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2014 (2) TMI 1433 - HC - Indian LawsRecovery of amount from the gratuity and pension of the petitioner under the provisions of Rule 9(1) of the U.P. Retirement Benefits Rules, 1961 - Guilty for misappropriation of funds - HELD THAT:- Rule 7 (vii) of the U.P. Government Servant (Conduct and Appeal) Rules, 1999 deals with the procedure for imposing major penalties and enjoins that where the charged Government Servant denies the charge, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government Servant, who shall be afforded an opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the Inquiry officer shall call and record the oral evidence which the charged Government Servant desired in his written statement to be produced in his defence. Rule 8 deals with the submission of enquiry report, whereas Rule 9 prescribes action on the enquiry report. In State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan, [1960 (11) TMI 130 - SUPREME COURT], State of U.P. v. Shatrughan Lal and another [1998 (7) TMI 689 - SUPREME COURT] and State of Uttaranchal and others v. Kharak Singh, [008 (8) TMI 1026 - SUPREME COURT], the Apex Court has emphasized that a proper opportunity must be afforded to a Government servant at the stage of the enquiry, after the charge-sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal and others v. Kharak Singh the Apex Court has enumerated some of the basic principles to be observed in the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. It is required to be examined that whether there is any defect in the enquiry or not. The petitioner, while submitting reply, as indicated in para 11 of the writ petition, has stated that he may be permitted to cross-examine S/Shri D.N. Upadhyaya, Ram Surat Dubey, D.N. Verma, Uma Shanker Shukla, Santoshi Ram and few other persons but during the course of enquiry, only Santoshi Ram was examined and no other witness was called for. In paragraph 16 of the rejoinder-affidavit, the petitioner has specifically stated that he was not permitted to cross-examine the witnesses nor any personal hearing was afforded - No documentary evidence has been produced by the respondents to establish that it is the petitioner, who did not cross-examine the witnesses though he was afforded ample opportunity. In para 29 of the writ petition, it may be added that the petitioner requested for cross-examination of Shri Ram Surat Dubey and Shri B.N. Upadhaya, who, as indicated in para 7 of the counter-affidavit, that they have submitted report against the petitioner. Despite requests, the Enquiry Officer did not call them for cross-examination and submitted its report. Thus, the enquiry was conducted not only in the breach of the principles of natural justice but in violation of the Rules, referred. 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 - 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. However, this rule has certain exceptions which are germane for determination of the controversy in hand. It may be added that there are specific provisions in Regulation 351-A, which are to be followed before initiating the disciplinary proceedings against a retired employee. The conditions for the purpose of invoking Regulation 351-A have not been satisfied. There is no valid approval of Governor and the matter regarding the alleged misconduct relates to four years prior to institution of proceedings. In other words, alleged misconduct has been committed beyond the period of four years as contemplated under the Rules. On plain reading of the Regulations, it clearly emerges that the same cannot be invoked in the present case. The impugned order of punishment dated 20.3.2001 is hereby quashed. The unpaid terminal benefits due to the petitioner together with admissible interest shall be paid to the petitioner, expeditiously, say, within a period of three months from the date of receipt a certified copy of this order - Petition allowed.
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