Allahabad High Court
Mathura Prasad Mishra vs State Of U.P.Thru Prin.Secy.Publci ... on 8 February, 2024
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:11813 Court No. - 18 Case :- WRIT - A No.- 2001795 of 2015 Petitioner :- Mathura Prasad Mishra Respondent :- State Of U.P.Thru Prin.Secy.Publci Works Deptt.Lko.And Ors. Counsel for Petitioner :- Mohit Kumar Singh,Ramesh Kumar Singh,Sameer Kalia,Shireesh Kumar,Srideep Chatterjee Counsel for Respondent :- C.S.C. Hon'ble Manish Kumar,J.
Heard.
Present petition has been preferred against the impugned order of recovery of Rs. 19,51,766/- from the retiral dues of the petitioner and quashing of the first appellate order dated and quashing of the second appellate order dated 29.09.2015 passed by the respondent no. 1.
Learned counsel for the petitioner has submitted that the first appellate order dated 16.05.2023 has wrongly been challenged in the present petition as the same has already been set aside by the U.P. Public Service Tribunal.
Learned counsel for the petitioner has submitted that the petitioner after attaining the age of superannuation has retired from the post of Junior Engineer on 31.10.2006. After retirement, the amount of Rs. 19,51,766/- was withheld from the pensionary benefit of the petitioner and the rest of the post retiral dues were given to the petitioner.
Learned Counsel for the petitioner has submitted that the charge-sheet was served upon the petitioner on 15.12.2006 i.e. after the retirement of the petitioner on 31.10.2006.
It is further submitted that prior to the issuance of charge-sheet, respondents had not taken approval from the Governor as required under Regulation 351(A) of Civil Service Regulation.
It is further submitted that punishment order had been passed by the Engineer-in-Chief(Design & Planning), Public Works Department, Lucknow on 23.05.2009, who is not competent to pass such order against the retired employee thus the said order was passed without jurisdiction as it could be passed by the Governor as per Regulation 351 (A) of Civil Service Regulation.
It is further submitted that Regulation 41 of Civil Service Regulation provides that pension includes gratuity.
On the other hand, learned Standing Counsel has submitted that approval was granted by the Governor by order dated 19.11.2007 hence, the petition is liable to be dismissed.
After hearing learned counsel for the parties and going through the record of the case, the position which emerges out in the present case is that the charge-sheet was issued to the petitioner on 15.12.2006 i.e. after two months from the date of retirement of the petitioner and the approval was taken from the Governor under Regulation 351 (A) of Civil Service Regulation on 19.11.2007 i.e. subsequent to the issuance of charge-sheet. The Regulation 351 (A) talks about prior approval of the Governor for initiating enquiry against the retired employee. A Division Bench of this Court in the case of Vishweshwar Pathak Vs. State of U.P. and others (2014) SCC OnLine All 16225 has held that post facto sanction could not be obtained from the Governor under Regulation 351(A) of the C.S.R. nor any sanction could cure the initial defect, namely, issuance of a charge-sheet which was invalid at the initial stage itself.
Since it is admitted in the counter affidavit as well as during the course of argument on behalf of the State that approval was taken after the issuance of charge-sheet, the present writ petition is liable to be allowed following the decision in the case of Vishweshwar Pathak (supra).
Writ petition is allowed.
The impugned orders dated 23.05.2009 and 29.9.2015 are hereby quashed.
Respondents are directed to ensure the payment of Rs. 19,51,766/- which has been withheld from the post retiral dues of the petitioner within a period of two months from the date of production of certified copy of this order.
der Date :- 8.2.2024 Ashish