Hon’ble Sunil Hali, J.—During the course of his employment, the petitioner was posted in the office of the District Horticulture Officer, Moradabad as Assistant Horticulture Inspector. A departmental enquiry was initiated against him for which a chage-sheet was served upon him. He was placed under suspension on 20.8.1986. Consequently, an Enquiry Officer was appointed to probe the charges. While the enquiry was under process, the petitioner was reinstated vide order dated 19.1.1987. The disciplinary proceeding are stated to have continued for petty long time. During the pendency of the departmental proceedings the petitioner was superannuated on 30.9.1999.

2. The petitioner was served a copy of the show-cause notice by the Enquiry Officer on 16.9.2001. He was required to file his objection to the same. After receipt of the objections, the impugned order dated 6.3.2003 was passed holding the petitioner guilty of the charges levelled against him. As a consequence of which 5% pensionary benefits were required to be deducted from his pension and his period of suspension was treated as on duty. This order is subject-matter of challenge before this Court.

3. Learned counsel for the petitioner contended that no opportunity of being heard was given to the petitioner as there was no evidence to support the allegations levelled against the petitioner. He further contends that after retirement, departmental proceedings could not have continued against him as there is no provision which provides continuance of the departmental proceedings after the retirement of the employee. Lastly, it is contended that there is no provision under the U.P. Government Servant (Disciplinary and Appeal) Rules, 1999 (in short as the ‘Rules’) to impose a penalty for recovery to be made from the post retirement emoluments of a retired employee.

4. The stand of the respondent is that the recovery against the petitioner can be effected by invoking Regulation 351 of the Civil Service Regulations (in short as the’ Regulations’), which provides for withholding or withdrawing a pension or any part of it from the post retirement benefits of the retired employee with the prior approval of the Governor.

5. I have heard the learned counsel for the parties.

6. The services of the petitioner are governed by U.P.Government Servant (Disciplinary and Appeal) Rules, 1999. The rules contemplate that an enquiry can be conducted against a person appointed to public services and posts in connection with the affairs of the State of Uttar Pradesh. The power to impose penalty is contained under the Rules of 1999 which provides penalties which can be imposed against the Government servants. There is no provision under the Rules allowing the enquiry to be conducted against the person who has retired from service. In absence of any such rule, the enquiry cannot be continued against a Government servant who has retired. However, there is an exception provided under Regulation 351, which provides that the State Government has a right of withholding or withdrawing a pension or any part of it if the pensioner is convicted of serious crime or guilty of grave misconduct. Regulation 351-A provides that the Government has a right to withhold or withdraw a pension or any part of it whether permanently or for a specific period and also has a right to order for the recovery from a pension of the whole or part of any pecuniary loss caused to the 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 the Government by misconduct or negligence, during his service.

7. However, this rule has certain exceptions which are germane for determination of the controversy in hand. It contemplates that no such enquiry can be conducted if not instituted while the officer was on duty either before the retirement or during re-employment :

(a) Such enquiry cannot be instituted without the sanction of the Gover