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Mishri Lal v. State Of U.P. & Others - WRIT - A No. 49866 of 2002 [2005] RD-AH 3690 (29 September 2005)


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Civil Misc. Writ Petition No. 49866 of  2002.

Mishri Lal...............................................................Petitioner


State of U.P. and others........................................Respondents.


Hon.Tarun Agarwala,J.

 Heard Sri M.P.Gupta, the learned counsel for the petitioner and Sri Jai Kishan Tiwari, the learned Standing Counsel appearing for the respondents.

The  petitioner retired as a Block Development Officer on 31.1.2004. His post retirement benefits were not being released by the respondents. The petitioner approached the Lokayukt and by an order dated 7.6.1996 the Secretary, Lokayukt forwarded the complaint of the petitioner to the appropriate authority to consider the matter and release the pension. It seems, that subsequently the pension papers were processed and the pension was released. However, the amount of gratuity which the petitioner was entitled was not released. It transpires, that a sum of Rs.55,857.65 has been withheld from the gratuity on account of the respondents filing a Civil Suit No.188 of 1999 before the Civil Court, Badaun. The petitioner has filed the present writ petition praying that this amount which has been retained by the respondents is wholly illegal and contrary to the provisions of Regulation 351-A of the Civil Service Regulations.

The respondents in their counter affidavit have stated that an audit objection was raised indicating that the interest earned on Kshetra Nidhi Account amounting to Rs.55,857.65 was expended on different developmental activities by the petitioner without seeking prior approval and sanction from the State Government and that the respondents had taken a decision by an order dated 26.9.1999 to recover this amount by filing a civil suit.

The learned counsel for the petitioner submitted that the petitioner retired on 31.1.1994 whereas the suit was filed after more than four years in the Civil Court in the year 1999 and therefore, under Regulation 351-A of the Civil Service Regulations, the amount could neither be retained nor could it be recovered.

Regulation 351-A of the Civil Service Regulations is quoted herein 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 Govt. 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 save with the sanction of the      Governor,

(ii) shall be in respect of an 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)(a), and

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

From a perusal of the aforesaid clause, it is clear, that the previous approval is required from the Governor for initiating a departmental proceeding against a Government servant after his retirement. If a judicial proceedings is instituted, the same should only be in respect of an event which took place not more than 4 years before the institution of such proceedings. The amount so expended in the developmental activities by the petitioner relates to the year 1993. The petitioner also retired in the year 1994 and admittedly the suit was filed after more than 4 yours in the year 1999.

In view of the aforesaid, I do not find any justification in the action of the respondents in withholding a sum of Rs.55,857.65 merely on the ground that a suit for recovery had been filed  by them belatedly. Consequently, the writ petition is allowed. The petitioner is entitled to receive the amount of gratuity that is due and payable to him. The respondents are directed to release the entire amount of gratuity within three months from the date of the production of a certified copy of this order before the authority concerned. In the circumstances of the case, the claim of payment of the interest on the amount of gratuity is rejected. It is, however, made clear, that the Court is not expressing any opinion on the merits or demerits of the suit and in the event the suit is decreed, the amount shall be recovered from the petitioner in accordance with law.

Dated: 29.9.2005



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