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Judgment
Learned Standing Counsel appears for respondent nos. 1 and 2. Shri V.P. Varshney appears for UP Public Service Commission-respondent no.3.
The petitioner retired on attaining the age of superannuation on 31.12.2010, under suspension, as Executive Engineer, Minor Irrigation Division, Mirzapur serving under the Minor Irrigation and Ground Water Department-II, Government of UP. A charge sheet was served upon him on 4.12.1999 in pursuance to which the enquiry was pending when he retired. It is alleged that he received suspension allowance only for ten months and that for subsequent period his suspension allowance was not paid.
By the impugned order dated 5.12.2011 the Principal Secretary, Minor Irrigation, Government of UP, has, after considering the enquiry report, and seeking approval of the UP Public Service Commission, passed an order by which two punishments have been imposed on the petitioner namely; (1) the entire amount of gratuity and leave encashment has been withheld and (2) the entire amount of pension has been deducted towards the loss caused to the State Government.
Shri Ashok Khare, Learned Counsel appearing for the petitioner submits that the entire enquiry is vitiated on the vagueness of the charges and other infirmities, which have violated principles of natural justice. The departmental enquiry also vitiated on account of non-payment of suspension allowance for more than seven years, and that the statutory Discipline and Appeal Rules do not provide for the punishments, which have been awarded to the petitioner. He submits that the order has not been passed after the petitioner retired after seeking approval of the Governor of the State. The Service Rules do not provide for deducting the entire pension. He submits that the gratuity and the leave encachment have been withheld without providing for any further action and without forfeiting the amounts and that the entire pension could not be withheld leaving the petitioner on penury.
Learned Standing Counsel will file counter affidavit within three weeks.
Shri V.P. Varshney appearing for the Commission will also produce the original record of the approval granted by the Commission to the punishment.
List on 16.2.2012.
As an interim measure, we provide that the petitioner will be continued to be paid provisional pension calculated on the basis of last pay drawn in accordance with the Rules beginning from the date of his retirement.