PRASAD SINGH, J. - (1.) A Division Bench of this Court has referred the controversy to Larger Bench, vide order dated 7.1.2010, to reconsider the ratio of the judgment of another Division Bench i.e., the case of Lakhan Lal Ahirwar. Vs. State of U.P. and others, reported in 2007 (25) LCD 1148, being not agree to it and framed following questions:- "1. Whether the time schedule given in Item No.17 of the Schedule of the U.P. Pension Cases (Submission, Disposal and Avoidance of Delay) Rules, 1995 is mandatory in nature and that if the enquiry is delayed beyond six months the entire proceedings will become inoperative? 2. Whether the judgment in Lakhan Lal Ahirwar vs. State of U.P. and others 2007 (25) LCD 1148 holding that item no.17 of the Schedule of the U.P. Pension Cases (Submission, Disposal and Avoidance of Delay) Rules, 1995 is mandatory in nature, is correct and lays down good law?" Hon'ble the Chief Justice has constituted the present Larger Bench in terms of reference.
(2.) THE petitioner was serving as Principal in the Government Polytechnic of City and District Mirzapur. During the course of employment, the petitioner along with one Sri K.L. Kushwaha, endorsed a cheque of scholarship and withdrew the cash of Rs.2,84,843.33P without making necessary entries in the Government records. When the matter came to light, the petitioner and Sri K.L. Kushwaha deposited the amount of Rs.2,84,843.33P., on 25.1.2006. However, disciplinary proceeding was initiated against the petitioner on 11.1.2007 under the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (in short 1999 Rules) with regard to alleged irregularities committed by him in distribution of scholarship. A chargesheet was served on 30.1.2007 with regard to temporary embezzlement. During pendency of departmental proceeding, the petitioner attained age of superannuation on 30.6.2007. A Government order dated 5.5.2008 was issued for continuing of the disciplinary proceeding under Article 351A of the Civil Service Regulations ( in short CSR), against the petitioner as well as Sri K.L. Kushwaha keeping in view the fact that they have retired on 30.6.2007. On 7.7.2008, Office Memo dated 30.5.2008 was issued by the State Government along with a copy of inquiry report requiring the petitioner to submit response. In consequence thereof, the petitioner submitted his reply on 21.7.2008. However, no final order was passed by the Government but the post retiral dues were withheld. Feeling aggrieved, the petitioner filed Writ Petition No.1173 (S/B) of 2009, which was decided finally by judgment and order dated 19.8.2009 directing the Principal Secretary, Department of Vocational and Technical Education to decide the representation dated 24.5.2009. After due hearing, the representation submitted by the petitioner was rejected by the order dated 21.12.2009 with the observation that the petitioner had received entire amount of leave encashment, group insurance, 90% of GPF amount and has been paid provisional pension from July, 2007 to November, 2009. However, gratuity was not paid on account of pendency of departmental proceeding.
(3.) THE petitioner relied upon the Rules framed under Article 309 of the Constitution namely, U.P. Pension Cases (Submission, Disposal and Avoidance of Delay) Rules, 1995 (in short 1995 Rules) and submitted that since the inquiry has not been completed within six months in terms of 1995 Rules, it shall be deemed to have been lapsed. It has further been pleaded by the petitioner that 1995 Rules shall override the general departmental rules in view of the law settled by a Division Bench of this Court in the case of Lakhan Lal Ahirwar (supra). The Division Bench being not in agreement with the ratio of the judgment of the case of Lakhan Lal Ahirwar (supra), referred the controversy to the Larger Bench after framing aforementioned two questions.;