IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 14130 of 2008 Judgement reserved on: 13.10.2011. Date of decision: 9.11.2011. Sita Ram Dhiman …..Petitioner. Vs. H.P. State Consumer Disputes Redressal Commission …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? 1 For the petitioner : Mr. P.P. Chauhan, Advocate. For the Respondent : Mr. J.S. Rana, Assistant Advocate General. Kuldip Singh, Judge. The petitioner has filed the petition for quashing office order dated 19.10.2006 Annexure A-1 passed by President, H.P. State Consumer Disputes Redressal Commission and communication dated 19.10.2006 Annexure A-2 issued by the Registrar of H.P. State Consumer Disputes Redressal Commission asking the petitioner to pay `24523/-. The prayer has also been made for a direction to respondent to refund the amount, if recovered, during the pendency of the petition with interest at the rate of 18% per annum. 2. The facts in brief are that post of the petitioner was upgraded as Assistant Registrar as a measure personal to the petitioner by the State Government on 29.1.2000. The petitioner retired as Assistant Registrar on 31.8.2004. The President of Whether the reporters of the local papers may be allowed to see the Judgment? …2… respondent-commission was pleased to allow the residential telephone No. 258625 in favour of petitioner vide office order dated 3.3.2000 in exercise of powers vested in him under Rule 19.6 of the H.P. Financial Rules, 1971 and notification dated 8.12.1994 and notification dated 4.3.1995. The petitioner started using the said telephone alongwith admissible allowance for using the said telephone. 3. The audit during the inspection of the accounts of respondent-commission raised objection regarding the use of said telephone in official capacity and payment of allowance. The objection was wrong and not tenable. The facility of telephone was provided to the petitioner as per job profile of the petitioner. The petitioner was required to use his personal telephone for official purpose quite often. There was nothing wrong in providing the telephone facility at the residence of the petitioner. The respondent- commission has failed to bring these facts to the notice of audit and remove audit objection. 4. The facility of the telephone was provided at the residence of the petitioner by an order of the President of respondent- commission. There was no fault or misrepresentation on the part of the petitioner. The impugned order has been passed by the respondent-commission under Rule 71(3) of CCS (Pension) Rules 1971, but the proposed recovery is not covered under the said Rules. 5. The petitioner at the time of retirement was forced to give an undertaking to refund the said amount otherwise his whole retiral benefits were being stopped. The petitioner initially refused to …3… give an undertaking but when retiral benefits of the petitioner were not released for quite a long time, the petitioner under the given facts and circumstances had no option except to give an undertaking to refund the said amount, so that retiral benefits of the petitioner are released and the petitioner is saved from the financial hardship towards his retirement. The undertaking given by the petitioner for releasing the retiral benefits is not binding on him. 6. The respondent contested the petition by filing reply. It has been stated that audit party from the Accountant General office, H.P. after conducting audit and inspection of accounts of respondent- commission for the period December 2000 to May 2004 in July 2004 pointed out that approval of the government for residential telephone at the residence of the Assistant Registrar was not obtained from the government, as such, an expenditure of `34600/- incurred by treating the residential telephone as official was irregular. The audit has advised that matter be again taken up with the government for approval or action to disconnect the telephone and to recover the entire amount be taken. The matter was taken up with the government. The State Government vide their letter dated 26.2.2005 did not concur with the proposal of the respondent, accordingly the petitioner was informed vide letter dated 5.3.2005. The government was also approached to give ex-post facto sanction, but the government again expressed its inability to concur with the proposal. 7. The petitioner was informed that amount of enhanced gratuity payable to him will be adjusted against the payment due and the balance to be recovered from him. He was requested to deposit …4… the balance amount of `24523/- as pointed out by the audit vide letter dated 10.7.2006. On the request of the petitioner, the government was requested to reconsider the matter but the government again rejected the proposal vide letter dated 9.10.2006. After final rejection, the impugned order for recovery of `36584/- from the petitioner was passed on 19.10.2006 and the amount of `12061/- on account of enhanced gratuity was ordered to be adjusted against the recoverable amount as that amount was already stood deposited in the treasury. 8. It has been stated that petitioner had given undertakings on 20.9.2004 and 11.11.2004 to the effect that in case the audit objection is not settled after sincere efforts of the respondent- commission, he would be liable to refund the amount immediately on the directions of the respondent-commission. The efforts were made by the respondent for approval from the government, but the government did not agree with the respondent. The respondent has thus supported the impugned orders. It has been stated that petitioner is estopped from filing the petition on account of his acts, omission, commission and acquiescence. It has been stated that while dismissing the petition, the petitioner may be directed to pay the balance amount of `24523/- with interest. 9. I have head Mr. P.P. Chauhan, learned counsel for the petitioner and Mr. J.S. Rana, learned Assistant Advocate General for the respondent. On behalf of the petitioner it has been submitted that office order dated 3.3.2000 Annexure A-3 clearly indicates that President of respondent-commission allowed residential telephone …5… No. 258625 to the petitioner as official in exercise of powers vested in him under H.P. Financial Rules 1971. It has been stated that facility of residential telephone was provided to the petitioner as per his job requirement. There is no allegation that residential telephone facility was provided to the petitioner on account of misrepresentation, fraud on the part of the petitioner. The petitioner used his residential telephone for official calls, now it is too late for the respondent- commission to recover any amount from the retiral benefits of the petitioner on account of use of telephone at his residence. It has been submitted that respondent is estopped from recovering any amount from the petitioner for using residential telephone. The undertakings relied by the respondent were not given by the petitioner of his free volition, he was compelled to give undertakings, the payment of retiral benefits of the petitioner were held up, and, therefore, under those circumstances, the petitioner had given the undertakings which are not binding on the petitioner. The learned Assistant Advocate General has submitted that petitioner was not entitled to have residential telephone connection. The illegality cannot be cured even by the order of President of respondent- commission. The petitioner has given undertakings that he will pay the amount in case the government would not approve the residential telephone of the petitioner. He has submitted that petition is bad for want of impleadment of State of Himachal Pradesh. 10. It has not been disputed that petitioner was allowed facility of residential telephone by the President of respondent- commission. This is otherwise clear from office order dated 3.3.2000 …6… Annexure A-3. It is the stand of the petitioner that he used the residential telephone for official calls. This fact has not been denied by the respondent. It emerges from the record that respondent had recommended the case of the petitioner to the government for approval of telephone at the residence of the petitioner and respondent even requested for ex-post facto sanction, but the government has not agreed to the proposal of the respondent- commission. The residential telephone was approved in favour of petitioner in March 2000 and he availed the facility till he retired on 31.8.2004. It is not the case of the respondent that petitioner was instrumental by playing fraud, misrepresentation for obtaining telephone facility at his residence. The respondent-commission by its overt acts provided telephone facility to the petitioner at his residence without following due procedure, but for the lapse of respondent- commission for not following the procedure, the petitioner cannot be blamed. The petitioner on his part also gave an undertaking that in case government will not approve the installation of telephone at his residence then he will pay the due amount, which is clear from his letter dated 20.9.2004. 11. The entire situation is the creation of respondent- commission, and, therefore, the petitioner cannot be blamed. The respondent now is estopped to recover `24523/- from the petitioner. The petitioner also undertook to refund the amount vide his undertaking dated 20.9.2004. The approval of residential telephone in favour of the petitioner by the President of respondent-commission was not conditional to the effect that in case approval is not granted …7… by the government then petitioner will pay the charges. The total amount recoverable from the petitioner on account of telephone dues at the petitioner’s residence comes to `36584/-. The respondent has already recovered `12061/- from the retirement gratuity of the petitioner, now only an amount of `24523/- is due and payable to the respondent-commission as per the communication dated 19.10.2006 Annexure A-2. Thus taking into consideration all the facts and circumstances of the case including the undertaking given by the petitioner on 20.9.2004, I am of the opinion that respondent is not entitled to `24523/- from the retiral benefits of the petitioner nor petitioner is entitled to recover `12061/- already recovered by the respondent-commission from the petitioner. 12. In view of above discussion, the petition is partly allowed. It is held that respondent is not entitled to recover `24523/- from the retiral benefits of the petitioner on account of telephone dues pertaining to the residence of the petitioner nor petitioner is entitled to recover `12061/- from the respondent, which has already been deducted by the respondent-commission from the retiral benefits of the petitioner. The petition stands disposed of on above terms. The pending applications are also disposed of. November 9, 2011. ( Kuldip Singh ), (Hem) Judge.