Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Gratuity In Uttar Pradesh Cannot Be Forfeited Under Regulation 351-A Of The Civil Service Regulations.
JUDGEMENT TITLE : Bhagwati Prasad Verma Vs. State Of U.P. Thru' The Secy. Basic Edu. U.P. Shasan & Ors. On 10/09/2007 By Allahabad High Court
CASE NO : WRIT - A NO. 52482 OF 2003
CORAM : Hon'ble Vijay Manohar Sahai,J. And Hon'ble Shishir Kumar,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 52482 Of 2003

Bhagwati Prasad Verma ---------------------------- Petitioner
Versus
State Of U.P. And Others ---------------------------- Respondents

Hon'ble V.M. Sahai, J
Hon'ble Shishir Kumar, J

(Delivered By Hon'ble V.M.Sahai, J)
The Questions That Arise For Consideration In This Petition Filed By A Retired Government Servant Are Whether Gratuity Can Be Withheld Or Forfeited Under Regulation 351-A Of The Civil Service Regulations; Whether Payment Of Gratuity Can Be Stopped Under The Uttar Pradesh Retirement Benefit Rules, 1961 And The Uttar Pradesh Liberalised Pension Rules, 1961, Without Initiating Proceedings Under The Aforesaid Rules; Whether The Enquiry Suffered For Non-compliance Of Principles Of Natural Justice And Whether Permanent Curtailment Of 5% Pension Under Regulation 351-A Of The Civil Service Regulations Was Arbitrary And Contrary To Law?
The Petitioner Was Selected And Appointed In 1964 By The Public Service Commission, U.P As A Teacher In Government Inter College. He Was Promoted As Lecturer In 1974. In 1991 He Was Promoted To The Post Of Vice Principal. In 1994 He Was Promoted On The Post Of District Non Formal Education Officer And Was Posted At Allahabad. He Retired From Service On 31st July 1996. After About Two Years Of Superannuation The Governor On 22.6.1998 Granted Sanction For Institution Of Disciplinary Proceedings Under Regulation 351-A Of The Civil Service Regulations (in Brief The Regulations). Shri Shyam Narain Rai, Director Of Education III Allahabad Was Appointed As Enquiry Officer. The Enquiry Officer Sent A Charge Sheet Dated 22.6.1998 On Four Counts. It Was Served On The Petitioner On 14.7.1998. The Petitioner Submitted His Reply On 28.7.1998. The Enquiry Officer Submitted The Report Dated 31.8.1998 On 12.10.1998. A Copy Of The Enquiry Report, As Directed By The State Government, Was Sent On 4.5.2001 To The Petitioner By Joint Director Of Education, Allahabad Region. He By Another Letter Dated 23.8.2001 Asked The Petitioner To Submit His Representation To The Enquiry Report. The Petitioner Made A Representation On 4.9.2001. The Enquiry Officer Exonerated The Petitioner Of The First Charge. He Found Him Guilty Of Second And Third Charge And The Fourth Charge Was Found To Be Technically Proved. The State Government Acting On The Report Of Enquiry Officer Found The Petitioner Guilty Of The Charges And Directed Under Regulation 351-A Of The Civil Service Regulations That The Payment Of Gratuity To The Petitioner Should Be Stopped And An Amount Of 25% Of The Pension Payable To The Petitioner Be Deducted And Referred The Matter To The Commission For Its Opinion. The Commission Agreeing With The View Of The State Government That Gratuity Payable To The Petitioner Should Be Stopped, Recommended That Instead Of 25% Only 5% Of The Pension Amount Be Deducted. Thereafter The State Government Passed The Impugned Order Dated 3.5.2002, Directing That Petitioner's Gratuity Be Stopped And 5% Deduction Be Made From His Pension Permanently. However, The Other Post Retiral Benefits Were Released To The Petitioner. The Petitioner Has Challenged The Order Dated 3.5.2002 By Means Of This Writ Petition.
In The Counter Affidavit Filed By The Joint Director Of Education (Basic), U.P. It Has Been Stated That While The Petitioner Was Posted As District Non Formal Education Officer At Allahabad, Certain Irregularities Were Found In Purchase Of Some Departmental Items, Therefore, After His Retirement Regulation 351-A Was Invoked.
In The Counter Affidavit To The Amendment Application Filed By The Deputy Director Of Education, Services-II It Has Been Stated That Permission Under Regulation 351-A Was Granted By The Governor On 22.6.1998 And Thereafter Charge Sheet Was Served. In Both The Counter Affidavits It Has Been Stated That Ample Opportunity Of Hearing Was Given To The Petitioner During The Enquiry. The Enquiry Proceedings Were Concluded, According To The Respondents, In Accordance With The Principles Of Natural Justice.
In The Supplementary Counter Affidavit Sworn On 21.5.2007 And Filed On 25.5.2007 In Pursuance To The Direction Of This Court, It Is Admitted That No Date Of Enquiry Was Fixed. Neither The Petitioner Was Summoned To Participate In Enquiry Nor He Was Heard. It Is, However, Stated That The Enquiry Officer While Serving The Charge Sheet Had Clearly Mentioned That The Petitioner May Indicate The Evidence He Proposed To Rely And Whether He Desired Oral Hearing. What Was The Effect Of It In The Enquiry And Whether It Was Sufficient Compliance Of The Principles Of Natural Justice Would Be Discussed By Us A Little Later While Considering Whether The Impugned Order Suffered From Violation Of Principles Of Natural Justice.
We Have Heard Sri H.M.B. Sinha, Learned Counsel For The Petitioner And Sri R.K. Saxena, Learned Standing Counsel Appearing For The Respondents Who Has Also Produced The Records.
Learned Counsel For The Petitioner Has Urged That No Opportunity Of Hearing Was Afforded To The Petitioner By The Enquiry Officer After Submission Of The Reply To The Charge Sheet Nor Any Date, Time And Place For Enquiry Was Fixed. The Enquiry Officer Submitted His Report, Only After Considering The Reply Of The Petitioner Which Was In Violation Of Principles Of Natural Justice And Contrary To U.P. Government Servants (Discipline & Appeal) Rules, 1999, And On The Basis Of Such An Enquiry Report No Punishment Could Be Imposed On The Petitioner By The State Government. Learned Counsel Has Further Urged That Gratuity Payable To The Petitioner Could Not Be Stopped By The Respondents Under Regulation 351-A, In View Of The Uttar Pradesh Retirement Benefits Rules, 1961 And Uttar Pradesh Liberalised Pension Rules 1961. He Urged That The Entire Disciplinary Proceedings, Being Time Barred, Were Liable To Be Set Aside, In View Of The Fact That The Petitioner Had Retired From Service In July 1996, And He Is At Present About 70 Years Of Age. The Learned Counsel Further Submitted That Even If The Charges Were Found To Be Proved It Was At The Most An Irregularity And Not Misconduct Or Negligence, Much Less Grave Misconduct. The Learned Counsel Lastly Urged That The Provisions Of U. P. Pension Cases (Submission, Disposal And Avoidance Of Delay) Rules, 1995 Being Mandatory In Nature And The Disciplinary Proceedings Having Been Completed Beyond The Time Limit Fixed By The Rules Are Liable To Be Quashed.
On The Other Hand The Learned Standing Counsel By Placing Reliance On The Counter Affidavits And Supplementary Counter Affidavit Has Urged That Full Opportunity Of Hearing Was Afforded To The Petitioner. The Enquiry Proceedings Were Concluded By The Enquiry Officer In Accordance With Principles Of Natural Justice. The Enquiry Report And The Order Passed By The State Government Under Regulation 351-A Were Liable To Be Upheld As There Was No Violation Of U.P. Government Servants (Discipline & Appeal) Rules, 1999, The Uttar Pradesh Retirement Benefits Rules, 1961 And Uttar Pradesh Liberalised Pension Rules 1961. The Provisions Of U. P. Pension Cases (Submission, Disposal And Avoidance Of Delay) Rules, 1995 Are Directory In Nature. The Writ Petition Has No Merits And Is Liable To Be Dismissed.
Before Considering The Arguments Raised By The Learned Counsel For The Parties We Consider It Necessary To Notice The Provisions Relating To Withholding And Curtailment Of Pension And Gratuity. We May Also Mention That We Propose To Consider First The Legality Of Stopping Payment Of Gratuity, Then The Order Curtailing Pension, And In The End The Finding Whether The Order Was Liable To Be Quashed For Violation Of Principles Of Natural Justice, And In Any Case The Proceedings Under Regulation 351-A Having Not Been Completed Within Three Months As Provided By U. P. Pension Cases (Submission, Disposal And Avoidance Of Delay) Rules, 1995, Are Liable To Be Set Aside.
Regulation 351-A Of The Civil Service Regulations, Which Had Been Framed Under Proviso To Article 309 Of The Constitution, Is Extracted Below :-
"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 Government 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 Reemployment.
(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) Of Clause (a); And
(c) The Public Service Commission, U.P., Shall Be Consulted Before Final Orders Are Passed.

(Provided Further That If The Order Passed By The Governor Relates To A Case Dealt With Under The Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, It Shall Not Be Necessary To Consult Public Service Commission.)

Explanation-- For The Purposes Of This Article--
(a) Departmental Proceedings Shall Be Deemed To Have Been Instituted When The Charges Framed Against The Pensioner Are Issued To Him, Or, If The Officer Has Been Placed Under Suspension From An Earlier Date, On Such Date; And
(b) Judicial Proceedings Shall Be Deemed To Have Been Instituted:
(i) In The Case Of Criminal Proceedings, On The Date On Which A Complaint Is Made, Or A Charge-sheet Is Submitted, To A Criminal Court; And
(ii) In The Case Of Civil Proceedings, On The Date On Which The Plaint Is Presented Or, As The Case May Be, An Application Is Made, To A Civil Court."

The Governor Under This Rule Can Withhold Or Curtail The Pension And Direct Recovery Of The Pecuniary Loss Suffered By The Government Even After Retirement For The Reasons Mentioned In The Rule. The Rule Lays Down Not Only The Circumstances In Which The Right Can Be Exercised But It Further Details The Manner Of Institution Of Proceedings Against A Retired Employee, The Period During Which It Can Be Instituted And The Manner In Which The Enquiry Can Be Completed, Resulting In Withholding Or Curtailment Of Pension And Recovery For Pecuniary Loss Suffered By The Government. But It Does Not Provide For Withholding Gratuity Or Family Pension.
These Were Provided By Two Set Of Rules Framed By The State Government In The Year 1961. The Uttar Pradesh Retirement Benefits Rules, 1961 And Uttar Pradesh Liberalised Pension Rules 1961. Rule 3(f) Of The Uttar Pradesh Liberalised Pension Rules 1961 Was Framed In Exercise Of Powers Conferred By Proviso To Article 309 Of The Constitution By The Governor Of Uttar Pradesh Which Came Into Force On 1.4.1961. Rule 3(f) Defines 'Officer' As A Government Servant, Whether Belonging To Superior Or Inferior Service, Who Holds A Lien On A Permanent Pensionable Post Under The Government Or Would Have Held A Lien On Such A Post Had His Lien Not Been Suspended. The Word 'Qualifying Service' Under Rule 3(h) Means Service Which Qualifies For Pension In Accordance With The Provisions Of The Civil Service Regulations. Rule 2 Lays Down That These Rules Shall Apply To All Officers Under The Rule Making Control Of The Governor Who Become Eligible For Pension After The Promulgation Of These Rules And To All The Serving Officers Who Are Eligible For Pension. Rule 3 Provides That An Officer Shall, On Retirement, Be Paid Gratuity. Rule 5 Provides For Family Pension And Rule 6 Provides For Pension.
Rule 8 Provides That The Pension Actually Payable Under The Proviso To Rule 6 Shall Be Paid To The Officer Till The Date Of His Death. If The Officer Dies Before Retirement, No Pension Is Payable. Rule 9 Provides For Commutation Of Pension And Rule 10 Provides That Government Will Have The Right To Effect Recoveries From Gratuity Or Family Pension Sanctioned Under Parts I And II In The Same Circumstances As Recoveries Can Be Effected From An Ordinary Pension Under Regulation 351-A Of The Civil Service Regulations. Relevant Rule 10 (1) Of The Aforesaid Rules Is Extracted As Under:-

"10. (1) Government Will Have The Right To Effect Recoveries From A Gratuity Or Family Pension Sanctioned Under Parts I And II In The Same Circumstances As Recoveries Can Be Effected From An Ordinary Pension Under Article 351-A Of The Civil Service Regulations."

The Other Set Of Rules Is Known As The Uttar Pradesh Retirement Benefits Rules, 1961 Which Has Been Framed Under Proviso To Article 309 Of The Constitution Of India By The Governor And Has Come Into Force With Effect From 1.4.1961. These Rules Apply To All Officers Under The Rule Making Power Of The Governor Other Than Those Who Retired Before The Date Of The Coming Into Force Of These Rules. Rule 3(6) Defines The Word 'officer' Which Means A Government Servant (whether Belonging To Superior Or Inferior Service) Who Holds A Lien On A Permanent Pensionable Post Under The Government Or Would Have Held A Lien On Such A Post Had His Lien Not Been Suspended. Rule 3(8) Of The Aforesaid Rules Defines The Word 'qualifying Service' Which Means Service Which Qualifies For Pension In Accordance With The Provisions Of Regulation 368 Of The Civil Service Regulations. Rule 4 Provides The Payment Of Pension. Rule 5 Provides For Death-cum-retirement Gratuity. Rule 7 Provides For Family Pension And Rule 8 Provides For Commutation Of Pension. Rule 9 Provides For Recovery. The Relevant Rule 9(1) Is Extracted Below:-

"9. (1) Government Will Have The Right To Effect Recoveries From A Gratuity Or Family Pension Sanctioned Under Parts II And III In The Same Circumstances As Recoveries Can Be Effected From An Ordinary Pension Under Article 351-A Of The Civil Service Regulations."

From A Combined Reading Of Regulation 351-A Of The Civil Service Regulations With Two Set Of Rules, Namely The Uttar Pradesh Liberalised Pension Rules 1961 And Uttar Pradesh Retirement Benefits Rules, 1961 It Is Clear That The Pension, Gratuity And Family Pension Of A Government Servant Can Be Withheld Or Curtailed Permanently Or For A Specified Period And Pecuniary Loss Caused To The Government Can Be Recovered Even After Retirement. Further Such Action Can Be Taken For Pension Under Regulation 351-A Of The Civil Service Regulations Whereas For Gratuity And Family Pension It Can Be Proceeded With Under The U.P. Rules. Another Significant Feature Is That The Substantive And Procedural Law For Taking Action Against The Employee Is Provided By Regulation 351-A Of The Civil Service Regulations. The U.P. Rules On The Other Hand, Instead Of Providing Any Procedure For Taking Action For Recovery From Gratuity And Family Pension Adopted The 'same Circumstances' As Mentioned In Regulation 351-A Of The Civil Service Regulations. The Question Is What Is The Effect In Law Of It. Two Questions Need Consideration. One, Whether It Resulted In Adopting Both, The Substantive And Procedural Law As Provided In Regulation 351-A Of The Civil Service Regulations And Second, Whether The Rules Can Be Stretched To Mean That Gratuity Can Be Withheld Or Stopped While Exercising Powers Under Regulation 351-A Of The Civil Service Regulations. As Mentioned Earlier The Action For Recovery From Gratuity Can Be Taken, Only, Under The U.P. Rules. By Adopting The 'same Circumstances' As Mentioned In Regulation 351-A Of The Civil Service Regulations, It Shall Be Understood That Gratuity Can Be Stopped Or Withheld For Grave Misconduct Or Recovery Can Be Made For Misconduct And Negligence. But The Rule Stops Here. It Is Silent About The Procedure For Determining Grave Misconduct Or Misconduct Etc. It May Result In Rendering The Rule Unworkable. The Intent Of The Rule Making Authority Being Clear, The Rule In Our Opinion Should Be Read Harmoniously To Avoid It Becoming Redundant By Construing It To Read In The Circumstances And The Manner Provided In Regulation 351-A Of The Civil Service Regulations. But By No Principle Of Construction Or Rule Of Interpretation The Rule Can Be Read As Empowering The Government To Withhold Gratuity Or Effect Recovery From It While Proceeding Under Regulation 351-A Of The Civil Service Regulations For Withholding Or Curtailing Pension. Consequently, If The Gratuity Was To Be Forfeited Or Withheld, It Was Necessary For The Respondents To Issue Notice For It In The Enquiry And Proceed In Accordance With Law. From The Sanction Granted By The Governor It Is Clear That It Was For Withholding Or Curtailing Pension Under Regulation 351-A Of The Civil Service Regulations, And The Sanction Was Not For Gratuity. Therefore, The Order Of The State Government Directing Stopping Of Gratuity Cannot Be Upheld.
The Learned Standing Counsel Relying On The Division Bench Decision Of This Court In Krishna Kumar V State Of U.P. And Others, 1998 (4) AWC 595 Vehemently Urged That Under Regulation 351-A Of The Civil Service Regulations, Recovery Can Be Made, For The Loss Suffered By The Government, From The Gratuity Which Was Payable To The Employee. We Have Carefully Gone Through This Decision. The Division Bench Held That For The Loss Suffered By The Government Gratuity Could Be Forfeited. The Bench Relied On Section 4(6)(1) Of The Payment Of Gratuity Act, 1972. We Respectfully Find That The Division Bench Has Not Considered Section 2(e) Of The Payment Of Gratuity Act, 1972 Which In Clear Terms Lays Down That The Payment Of Gratuity Act, 1972 Would Not Apply To A Person Who Holds A Post Under The Central Government Or A State Government And Is Governed By Any Other Act Or By Any Rules Providing For Payment Of Gratuity. Therefore, The Payment Of Gratuity Act, 1972 Was Not Applicable As The Employee Before The Division Bench Was A Government Servant, Working As Deputy Excise Commissioner. The Decision, In Our Opinion, Is Of No Help To The Respondents. We May Also Mention That The Apex Court In Ahmedabad Private Primary Teacher Association V. Administrative Officer, AIR 2004 SC 1426 Held That In View Of The Definition Of Employee In Section 2(e) Of The Payment Of Gratuity Act, 1972 Gratuity Could Be Paid To The Skilled, Semi-skilled, Unskilled, Manual, Supervisory, Technical, Clerical, Managerial And Administrative Employees Covered By Labour Enactments.
However, We Proceed To Examine, Whether Gratuity Can Be Deemed To Be Included In Pension. Gratuity Is A Statutory Right. When A Government Servant Is Sought To Be Deprived Of His Gratuity, Such Deprivation Must Be In Accordance With Law. It Is Paid To The Employee To Tide Over Post Retirement Hardship And Inconveniences. If The Employee Has Committed Misconduct Or Caused Loss To The Government Then It Cannot Be Said That The Employee Has Rendered Such A Service So As To Make Him Entitled To Receive The Favour Of The Grant Of Gratuity For The Services Rendered By Him To The Government.
Pensionary Benefits, On The Other Hand, Are The Benefits Which Arise Out Of The Service Condition That After Retirement One Should Be Given Some Benefits So That He Can Maintain Himself. But Pension Is Not A Charity Or Bounty Nor It Is Gratuitous Payment Solely Dependent On The Whim Or Sweet Will Of The Employer. It Is Earned For Rendering Long Service And Is Described As Deferred Portion Of Compensation For Past Services.
At This Stage It Is Necessary To Extract Article 366(17) Of The Constitution Of India Which Reads As Under:-

"Article 366 Pension - (17) "Pension" Means A Pension, Whether Contributory Or Not, Of Any Kind Whatsoever Payable To Or In Respect Of Any Person, And Includes Retired Pay So Payable, A Gratuity So Payable And Any Sum Or Sums So Payable By Way Of The Return, With Or Without Interest Thereon Or Any Other Addition Thereto, Of Subscriptions To A Provident Fund."

The Apex Court In Jarnail Singh V Secretary, Ministry Of Home Affairs And Others, (1993) 1 SCC 47 Has Held That Pension Includes Gratuity. In Another Decision State Of U.P. V. U.P. University Colleges Pensioners' Association, JT 1994(2) SC 569 The Apex Court Considered And Explained Jarnail Singh's Case And Held That Pension And Gratuity Are Conceptually Different. It Is Necessary To Extract Paragraphs 13, 14 And 15 Of The Aforesaid Decision Of The Apex Court Which Are As Under:
"13. Before We Express Our Views On The Aforesaid Matter, We Would Deal With The Submission Of Shri Jain That Gratuity Has To Be Taken As A Part Of Pension, To Support Which Contention Our Attention Has Been Invited To This Court's Judgment In Jarnail Singh's Case (supra). Perusal Of That Judgment Shows That Gratuity Was Taken To Be A Part Of Pension Because Of The Definition Of "pension" As Given In Clause (o) Of Sub-rule (i) Of Rule 3 Of Central Civil Services (Pension) Rules, 1972. It Is Because Of This Definition That The Case Of D.V. Kapoor V. Union Of India, 1990 (4) SCC 314, In Which It Had Been Held That Gratuity Was Not A Part Of Pension, Was Not Followed, As The Bench Which Decided That Case Had Not Been Referred To The Aforesaid Definition Of Pension. Similar Observation Was Made In Jarnail Singh's Case Regarding F.R. Jaisuratnam V. Union Of India, 1990 (Supp.) SCC 604 Wherein Also Gratuity Was Not Regarded As Part Of Pension Without Noting The Above Noted Definition.
14. To Buttress His Aforesaid Submission, Shri Jain Also Refers To Clause (17) Of Article 366 Of The Constitution Which Has Defined Pension To Include Gratuity. Merely Because What Has Been Stated In Clause (17) It Cannot Be Held That Gratuity Has To Be Taken Always And For All Purposes As Part Of Pension, Because This Definition Apparently Has Enlarged The Meaning Of The Word "pension" By Stating That This Would Include Gratuity. It Is Well Known That Legislature Very Often Wants To Give Enlarged Meaning To A Particular Word And This Is Done By Stating That The Defined Word Would Include Some Named Related Subjects Also.
15. We, Therefore, State That Either Because Of What Was Stated In Jarnail Singh's Case Or The Way 'pension' Has Been Defined In The Constitution, It Cannot Be Held That Pension And Gratuity Are Conceptually Same, As Stated In Paragraph 9 Of Jarnail Singh's Case To Which Our Attention Is Invited By Shri Jain. According To Us, This Court Took The View In Question In Jarnail Singh Because Of The Definition Of The Word 'pension' In The Concerned Rule, Otherwise, What Was Held In D.V. Kapoor And F.R. Jaisuratnam Cases Seem To Be Correct Legal Position."

Therefore, The Gratuity Being Conceptually Different Cannot Be Deemed To Be Included In Pension.
Regulation 41 Of The Civil Service Regulations Provides As Under:-
"41. Pension - Except When The Term "Pension" Is Used Contradistinction To Gratuity "Pension" Includes Gratuity."
The Expression 'contradistinction' Means Distinction By Contrast Or Opposite Qualities. To Distinguish One Thing From Other, By Contrasting. The Question Is Whether Pension Includes Gratuity. Pension Is Not A Bounty Of The State. It Is The Right Of A Government Servant. It Provides Economic Security After Superannuation By Assured Periodical Payments Till The Employee Is Alive. The Right To Gratuity Is A Statutory Right, It Is Paid Once After Superannuation By The Employer. For Depriving The Government Employee Of His Gratuity, Opportunity Has To Be Given, Before Forfeiting Or Withholding It As A Measure Of Punishment. Rule 10 Of The Uttar Pradesh Liberalised Pension Rules, 1961 And Rule 9 Of The Uttar Pradesh Retirement Benefits Rules, 1961 Lay Down The Law For Effecting Recovery From The Government Employee From His Gratuity. It Can Be Recovered In The Same Circumstances As Recovery Is Effected From Ordinary Pension Under Regulation 351-A Of The Civil Service Regulations. Under These Rules The Expression Gratuity Has Been Used In Contradistinction To Pension. Therefore, Regulation 41 Of The Civil Service Regulations Is Of No Help To The Respondents. Had Gratuity Been Included In Pension Then Under Rule 10 Of The Uttar Pradesh Liberalised Pension Rules, 1961 Or Rule 9 Of The Uttar Pradesh Retirement Benefits Rules, 1961 There Was No Necessity Of Mentioning That Recovery Could Be Made From Gratuity And Family Pension. The Rule Making Authority Was Conscious That Under Regulation 351-A Of The Civil Service Regulations Recovery Could Be Made From Pension Only, Therefore, Both The Rules Of 1961 Provided For Recovery From Gratuity And Family Pension. In The Circumstances We Are Of The Opinion That Gratuity Is Not Part Of Pension. Both Are Conceptually Different. In Other Words, Recovery From Gratuity And Family Pension For The Loss, Suffered By The Government Due To Negligence Or Misconduct Of The Employee Can Be Made By The Government Provided The Procedure As Laid Down In Regulation 351-A Of The Civil Service Regulations Is Followed With Regard To Limitation And Compliance Of Principles Of Natural Justice Etc. In The Instant Case No Notice Or Opportunity Had Been Given By The State Government Informing The Petitioner That As A Measure Of Punishment His Gratuity Is Liable To Be Withheld Or Forfeited. In Absence Of Any Notice Or Opportunity The Order Of The State Government Withholding The Gratuity Of The Petitioner Is Without Jurisdiction. The Petitioner Is Entitled To His Gratuity.
We Have Already Held That Gratuity Of A Retired Employee In The State Cannot Be Withheld Nor Can Recovery Be Made From It Treating It As Pension. The Learned Standing Counsel Vehemently Relied On The Decision Of The Apex Court In State Of U.P. And Others V. Harihar Bhole Nath JT 2006 (9) SC 567. We Have Gone Through It Carefully. This Decision Was Not Concerned With Stopping Of Gratuity. The Hon'ble Apex Court, No Doubt, Has Observed In Paragraph 11 That Gratuity And Pension Were Covered In Regulation 351-A Read With Regulation 470 Of The Civil Service Regulations, But In View Of What Has Been Stated Above Gratuity Of An Employee Could Be Stopped Only If The Proceedings For It Were Taken Under U.P. Pension Rules 1961. It Being A Special Provision For The Recovery Of Gratuity, The Gratuity Cannot Be Stopped By Deeming It To Be Included In Pension Under Regulation 351-A.
We May Further Mention That The State Government Had Issued Notice Under Regulation 351-A Of The Civil Service Regulations. We Have Already Extracted It Earlier. It Provides For Recovery From Pension. It Does Not Provide Recovery From Gratuity. The State Government Has Not Proceeded To Recover The Amount Under Rule 10 Of The U.P. Liberalised Pension Service Rules, 1961 Or Under Rule 9 Of The Uttar Pradesh Retirement Benefits Rules, 1961. Both The Rules Are Independent Of Regulation 351-A Of The Regulations. Under These Rules It Is Nowhere Provided That Pension Includes Gratuity. As Observed Earlier Pension Is Subject Matter Of Regulation 351-A, Whereas Gratuity Can Be Recovered Under The Aforesaid Rules. The State Government Has Not Chosen To Proceed With The Recovery Under The Rules But It Has Proceeded To Initiate Departmental Disciplinary Proceedings To Make Recovery Under Regulation 351-A. Therefore, Recovery, If Any, Could Be Made, Only From The Pension Of The Petitioner. It Could Not Be Made From The Gratuity. In Our Opinion, Gratuity Has Wrongly Been Withheld By The Respondents, Which Is Liable To Be Paid To The Petitioner Forthwith.
We Would Now Examine Whether The Order Withholding 5% Pension Can Be Upheld. We Have Already Extracted Regulation 351-A. It Provides For Withholding Or Withdrawing Pension Permanently Or For Specific Period If The Pensioner Is Found Guilty Of Grave Misconduct In Departmental Disciplinary Proceedings Or To Have Caused Pecuniary Loss To Government By Misconduct Or Negligence During His Service. The Use Of Two Expressions Grave Misconduct For Withholding Pension And Misconduct Or Negligence For Pecuniary Loss Brings Out Fully The Scope And Purpose Of The Regulations. Misconduct Literally Means Wrong Or Improper Conduct. It May Be Failure To Do What Is Required By Law To Be Done. In Other Words, Omission To Follow A Rule Without Any Intention May Amount To Misconduct. Therefore, Where There Is Pecuniary Loss Of The Government By Failure Or Omission To Follow Any Rule Or Law Deliberately Or Otherwise, It May Amount To Misconduct Or Negligence And It Can Be Recovered From The Pension. But Withholding Or Forfeiting Pension Permanently Or For A Specified Period, Can Only Be For Grave Misconduct. The Use Of The Word Grave Misconduct Makes It Abundantly Clear That It Is Not Every Omission Or Failure Which Can Attract This Provision. According To The Black's Law Dictionary The Word 'misconduct' Is Of Wide Import. But Once It Has Been Qualified With The Word Grave, Its Ambit Is Curtailed. It Intends To Convey That The Action Can Be Taken Only If The Omission Or Failure Is Not Ordinary But Something More. Mere Neglect Or Default May Not Be Covered By It. In Service Jurisprudence Grave Has Its Own Connotation. It Is Not A Mistake Or Mere Irregularity. Pension Is A Right Of An Employee. It Cannot Be Withheld Or Curtailed For Technical Omission.
We May Now Advert To The Charges Framed Against The Petitioner To Decide Whether The Petitioner Could Be Held Guilty Of Grave Misconduct On The Findings Recorded By The Enquiry Officer Accepted By The State Government And Whether It Warrants The Punishment Of Permanent Curtailment Of 5% Pension. Four Charges Were Framed Against The Petitioner. He Was Exonerated Of The First Charge By The Enquiry Officer.
The Second Charge Was That For Students Kit New Pencil, New Rubber And New Scale Were To Be Purchased And Distributed As Per The Letter Of Director Of Education, (Basic) U.P. And Chairman, U.P. Basic Shiksha Parishad, Allahabad Dated 9.3.1994. In The District There Were 2100 Centres And The Number Of Students Of Both The Years To Whom The Kits Were To Be Distributed Were 52,400. For Them 2,89,600 New Pencils, 1,57,200 New Rubbers And 1,04,800 New Scales Were To Be Purchased But The Petitioner Had Purchased 4,20,000 New Pencils, 3,15,000 New Rubbers And 10,500 New Scales Which Were More Than Norms Fixed By The G.O. Dated 9.3.1994. The Petitioner Was Charged For Excess Payment Of Rs.4,10,988/-. The Petitioner Submitted In His Reply That This Letter Dated 9.3.1994 Was Not Received In His Office. He Has Made Purchases As Per The Norms Fixed In The Letter Issued By The Directorate Dated January 1989. Since The Purchases Of Scales Was Less Than The Norms Fixed In 1994 No Action Was Taken For It. With Regard To Pencils And Rubbers The Enquiry Officer Found That The Letter Dated 9.3.1994 Was In The Knowledge Of The Petitioner, Therefore, He Was Guilty Of Making Excess Purchase Of 1,30,400 Pencils @ Rs.1.20/- Per Pencil Total Rs.1,56,480/- And 1,57,800 Rubbers @ Rs.1/- Per Rubber Total Rs.1,57,800/-. In The Supplemenary Counter Affidavit Filed On 25.5.2007 It Is Stated That From The Records Available In The Office It Was Clear That Out Of 4,20,000 Pencils Purchased By The Petitioner 4,00,000 Were Distributed To Students. The Distribution Of Remaining 20,000 Pencils Could Not Be Verified As Records Were Not Available. Similarly, Out Of 3,15,000 Rubbers 3,00,000 Were Found To Be Distributed To Students. The Distribution Of Remaining 15,000 Rubbers Could Not Be Verified As Records Were Not Available.
It Is Further Not Denied That No Opportunity Of Hearing Was Afforded By The Enquiry Officer. The Question Is Whether In The Circumstances This Charge Was Proved And Even Assuming It To Be So, Was It Sufficient To Warrant The Finding That The Petitioner Was Guilty Of Grave Misconduct Or Misconduct Or Negligence? Even Though The Findings Recorded By The Enquiry Officer That The Petitioner Had Knowledge Of The 1994 G.O., Cannot Be Gone Into By This Court In Writ Jurisdiction But There Is No Finding That The Purchases Made By The Petitioner Were Not In Accordance With The 1989 G.O. There Is No Finding That The Petitioner Was Guilty Of Embezzlement Or The Pencils And Rubbers Purchased By The Petitioner Were Misutilised By Him And Were Not Distributed To The Students.
In Absence Of Any Finding That Purchases Were Not Contrary To Earlier G.O. Of 1989 Coupled With Failure Of Opportunity To The Petitioner In The Enquiry It Could Not Be Said That The Petitioner Had Misutilised The Funds Or Was Guilty Of Embezzlement Or Grave Misconduct Within The Meaning Of Regulation 351-A Of The Civil Service Regulations.
The Third Charge Was That Payment Of Trade Tax (sales Tax) Could Have Been Avoided By Obtaining Form 3-D From The Trade Tax Department. The Explanation Of The Petitioner Was That Despite Letters And Even Personal Meeting With The Trade Tax Officer The Form Could Not Be Issued As They Were Not Available With The Trade Tax Department. It Was Alleged That The Correspondence In This Regard Was Available In The Office Of Zila Anuapcharik Shiksha Adhikari, Which May Be Verified. The Enquiry Officer Did Not Find That The Explanation Of The Petitioner That He Had Written Many Letters To The Trade Tax Officer And Also Personaly Contacted Him For Form No.3-D And The Trade Tax Officer Informed Him That The Form Was Not Available Was Incorrect. In The Supplementary Counter Affidavit It Is Alleged That The Petitioner Failed To Prove That Form No.3-D Was Not Available. The Allgation Has Not Been Made With Responsibility. The Varacity Of The Petitioner's Statement Was Not Verified Either By The Enquiry Officer Or By The Officer Who Has Filed The Supplemenary Counter Affidavit On 25.5.2007. The Enquiry Officer Did Not Care To Verify By Summoning The Records, He Did Not Issue Notice To The Petitioner To Participate In The Enquiry. Even The Officer Who Filed The Supplementary Counter Affidavit Did Not Say That There Was No Such Letter On The Record. If The Explanation Of The Petitioner Was Correct, No Blame Could Be Placed On Him. Further The Money Passed From One Pocket Of The Governmen To Another. Thus, There Was No Loss To The Government. In Any Case It Could Not, By Any Stretch Of Imagination, Be Termed As Grave Misconduct Within The Meaning Of The Words 'grave Misconduct' Used In The Regulations.
The Fourth Charge Against The Petitioner Was That He Had Not Purchased Copies From M/s. Sudhir & Company, Kanpur On Rate Contract. The Petitioner Submitted In His Reply That He Compared The Copy Supplied By M/s. Sudhir & Company With The Specimen Copy And Found That The Copies Supplied Were Of Very Bad Quality And It Could Not Be Used By The Students, Therefore, He Invited Quotations And Purchased Good Copies On The Same Rate In The Interest Of Students. On This Charge The Enquiry Officer Has Held That The Petitioner Was Not Guilty Of Causing Any Loss To The Government, But He Held That The Petitioner Having Failed To Puchase From The Dealer Approved By The Department Was Guilty Of Violating Departmental Rules. It Has Been Supported In The Supplementary Counter Affidavit Filed On 25.5.2007. It States That The Petitioner Should Have Purchased From The Dealer Who Was Approved By The Department. There Is No Doubt That, Normally, The Purchases Should Have Been Made From The Approved Dealer. But The Circumstances Do Establish That What Was Done By The Petitioner Was In The Interest Of The Students. It Was Neither To Benefit Himself Nor Cause Any Loss To The Government. That Is Why The Enquiry Officer Found That It Was A Technical Violation. It Could Not Be Held Grave Misconduct Justifying Curtailing The Pension.
We May Make It Clear That We Have Discussed The Findings Recorded By The Enquiry Officer And The Disciplinary Authority Not With A View To Examine Their Correctness Or Otherwise But To Decide Whether These Findings Individually Or Collectively Can Result In The Finding That The Petitioner Was Guilty Of Grave Misconduct.
We May Now Examine Whether The Enquiry Officer Has Complied With The Principles Of Natural Justice While Conducting The Enquiry. In Paragraphs 12 And 13 Of The Writ Petition The Petitioner Has Specifically Stated That No Enquiry Proceedings Was Ever Conducted By The Enquiry Officer Nor Any Date For Enquiry Was Fixed And No Opportunity Was Given To Lead Oral Or Documentary Evidence. It Is Necessary To Extract Paragraphs 12 And 13 Of The Writ Petition Which Is As Under:-
"12.That After The Petitioner Submitted His Reply, No Further Proceedings For Enquiry Was Ever Conducted By The Enquiry Officer. It Is Relevant To Mention Here That Neither Enquiry Officer Fixed Any Date Nor Petitioner Was Ever Informed Of Any Date Being Fixed In The Enquiry Proceedings. The Petitioner Was Never Informed To Appear Before The Enquiry Officer Nor He Was Ever Afforded Opportunity Of Any Kind To Lead Evidence Orally As Well As Documentary In His Support..
13. That As A Matter Of Fact The Enquiry Officer Never Conducted Any Enquiry Proceedings And Submitted His Report After More Than Two Years Of Issuance Of The Charge Sheet. It Is Once Again Submitted That The Said Report Is Only Based On The Charges Levelled Against The Petitioner And The Reply Submitted By Him Without Any Opportunity To The Petitioner To Lead The Evidence In Support Of His Case..."

In Reply To The Assertions Made In Paragraphs 12 And 13 Of The Writ Petition The Respondents Submitted The Reply In Paragraph 8 Of The Counter Affidavit Which Is Extracted Below:
"8. That The Contents Of Paragraphs No.12 To 16 Of The Petition Are Misleading Hence Denied. In Reply Thereof It Is Stated That The Petitioner Was Given Full Opportunity By Asking Him Whether He Would Like Personal Hearing In The Matter Or Would He Like To Adduce Evidence And Examination Of Witnesses Or Produce Witness In His Favour In The Charge Sheet Dated 22.6.1998 Itself But In The Written Reply Dated 28.7.1998 Annexure 2 To The Writ Petition, The Petitioner Has Nowhere Indicated His Desire To Cross Examine Any Witness Regarding Personal Hearing.
Accordingly, The Allegation Made By The Petitioner In Paragraph Under Reply That He Was Not Given Opportunity Is Manifestly Incorrect And Is Denied. It Is Further Stated That Upon Consideration Of The Reply Of The Petitioner, The Enquiry Officer Submitted His Report Exonerating The Petitioner From Charge No.1 While Charge No.2 And 3 Were Proved Against Him Whereas Charge No.4 Was Partly Proved Against The Petitioner. A Copy Of The Enquiry Report Has Already Been Filed As Annexure 3 To The Writ Petition."

It Had Been Stated By The Respondents That The Petitioner Was Asked Whether He Would Like To Have Personal Hearing In The Matter Or Would Like To Adduce Evidence And Cross-examination Of Witnesses Or Produce Witness, But The Petitioner Did Not Express Any Desire To Cross-examine Any Witness Or To Have Personal Hearing. However, In Paragraph 8 Of The Counter Affidavit It Is Admitted That The Enquiry Officer After Considering The Reply Of The Petitioner Submitted His Report. The Allegation Of The Petitioner That The Enquiry Officer Did Not Fix Any Date, Place Or Time For Enquiry Or Intimated The Same To The Petitioner Is Not Denied In The Counter Affidavit. In The Supplementary Counter Affidavit Filed On 25.5.2007 It Is Admitted That No Date, Place And Time Was Fixed For Enquiry. But It Is Stated That The Petitioner Did Not Make Any Request In His Reply For Any Hearing Nor He Proposed To Examine Any Oral Evidence, Therefore, The Enquiry Was In Accordance With U.P. Government Servant (Discipline & Appeal) Rules, 1999.
The Stand Taken In The Supplementary Counter Affidavit Shows Complete Misapprehension About Rule 7 Of The U.P. Government Servant (Discipline & Appeal) Rules, 1999. It Provides The Procedure For Major Punishment. It Lays Down In Detail The Steps To Be Taken By The Enquiry Officer In Conducting The Enquiry. Two Of Its Sub-rule (iv) And (vii) Need Discussion. Sub-rule (iv) Is Extracted Below :

"The Charged Government Servant Shall Be Required To Put In A Written Statement Of His Defence In Person On A Specified Date Which Shall Not Be Less Than 15 Days From The Date Of Issue Of Charge-sheet And To State Whether He Desires To Cross-examine Any Witness Mentioned In The Charge-sheet And Whether He Desires To Give Or Produce Evidence In His Defence. He Shall Also Be Informed That In Case He Does Not Appear Or File The Written Statement On The Specified Date, It Will Be Presumed That He Has None To Furnish And Inquiry Officer Shall Proceed To Complete The Inquiry Ex Parte."

The Sub-rule Is In Three Parts. First, The Duty Of The Enquiry Officer Requiring The Charged Officer To Appear In Person On A Specified Date And File His Written Statement, Second The Right Of The Employee To Cross-examine The Witness Mentioned In The Charge-sheet And Produce Evidence In His Defence And The Third The Power Of The Enquiry Officer To Proceed Ex Parte And Complete The Enquiry, If The Charged Officer Does Not Appear On The Specified Date Nor Files His Written Statement. The Expression, 'in Case He Does Not Appear Or File The Written Statement On The Specified Date' Makes The Appearance Optional. But It Does Not Absolve The Enquiry Officer From His Duty Of Fixing A Specified Date For Appearance And Filing Written Statement.
Sub-rule (vii) Of Rule 7 Provides The Procedure To Be Followed During Enquiry. It Is Reproduced Below :

"Where The Charged Government Servant Denies The Charges 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 Given Opportunity To Cross Examine Such Witness. After Recording The Aforesaid Evidence, The Inquiry Officer Shall Call And Record The Oral Evidence Which The Charged Government Servant Desires In His Written Statement To Be Produced In His Defence:
Provided That The Inquiry Officer May For Reasons To Be Recorded In Writing Refuse To Call A Witness."
Where The Charge Is Not Admitted, The Enquiry Officer Is Obliged To Call The Witnesses Mentioned In The Charge-sheet In Presence Of The Delinquent Employee Who Shall Be At Liberty To Cross Examine Witnesses And Produce His Evidence. The Rule Contains The Basic Principle Of Natural Justice. It Cannot Be Ignored By Taking The Stand That The Employee Having Failed To Make Request For Oral Hearing Or Opportunity To Produce Oral Evidence, The Enquiry Officer Could Conclude The Enquiry On The Reply Of The Employee. The Requirement Of Examining Of Witnesses In Presence Of The Employee Makes The Rule Mandatory. The Enquiry Officer Is Duty Bound To Prove The Case Against The Employee By Taking Evidence In His Presence, Otherwise It Becomes An Enquiry Which Is Contrary To The Principles Of Natural Justice.
Therefore, Even If In The Charge Sheet The Enquiry Officer Had Mentioned Or Intimated To The Employee That If He Wants To Lead Any Oral Or Documentary Evidence Or To Examine Any Witness He May Inform Him But If The Enquiry Officer Had Not Fixed Any Date, Time And Place For Enquiry Then It Would Not Be Compliance Of Principles Of Natural Justice.
In Short, From Rule 7 Of U.P. Government Servants (Discipline & Appeal) Rules, 1999, It Is Clear That Where The Charges Levelled In The Charge-sheet Is Either Not Admitted Or Denied By The Employee It Is The Statutory Duty Of The Enquiry Officer To Hold The Enquiry For Proving The Charges By Documentary And Oral Evidence In Presence Of The Employee And By Asking Him To Cross-examine The Witnesses, If He So Desires, And Adduce His Own Oral And Documentary Evidence In His Defence. The Enquiry Officer, Without Holding Such An Enquiry Could Not Straightway Submit Any Report, Only After Considering The Reply Of The Employee, Holding The Employee Guilty Of The Charges Mentioned In The Charge-sheet. If A Charge Sheet Has Not Been Replied Or The Employee Does Not Appear In The Enquiry Proceedings, Despite Service Of Notice Of The Date Fixed For Enquiry, The Enquiry Officer Can Proceed To Hold Ex-parte Enquiry In The Absence Of Employee On The Basis Of Oral And Documentary Evidence Mentioned In The Charge Sheet But Even That Could Be Done, Only, After Fixing Date, Time And Place For Enquiry. The Only Exception Is Where The Employee Appears Before The Enquiry Officer And Admits The Charges Levelled Against Him. Similar View Has Been Expressed By This Court In Shiv Shanker Saxena V State Of U.P. And Others, 2006 (2) ESC (All) 1294, Gopal Chandra Sinha V State Of U.P. And Others, 2005(4) ESC (All) 2899, Managing Director U.P. State Warehousing Corporation And Others V. Radhey Shyam, (2004) 3 UPLBEC 2864, Subhash Chandra Sharma V. Managing Director And Others (2000) 1 UPLBEC 541. The Apex Court Had Dismissed The SLP On 16.8.2000 In Subhash Chandra Sharma's Case.
In This Case A Perusal Of The Charge Sheet Shows That The Enquiry Officer At The Bottom Of Every Charge Mentioned That The Letter Of The Officer Concerned And The List Of Article Is Attached. There Was No Mention Of Any Evidence In Support Of The Charge. The Petitioner Submitted His Reply Denying The Charges. Thereafter, The Enquiry Officer Did Not Fix Any Date, Time And Place For Holding The Enquiry. The Enquiry Officer Was Under A Statutory Duty To Intimate The Petitioner Of The Date, Time And Place Of The Enquiry. This Was Not Done. The Enquiry Officer After Considering The Explanation Of The Petitioner Straightway Submitted The Enquiry Report To The Government. The Enquiry Proceedings Were, Thus, Vitiated. The Enquiry Was Contrary To U.P. Government Servants (Discipline & Appeal) Rules, 1999. We, Therefore, Hold That The Enquiry Proceedings As Well As The Enquiry Report Were In Violation Of The Principles Of Natural Justice.
We May Mention That It Was Argued That Proceedings Were Barred Under Sub-para (ii) Of The Proviso To Regulation 351-A, But In Absence Of Any Material To Show The Incident For Which Enquiry Was Initiated Occurred Four Years Prior To Grant Of Sanction By The Governor, The Argument Of Learned Counsel For The Petitioner That The Proceedings Were Barred Cannot Be Accepted.
It Was Further Argued That The Proceedings Having Been Initiated After The Sanction Of The Governor On 22.6.1998 It Should Have Been Completed Within Three Months From The Date The Sanction Order Was Received. It Was Urged That The Time Limit Has Been Fixed By The Rule U. P. Pension Cases (Submission, Disposal And Avoidance Of Delay) Rules, 1995, Framed By The Governor In Exercise Of Powers Under Proviso To Article 309 Of The Constitution Of India. It Was Notified On 2.11.1995 And It Came Into Force At Once. We Do Not Propose To Decide This Question In This Petition.
We Have Held That The Order Withholding Gratuity And Curtailing Pension Permanently Is Contrary To Rules. It Has Further Been Held That The Enquiry Proceedings Were In Violation Of U.P. Government Servant (Discipline & Appeal) Rules, 1999, And Contrary To The Principles Of Natural Justice. In Such Circumstances The Question Arises Whether A Fresh Enquiry Is Desirable. The Apex Court In M.V. Bijlani V. Union Of India And Others JT 2006 (4) SC 469 While Setting Aside The Orders Of The Disciplinary Authority Etc., As There Was No Charge That The Amount Was Misappropriated By The Charged Employee Did Not Direct Fresh Enquiry As The Employee Had Suffered Enough Due To Delay In Proceedings. In This Case The Incident Is Of 1994. The Petitioner Had Retired In The Year 1996. The Disciplinary Proceedings Were Initiated Against The Petitioner In 1998. The State Government Passed Order On 3.5.2002. The Petitioner Is More Than 70 Years Of Age. Charge No.1 Has Not Been Found To Be Proved. In View Of The Supplementary Counter Affidavit Charge No.2 Stood Diluted. Most Of The Pencils And Rubbers Purchased Were Distributed. It Did Not Appear To Be A Case Of Misappropriation Causing Loss Of Government Funds. The Findings On Charge No.3 And 4 At The Most, Amounts To A Technical Violation. In The Circumstances It Would Not Be Expedient In The Interest Of Justice To Direct A Fresh Enquiry.
In The Result This Writ Petition Succeeds And Is Allowed And The Order Of The State Government Dated 3.5.2002, Annexure-6 To The Writ Petition Is Quashed. A Writ Of Mandamus Is Issued Directing The Respondents To Release The Gratuity And Pension Along With The Total Amount Of Pension Already Deducted By The Respondents Within A Period Of Three Months. In Case The Aforesaid Amount Is Not Paid Within Time As Directed Above The Petitioner Shall Be Entitled For Interest At The Rate Of 9% Per Annum From The Date Gratuity And Pension Became Due To The Petitioner.
Parties Shall Bear Their Own Costs.

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