The show cause notice for recovery from a retired employee must have the necessary sanction of the Board of Directors, as per Regulation 351-A and Rule 9(1) of U.P. Retirement Benefits Rules, 1961.

JUDGMENT :

(1) This Special Appeal has arisen out of the judgment/order rendered by the Writ Court in Writ-A No.5341 of 2012 on 01.03.2023. By means of the impugned judgment, the Writ Court has allowed the writ petition with a further direction to pay retiral dues along with interest @ 7% per annum up to the actual payment made. Four months period was granted for making compliance of the judgment passed. The appellants, namely, U.P. Jal Nigam have come up against the aforesaid judgment in the present intra-court appeal filed under Chapter VIII Rule 5 of the High Court Rules.

(2) Learned counsel for the appellants has submitted that the respondent-petitioner had retired from service from the post of Junior Engineer on 30.04.2010. This fact was not disputed by the appellants before the Writ Court as well. It appears that a show cause notice was issued on 16.03.2011 against the respondent-employee alleging therein some irregularities on the strength of certain communications which were made from 2009 to 2010 while he was in service.

(3) In these circumstances, the case at hand is a case of initiation of proceedings after an employee, who had already retired from service. Learned counsel for the appellants has submitted that by virtue of an office memorandum dated 03.02.2003 the Board of Directors, erstwhile U.P. Jal Nigam had passed a resolution whereby the applicability of Civil Service Regulations as well as U.P. Government Servant (Discipline and Appeal) Rules, 1999 (here-in-after referred to as 'the Rules, 1999') was extended by reference to the employee of erstwhile U.P. Jal Nigam with a modification in Regulation 351-A. The modification in Regulation 351-A was to the extent that the word "Governor" shall be read as the Board of Directors. Therefore, the aforesaid rules became applicable to the retired employees of U.P. Jal Nigam for all purposes.

(4) Learned counsel for the appellants has argued that once the aforesaid rules are applicable to the retired employees of erstwhile U.P. Jal Nigam, leaned Single Judge fell in error while observing that no departmental proceedings were initiated or the ingredients of Regulation 351-A were not available; and the observations so recorded being perverse would vitiate the judgment impugned herein.

(5) According to the learned counsel, the issuance of show cause notice for the purposes of recovery did constitute initiation of departmental proceedings as per law and action taken for recovery from retiral dues and pension was after following the procedure of show cause notice calling for a reply duly complied with before passing the recovery order, thus, it was not open to the Writ Court to strike down the recovery order on such a ground. Learned counsel for the appellants has further argued that it is not a case where respondent-petitioner was deprived of the retiral dues without following due procedure under law and the case at hand was erroneously construed to be deprivation of property contrary to the mandate of law as provided under Article 300-A of the Constitution of India. Learned counsel for the appellants has also argued that the order of recovery passed after issuance of a show cause notice did not require any other except what was followed. The respondent-employee submitted his reply in response to the show cause notice and the same was considered by the competent authority while passing the order dated 18.08.2012 as well as the order dated 17.10.2011 giving rise to the writ petition.

(6) The sum and substance of the arguments made by the appellants' counsel is that the action taken against the respondent-petitioner being in consonance with the law and having afforded adequate opportunity, did not suffer from any jurisdictional error or procedural error. Therefore, allowing the writ petition in such circumstances along with 7% interest on the payment due is certainly an order c