellants as  well  as  the

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respondent.   In  spite of the above, the  respondent  filed Civil Writ petition No. 9110 of 1993 assailing deduction  of the Government dues from DCRG and praying for a direction to refund the amount of Rs. 24,996/- deducted from the gratuity of   the  respondent.   Without  adverting  to   the   prior proceedings and in particular the order passed by the  Court in  Contempt petition No. 1080 of 1990 dated  28.4.1993  the Division Bench allowed the prayer of the respondent and held that  a sum of Rs. 24,996/- has been deducted  illegally  by the  State  Government from the gratuity of  the  respondent which should be refunded forthwith.  It is rather surprising that  the Division Bench totally ignored the  earlier  order dated 28.4.1993, passed by the court.  It is anybody’s guess as to what promoted the Division Bench is ignore the earlier order  dated 28.4.1993 and to pass the impugned order  dated 10.  12.1993.  The  respondent, a  senior  retired  officer, himself owed a duty to bring to the notice of the Court  the earlier  order dated 28.4.1993. We are not in a position  to know whether it was so done, This is a serious lapse indeed, which cannot be countenanced.  It is an abuse of the process of  the  Court.  We are further inclined to  hold  that  the Division  Bench of the High Court seems to have  passed  the order  in  a causal manner in holding that the  sum  of  Rs. 24,996/- was deducted illegally by the State Government from the  gratuity of the respondent and in ordering the  refund. The order so passed is patently unsustainable, improper  and illegal.  Such a plea was not open to the respondent in  the light  of the earlier order of the Court dated 28.4.93.  The Division Bench acted illegally in entertaining such a prayer and  allowing it, totally ignoring the earlier order of  the same court passed in contempt petition No. COCP 1080 of 1991 dated  28.4.1993. We, therefore, set aside the order  passed by  the High Court dated 10. 12.1993 and allow  this  appeal with costs. 472