IMPORTANT POINT
Retiral dues cannot be withheld on ground of misconduct without any enquiry.

ORDER

Leave granted.

2. This appeal is directed against order dated 31.05.2016, passed by the High Court of Judicature at Allahabad, in Special Appeal Defective No. 408 of 2016, whereby the intra-court appeal was dismissed affirming the order dated 10.12.2015 passed by the learned single Judge in Writ-A No. 49921 of 2015.

3. Brief facts of the case are that respondent Dhirendra Pal Singh was Assistant Store Superintendent with the Irrigation Department of the State of Uttar Pradesh. He stood retired on 30.06.2009 on attaining the age of superannuation. At the time of his retirement GPF, leave encashment and 70% of gratuity and pension were cleared, but rest of the 30% of gratuity and computation of pension were held up. The stand of the appellants is that there were some discrepancies in the stock in the store of the department and some enquiries were going on as to loss caused to the public exchequer. After making representations when the remaining amount of gratuity and pension was not cleared, the respondent filed Civil Suit No. 338 of 2012. However, the same was dismissed as withdrawn as the appellants/State authorities, vide order dated 23.07.2015 finally, on the basis of alleged discrepancies withheld the remaining part of gratuity and pension of the respondent and, vide order dated 06.08.2015, directed recovery of Rs.7,26,589/-, from the retiral dues payable to the respondent, which was challenged in the writ petition.

4. There was no departmental enquiry initiated against the respondent and after about more than six years order as to finally withholding of remaining pension on the ground of alleged misconduct and the recovery was directed to be made from the respondent after serving a notice on him. Learned single Judge of the High Court found that the orders challenged in the writ petition cannot be sustained in law as neither recourse of Article 351-A of UP Civil Service Regulations was resorted to, nor any departmental enquiry was held. Learned single Judge further directed that the remaining amount of gratuity and pension of the respondent shall be released with interest at the rate of 10% p.a. on the sum withheld by the State authorities. The Division Bench, in special appeal filed by the State, found no illegality in the order passed by the learned single Judge.

5. We have heard learned counsel for the appellants and the respondent.

6. Article 351-A of UP Civil Service Regulations reads as under:

“351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement.

Provided that:

(a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment –

(i) Shall not be instituted with the sanction of the Governor,

(ii) shall be in respect of event which took place not more than four years before the institution of such proceedings, and

(iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.

(b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a), and

(c) the Public Service Commission, U.P., shall be consulted before final orders are passed.

Explanation – For the purposes of this article –

(a) departmental proceedings shall be deemed to have been instituted when the charges framed against the p