Satish Chandra, J.—

Restored vide order of date passed on C. M. Application No.37080 of 2010.

Heard Mr.Ashutosh Sahai, holding brief for Mr.Ramesh Pandey, learned Counsel for the petitioner and Mr.H.P. Srivastava, learned Additional Chief Standing Counsel.

By means of instant writ petition, the petitioner prays for quashing the order dated 2.9.1999, whereby it was directed that a sum of Rs.2,63,882/- shall be recovered from his gratuity, since he retired from service from the post of District Cane Officer on 30.6.1999 and in case the above amount is more than the amount towards the gratuity, it shall be deducted from the pension of the petitioner by way of monthly instalments a total of which shall not be more than 1/3rd of the total pension of petitioner. Further, he prays for a direction to restrain the opposite parties from proceeding any further with the enquiry proceedings, in view of the fact that the petitioner has since retired on 30.6.1999.

Brief facts of the case are that at the relevant time, the petitioner who was posted as District Cane Officer in District Mathura was also Ex Officio Chairman of Ganna Sewa Pradhikaran. The functions of Shakari Ganna Vikas Samiti Cooperative Cane Society, Chhata, Mathura are to take supply and make payment of sugarcane, supply of Fertilizers and seeds etc. to the farmers. The Secretary of the Society is the Cane Inspector. The Society comprises 11 members of which the petitioner happens to be the Chairman and Cane Development Officer happens to be the Secretary and rest are elected persons. The decisions taken by the Samiti are binding upon the Chairman. During the petitioner's posting at Mathura, a charge sheet for certain irregularities was issued to him on 9.3.1998. The petitioner submitted his reply to the said charge sheet on 10.8.1998 denying the charges levelled against him inter alia on the ground the charges are false and frivolous as also baseless and they do not relate to the petitioner and moreover, petitioner is in the supervisory capacity of the Chairman of the Society and the decisions taken by the Society collectively are binding on all the functionaries including the petitioner as it is a majority decision. Thereafter, the Enquiry Officer submitted his report to the Government on 13.8.1998 without holding any enquiry, but concluded the enquiry solely on the basis of reply tendered by the petitioner. The Enquiry Officer did not inform the petitioner about the date, time and place for holding the enquiry. Further, the Enquiry Officer also did not permit the petitioner to cross-examine the witnesses, which supported the case of the department and he was also not permitted to lead the evidence in support of his defence or innocence. The Enquiry Officer without giving any opportunity and without applying the principles of natural justice and without following the provisions of Rule 55 of the CCA Rules, completed the enquiry, only on the basis of reply submitted by the petitioner and forwarded it to the State Government. Thereafter, the petitioner was issued a show cause notice on 17.10.1998 proposing to inflict major punishment upon the petitioner. Though the petitioner submitted his reply to the show cause notice on 18.12.1998 denying all the charges on the ground that he was not responsible in the matter and as such no major punishment could be awarded to him, yet without considering his reply, the State Government passed the impugned recovery order dated 2.9.1999.

Learned counsel for the petitioner submits that the enquiry has been concluded on the basis of reply submitted by the petitioner and no date, time and place had been fixed by the Enquiry Officer for holding enquiry. The enquiry held by the Enquiry Officer is a sham enquiry and as such, no punishment order could be passed. Further, he submits that the payment has been made by Sri Hoti Lal only beyond the prescribed date which has been treated to be an embezzlement in the eyes of law which is not at all embezzleme

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