V. M. Sahai, J. - (1.) THE petitioner was working as Chief Engineer in the Irrigation Department. He retired on 31.7.1998. THE Chief Engineer (Eastern Ganga) Department of Irrigation, Moradabad wrote a letter on 3.10.1998 to the Chief Accounts Officer (Pension Section) in the office of Engineer-in-Chief, Department of Irrigation, U. P., Lucknow for payment of petitioner's post retiral benefits. It was mentioned in this letter that the post retiral benefits were (a) Monthly Pension of Rs. 8,194, (b) Gratuity Rs. 3,14,177 and (c) Commutation Rs. 4,11,455. On 31.10.1998 provisional pension of Rs. 8,194 per month was sanctioned, but post-retiral benefits of the petitioner were not released. THErefore, the petitioner made a representation for payment of gratuity, insurance etc. and requested for issuance of no objection certificate. Even he met personally the Engineer-in-Chief (Western Canals), Department of Irrigation, Lucknow on 24.8.1999 and requested for payment of his gratuity and other post retiral benefits. THE Engineer-in-Chief directed the petitioner to fill the bond for payment of provisional gratuity. THE petitioner filled the bond. THE Engineer-in-Chief (Western Canals) granted permission on 18.12.1999 for payment of provisional gratuity amounting to Rs. 2,25,000. THE petitioner received the provisional gratuity amount in December, 1999 after about 17 months of his retirement. In the bond which the petitioner had filled it was provided that if any loss of amount was pointed out by the Government against the petitioner up to two years from the date of his retirement, then the same could be recovered from him as arrears of land revenue. No recovery order was passed against the petitioner by the respondents till 31.7.2000. On 21.6.2001 the Finance Controller in the office of Engineer-in-Chief sanctioned the post retiral benefits to the petitioner (a) Monthly pension Rs. 8,200, (b) Gratuity Rs. 3,39,191 and (c) Commutation Rs. 4,11,706. It was also mentioned in the footnote that according to the Government order dated 28.11.2000 Rs. 44,173 was being withheld.
(2.) BY means of this writ petition the petitioner has challenged the recovery notice dated 19.10.2002 issued by the respondents and has prayed that gratuity amount withheld by the respondents be released along with 18% per annum interest and the same interest be paid to the petitioner for delayed payment of gratuity. In the counter-affidavit filed by the respondents it has been stated that payment of Rs. 2,25,000 towards provisional gratuity was made to the petitioner with a condition that if any amount is found due from the petitioner then it would be adjusted from the amount of gratuity. It has been stated in paragraphs 13 and 20 that recovery had been initiated against the petitioner after vigilance and departmental enquiry. The petitioner had knowledge about it which is clear from the letter written by him on 22.3.1997 and 27.10.1997. The recovery had been initiated against the petitioner by the respondents after enquiry. In the vigilance enquiry report dated 26.2.1993 it was found that the petitioner is liable to reimburse the Government for a sum of Rs. 48,937.14p. Therefore, the notice had been issued to the petitioner for recovering this amount on 19.10.2002. In the supplementary counter-affidavit a copy of the vigilance enquiry report dated 26.2.1993 had been filed along with letters of Government dated 28.10.1999, 28.11.2000, 11.12.2001 and 5.12.2001. It had been stated that after fixing of liability of the petitioner proportionately an amount of Rs. 48,937.14p. is to be recovered from the petitioner and the remaining amount mentioned in the vigilance enquiry report would be recovered from other employees. In the rejoinder-affidavit it has been stated that by Government notification No. Sa-3-424/10-933-89 dated 12.2.1996 Regulation 470 of the Civil Services Regulations have been repealed and by Government order No. 1176/96-27-c-10-73/96 dated 4.4.1996 it had been clarified that no recovery of Government loss would be made from a retired person from his gratuity. In compliance of this Government order Engineer-in-Chief, Department of Irrigation, U. P., Lucknow had issued a letter on 27.6.1996 that departmental enquiry against an employee must be concluded one year before his superannuation and another letter had been issued by him on 4.4.1996 for conducting the proceedings under Regulation 351A of the Civil Services Regulations within time. It had further been stated that from the Government order dated 28.11.2000 it is clear that no departmental or administrative enquiry was pending against the petitioner. The petitioner by his letter dated 22.3.1997 and 27.10.1997 had written to the respondents that the petitioner's explanation in pursuance of the letter dated 19.2.1997 had been sought. It was requested by the petitioner that if any minor or major penalty is to be imposed then charge-sheet be issued. But no charge-sheet was issued to him. The alleged financial irregularity against the petitioner was of the year 1988-89. It was nearly ten years earlier from the date of retirement of the petitioner. And was sufficient for holding any disciplinary enquiry against him. Further the petitioner had filed a Government order issued on 28.7.1989 as Annexure-R.A. 3 to the rejoinder-affidavit. It provides that vigilance enquiry is a fact finding enquiry and if on the date of retirement such an enquiry is pending, the pension and gratuity of the employee could not be withheld.
(3.) WE have heard Sri K. B. Srivastava, learned counsel for the petitioner, Sri Sudhir Agarwal learned Additional Advocate General and Sri Peeyush Shukla learned standing counsel appearing for the respondents. Sri Peeyush Shukla has also produced the records before us. Learned counsel for the petitioner has urged that even if there was a vigilance enquiry report against the petitioner the respondents having not held any departmental or administrative enquiry against him for holding him guilty for causing any loss to the Government, the respondents could not withhold the post-retiral benefits of the petitioner. He further urged that gratuity of the petitioner cannot be withheld even if any amount was due ?gainst him. He further urged that under Regulation 351A of the Civil Services Regulations the amount of gratuity could not be withheld. The respondents have committed illegality in withholding gratuity of the petitioner and if it is not paid after retirement, then interest is liable to be paid by the respondents on the amount of gratuity at the rate of 18% per annum.;