# Pradeep Kumar Srivastava v. State of U.P. & Ors

- **Citation:** Service Single No. 25168 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** Service Single No. 25168 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-srivastava-v-state-of-u-p-ors-46238
- **Pages:** 8

## Headnote

Law
-
Rule
6
of
U.P.
Government Servant (Discipline & Appeal)
Rules, 1999 - appointing authority should
be
the
disciplinary
authority
-
only
disciplinary authority may impose penalty
As per Rule 6 the notices can be issued either
by the appointing authority or the head of the
department in case of minor punishments. In
present case, the appointing authority is the
State Government while the head of the
department would be the Engineer-in-Chief. The
notices were passed by neither of the parties.
However,
the
Executive
Engineer,
an
incompetent
authority
in
view
of
the
abovementioned Rule, has issued the notices.

(B) Years of Service - pensionery benefits
- service rendered by an employee on
substantive post on ad-hoc basis including
the years of service rendered later on
after regularization would be counted for
pensionery benefit

(C) Natural Justice - any order giving rise
to civil consequences may not be passed
without giving opportunity of hearing to
the parties

(D) Interest - can be awarded as a
compensation by the Courts where the
pensionery benefits have been utilized by
the department having no right to lien
after the retirement of an employee -
withhold the pension amount without any
cogent reason

The purpose of awarding interest is that the
interest would be the compensation which is
allowed in the law for the use of money
belonging to another or for delay in paying the
said money after it has become double. (para
33)
Writ Petition Allowed. .(E-10)

List of cases cited:

## Text

3-5 All. Pradeep Kumar Srivastava Vs. State of U.P. & Ors.
825
recruitment if they possess the requisite
qualification in terms of advertisement as
well as the statute. They may also be given
suitable age relaxation and some wightage
for their experience as may be decided by
the authority concerned.

It is further directed that till
regular selection is made, the State is at
liberty to continue the petitioners and other
similarly situated incumbents on their
respective posts on same terms on which
they were working.

It is also directed that the
petitioners and other similarly situated
incumbents be paid arrears of salary, if any,
for the period they had worked, and in
future be paid regularly.

62.

With
the
aforesaid
observations/directions,
all
the
abovementioned writ petitions are disposed of.
----------
(2020)03-05ILR A825
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2020

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 25168 of 2019

Pradeep Kumar Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Hemendra Pratap

Counsel for the Respondents:
C.S.C.

(A)
Service
Law
-
Rule
6
of
U.P.
Government Servant (Discipline & Appeal)
Rules, 1999 - appointing authority should
be
the
disciplinary
authority
-
only
disciplinary authority may impose penalty
As per Rule 6 the notices can be issued either
by the appointing authority or the head of the
department in case of minor punishments. In
present case, the appointing authority is the
State Government while the head of the
department would be the Engineer-in-Chief. The
notices were passed by neither of the parties.
However,
the
Executive
Engineer,
an
incompetent
authority
in
view
of
the
abovementioned Rule, has issued the notices.

(B) Years of Service - pensionery benefits
- service rendered by an employee on
substantive post on ad-hoc basis including
the years of service rendered later on
after regularization would be counted for
pensionery benefit

(C) Natural Justice - any order giving rise
to civil consequences may not be passed
without giving opportunity of hearing to
the parties

(D) Interest - can be awarded as a
compensation by the Courts where the
pensionery benefits have been utilized by
the department having no right to lien
after the retirement of an employee -
withhold the pension amount without any
cogent reason

The purpose of awarding interest is that the
interest would be the compensation which is
allowed in the law for the use of money
belonging to another or for delay in paying the
said money after it has become double. (para
33)
Writ Petition Allowed. .(E-10)

List of cases cited:

1. Krishna Kant Pandey Vs. State Public Services
Tribunal, U.P. Lucknow & ors. 2018 (36) LCD
109 (followed)

2. Amarkant Rai Vs. St. of Bihar & ors (2015) 8
SCC 265 (followed)

3. Union of India & ors. Vs. B V. Gopinath 2014
(1) LBESR 75 (SC) (followed)
826 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Abhishek Prabhakar Awasthi Vs. The New
India Assurance Company Limited & ors. 2014
(32) LCD 405 (followed)

5. S.K. Dua Vs. St. of Haryana (2008) 3 SCC 44
(followed)

6. Radhika Devi Vs. UOI 2002 (1) LBSER 949
(All) (followed)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Hemendra Pratap,
learned counsel for the petitioner and Dr.
Uday Veer Singh, learned Additional Chief
Standing Counsel for the State-respondents.

2. The order under challenge is the
Pension Payment Order (in short P.P.O.)
dated 07.03.2019 issued after retirement of
the petitioner on 31.12.2017 from the post
of Assistant Engineer (Civil) wherein the
pensionery benefits and gratuity have been
sanctioned at the reduced rate thereby
withholding a sum of Rs.6,93,270/-.
Further,
per
petitioner's
counsel
the
consequential benefits admissible after
retirement as per law has not been paid to
the petitioner, therefore, the petitioner
prayed that those benefits with interest be
paid.

3. The brief facts of the case are that
the petitioner was initially appointed on the
post
of
Junior
Engineer
(Civil)
on
07.12.1977 against the sanctioned post,
strictly in accordance with law. Thereafter,
he joined on such post on 27.12.1977.

4. The services of the petitioner were
regularized on such post as he was initially
appointed on ad hoc basis on 10.12.1990
relating back with effect from 22.03.1984.

5. The petitioner was promoted on the
post of Assistant Engineer (Civil) on
29.07.2015, thereafter, he was allowed the
second promotional pay-scale and A.C.P.
with grade pay of Rs.7600/-.

6. On 26.02.2016, the disciplinary
proceedings were instituted against the
petitioner.

7. Learned counsel for the petitioner
has drawn attention of this Court towards
Annexure Nos.6, 7, 8 & 9 of the writ
petition, which are the orders dated
09.08.2018, 29.08.2018, 13.09.2018 and
16.11.2018
respectively,
making
it
abundantly clear that after the conclusion
of the departmental inquiry the petitioner
was fully exonerated on the charge and
thereafter consequential orders were passed
that
no
disciplinary/
departmental
proceedings or any criminal proceedings
are
pending
against
the
petitioner.
However, before such orders having been
passed the petitioner superannuated on
31.12.2017 after completing the age of 60
years from the post of Assistant Engineer
(Civil).

8. It has also been noted that vide
order dated 07.07.2018 the pay of the
petitioner in the revised pay-scale was
fixed at Rs.1,12,400/- with effect from
01.01.2016 on 01.07.2017, as order to this
effect has been annexed as Annexure No.10
to the writ petition.

9. Annexure Nos.11 and 12 are the
orders dated 12.03.2018 and 28.07.2018 to
the effect that the petitioner was sanctioned
provisional pension, 40% of the commuted
value with 10% addition having been
deducted.
3-5 All. Pradeep Kumar Srivastava Vs. State of U.P. & Ors.
827

10.

The
Executive
Engineer
concerned has issued the office memo
dated 28.07.2018 (Annexure No.14 to the
writ petition) sanctioning the additional
provisional gratuity to the petitioner to the
tune of Rs.9=00 lacs and the impugned
P.P.O. dated 07.03.2019 has been issued to
this effect.

11. Learned counsel for the petitioner
has apprised the Court that the petitioner
while working on the post of Junior
Engineer (Civil) in the year 2015, one
misconceived
recovery
order
dated
28.05.2015 against him had been passed on
the basis of some miscellaneous advance.
However, the petitioner submitted reply to
the Executive Engineer and when no proper
order has been passed, he filed the claim
petition bearing Claim Petition No.1086 of
2015 before the State Public Service
Tribunal, which was decided vide judgment
and
order
dated
28.09.2015
thereby
quashing such impugned orders dated
28.05.2015
and
04.06.2015
providing
liberty to the Disciplinary Authority to
issue show cause notices to the petitioner
informing him the substance of imputations
on the basis of which the petitioner was
held liable for recovery within a period of
two months then the petitioner would
submit reply within a period of one month
and thereafter the inquiry was to be
concluded within the period of two months.
As per the Tribunal, the whole exercise was
to be concluded within a period of six
months from the date of a certified copy of
the order is served.

12. As per learned counsel for the
petitioner, the said inquiry in terms of
judgment and order dated 29.08.2015 has
not been initiated and the amount, so
recovered
from
the
petitioner
of
Rs.96,000/-, has not been refunded to the
petitioner.

13. As per learned counsel for the
petitioner, by means of impugned P.P.O.
dated 07.03.2019, the D.C.R. gratuity has
been sanctioned by counting the total
length of 27 years service of the petitioner
instead of 33 years which the petitioner
actually rendered withholding a sum of
Rs.6,93,270/- for no cogent reasons.

14. Therefore in view of the above,
the petitioner has prayed that the impugned
P.P.O. dated 07.03.2019 be quashed and the
opposite parties be directed to sanction and
pay the commutation of pension to the
petitioner on the basis of age 61 years, 40%
of pension to be commuted the same
having been deducted, out of provisional
pension sanctioned by the opposite party
No.5 vide order dated 12.03.2018 and
28.07.2018 (Annexure Nos.11 and 12 to the
writ petition).

15. Sri Hemendra Pratap, learned
counsel for the petitioner has submitted
also that even if for argument sake, it is
admitted that some notices have been
issued to the petitioner by the Executive
Engineer pursuant to the order being passed
by the Tribunal, even then such notices
may not be sustained in the eyes of law for
simple reason that the Executive Engineer
was not a Appointing Authority of the
petitioner as the Appointing Authority of
the petitioner was the State Government.
Therefore, such show cause notices were
without jurisdiction and being violative of
the Rule 6 of U.P. Government Servant
(Discipline & Appeal) Rules, 1999 (herein-after referred to as the "Rules, 1999").
Learned counsel for the petitioner has
referred Rule 6 of the Rules, 1999. For
828 INDIAN LAW REPORTS ALLAHABAD SERIES
brevity, such rule is being reproduced herein-below:-

"6. Disciplinary authority. The
appointing authority of a Government
servant shall be his disciplinary authority,
who, subject to the provisions of these
rules, may impose any of the penalties
specified in Rule 3 on him:

Provided that no person shall be
dismissed or removed by an authority
subordinate to that by which he was
actually appointed:

Provided further that the Head of
Department notified under the Uttar
Pradesh Class II Services (Imposition of
Minor Punishment) Rules, 1973, subject to
the provisions of these rules, shall be
empowered to impose minor penalties
mentioned in Rule 3 of these rules:"

16. Per contra, Dr. Uday Veer Singh,
learned Additional Chief Standing Counsel
for the State-respondents has submitted that
the
services
of
the
petitioner
were
regularizd only on 10.12.1990 and as per
the rules, particularly in view of Regulation
361 of Civil Service Regulations (in short
C.S.R.), the ad-hoc services cannot be
counted for the purposes of pensionery
benefits as qualifying services. Further the
P.P.O. dated 07.03.2019 has been prepared
in the light of aforesaid regulation and
other provision. As such while calculating
the service rendered by the petitioner for
the purpose of pensionery benefits, the
opposite parties have not committed any
illegality.
Regulation
361
of
C.S.R.
provides as under:-

"361. The service of an officer
does not qualify for pension unless it
conforms to the following three conditions-

(a) the service must be under
Government,

(b) the employment must be
substantive and permanent and

(c) the salary must be paid by
Government."

17. Dr. Singh has further submitted
that the second aspect involved in the
matter is the recovery orders being passed
by the Executive Engineer in pursuance
with the report of the Committee consisting
three officers. However, per Dr. Singh,
earlier also the Committee consisting three
Assistant Engineers was constituted which
submitted a report dated 22.02.2014. In
furtherance
thereto,
the
order
dated
27.05.2015
was
issued
following
consequential order dated 04.06.2015. The
aforesaid
orders
were
admittedly
challenged by the present petitioner before
the State Public Service Tribunal, U.P.,
Lucknow by way of filing claim petition
bearing Claim Petition No.1086 of 2015.
The claim petition was allowed by the
learned Tribunal quashing the aforesaid
orders. However, the opposite parties were
given liberty to proceed with the matter in
accordance with the direction given in the
order dated 28.09.2015 by the Tribunal.
The time schedule was also framed to
initiate and conclude the enquiry. The
enquiry was to be concluded within six
months from the date of communication of
the order of Tribunal by serving the
certified copy.

18. Dr. Singh has also submitted that
there is no dispute that the petitioner
assailed the recovery order before the
Tribunal and the Tribunal allowed the claim
petition of the petitioner granting six
months time to conclude the departmental
inquiry. As per Dr. Singh, in compliance of
the aforesaid order of the Tribunal dated
28.09.2015, the show cause notice was
3-5 All. Pradeep Kumar Srivastava Vs. State of U.P. & Ors.
829
issued to the petitioner on 27.11.2015,
which has not been denied by the
petitioner. When no response was received,
another notice dated 11.02.2016 was issued
to remind the show cause notice dated
27.11.2015. On 27.01.2017, another notice
was issued to the petitioner to submit reply.
As a last opportunity the letter was issued
on 15.09.2018 to the petitioner but he did
not turn up. So, per Dr. Singh, the
petitioner was given ample opportunity to
defend his case regarding recovery of total
amount of bitumen Rs.4,79,475/- and such
recovery was inclusive of the amount
embezzled/ misappropriated to the tune of
Rs.1,07,400/- towards MNREGA.

19. As per Dr. Singh, instead of
defending the aforesaid charge of recovery
the petitioner preferred letters to the
department to adjust/ deduct the amount
from the gratuity and clear the other
pensionery benefits. Therefore, a sum of
Rs.6,93,270/- has been adjusted from the
amount of gratuity of the petitioner and in
view of the above, no illegality can be
attributed to the impugned order.

20. Heard learned counsel for the
parties and perused the material available
on record.

21. During the course of arguments,
learned Additional Chief Standing Counsel
was asked that even if the petitioner had
shown his willingness to recover/ adjust the
amount from the amount of gratuity if the
same is recoverable, as to whether the
recoverable amount has been determined
by the Disciplinary Authority strictly in
accordance with law and as to whether any
formal order to that effect has been issued
providing the copy thereof to the petitioner
seeking explanation from him.

22. The aforesaid query of the Court
was based on the trite law to the effect that
if the recoverable amount has not been
determined by the Disciplinary Authority,
or if it is determined but the formal order to
that effect has not been provided to the
incumbent seeking explanation from him,
the amount may not be recovered/ adjusted
from the amount of gratuity of an
employee, as it would not only against the
principles of natural justice but would be
against the public policy. Further, if any
impugned order entails civil consequences,
such order may not be issued without
providing an opportunity of hearing to that
effect.

23.

Learned
Additional
Chief
Standing Counsel has tried to defend the
impugned action of the opposite parties by
submitting that since the petitioner had
already given his undertaking to recover/
adjust the recoverable amount, therefore,
no such formal order has been issued to the
petitioner seeking explanation to that effect.
So far as the point of factum of
determination of recoverable amount is
concerned,
learned
Additional
Chief
Standing Counsel has submitted that the
petitioner was aware about the amounts,
therefore,
the
determination
of
total
recoverable amount has not been made.

24. As per the learned Additional
Chief
Standing
Counsel,
a
sum
of
Rs.4,79,475/- was recoverable for loss of
bitumen;
sum
of
Rs.1,07,400/-
was
recoverable towards the loss of MNREGA
scheme and other amounts claimed from
the petitioner were related to the incident/
misshaping
committed
during
his
supervision when he was in service.
Therefore, the total amount recoverable
was Rs.6,93,270/-.
830 INDIAN LAW REPORTS ALLAHABAD SERIES

25. This Court is unable to
comprehend as to how the aforesaid
amount, which has been recovered from the
petitioner, may sustain in the eyes of law
when no exercise of determination of the
amount recoverable has been made and no
formal order to that effect could have been
issued, therefore, no question arises for
affording an opportunity of hearing in
consonance with the principles of natural
justice.

26. The arguments of learned
Additional Chief Standing Counsel that ad
hoc services of the petitioner cannot be
counted for the purpose of pensionery
benefits as qualifying service does not
sustain in the eyes of law inasmuch as it is
trite law that the services rendered by an
employee on substantive post on ad hoc
basis and later on the same are regularized
under the rules, such ad hoc period shall be
counted for the purpose of pensionery
benefits as the qualifying service.

27. The Division Bench of this Court
in re: Krishna Kant Pandey vs. State
Public Services Tribunal, U.P. Lucknow
and others reported in [2018 (36) LCD 109
has held by following the dictum of
Hon'ble Supreme Court in re: Amarkant
Rai vs. State of Bihar and others reported
in (2015) 8 SCC 265 that retrospective
regularization can be given to the employee
as per rules.

28. After the judgment and order of
the Tribunal having been passed, the
Executive Engineer is said to have issued
some notices against the petitioner to which
the petitioner is said to have not replied and
the contention of learned counsel for the
petitioner that since the said notices were
without jurisdiction being issued by the
incompetent
authority,
therefore,
the
petitioner was not required to submit the
reply to the notices.

29. Sri Hemendra Pratap has rightly
referred Rule 6 of the Rules, 1999, which
categorically provides that the Appointing
Authority of the government servant shall
be his Disciplinary Authority and only the
DisciplinaryAuthority may impose any
penalty. In the present case, undisputedly
the Appointing Authority of the petitioner
is the State Government. The second
proviso of Rule 6 empowers the Head of
the
Department
to
impose
minor
punishment. In the case in hand, the Head
of the Department would be the Engineerin-Chief. The Engineer-in-Chief had also
not issued any show cause notice to the
petitioner but the Executive Engineer has
issued the notice, who is incompetent
authority in view of the Rule 6 of the
Rules, 1999.

30. Therefore in view of the dictum of
Hon'ble Supreme Court in re: Union of
India & others vs. B. V. Gopinath reported
in [2014 (1) LBESR 75 (SC)] the show
cause notices would be non est as the same
are without jurisdiction. The relevant paras47 and 49 are being reproduced here-inbelow:-

"47. Further, it appears that
during the pendency of these proceedings,
the appellants have, after 2009, amended
the procedure which provides that the
charge memo shall be issued only after the
approval is granted by the Finance
Minister.

49. Although number of collateral
issues had been raised by the learned
Counsel for the appellants as well the
respondents, we deem it appropriate not to
opine on the same in view of the conclusion
that the charge-sheet/ charge memo having
3-5 All. Pradeep Kumar Srivastava Vs. State of U.P. & Ors.
831
not been approved by the disciplinary
authority was not est in the eye of law."

 (emphasis supplied)

31. Since the Tribunal had allowed six
months time to conclude the denovo
inquiry by providing show cause notice to
the petitioner, such inquiry must have been
conducted and concluded within the time
frame and in view of the Full Bench
judgment of this Court in re: Abhishek
Prabhakar Awasthi vs. The New India
Assurance Company Limited and others
reported in [2014 (32) LCD 405] , the
Disciplinary Authority shall be precluded
for conducting the departmental inquiry
and in that case the imputation against the
employee shall loose its efficacy.

32. In the present case, instead of
Disciplinary
Authority/
Appointing
Authority or Head of the Department, the
show cause notice has been issued by the
incompetent officer, which is non est in the
eyes of law. Therefore, the amount so
withheld by the authority could have not
been withheld and the petitioner should
have been paid his entire post retiral dues
counting his total length of service of 33
years
at
least
after
13.09.2018
or
16.11.2018 (Annexure Nos.8 & 9 to the
writ
petition)
whereby
the
State
Government and Head of the Department
itself observed that the petitioner retired
from service on 31.12.2017 and on
superannuation
no
departmental,
administrative or criminal proceedings are
pending against him, even no prosecution is
pending against him. Therefore the delay of
making payment of retiral dues would be
unreasoned and uncalled for, hence, the
petitioner would be entitled for interest on
delayed payment.

33. The purpose of awarding interest
is
that
the
interest
would
be
the
compensation which is allowed in law for
use of money belonging to another or for
delay in paying the said money after it has
become double. If the reason to withhold
the pensionery benefits are unreasonable
having no cogent reason to that effect, the
employee who has suffered, should be
compensated in the eyes of law for the
simple reason that the money belonging to
the employee, which should have been
utilized by him but has been utilized by the
department having no legal lien on that
after the retirement of an employee.

34. The Hon'ble Supreme Court in re:
S.K. Dua vs. State of Hariyana reported in
(2008) 3 SCC 44, vide para-14 has
observed as under:-

"14. In the circumstances, prima
facie, we are of the view that the grievance
voiced by the appellant appears to be well-
founded that he would be entitled to interest
on such benefits. If there are Statutory
Rules occupying the field, the appellant
could claim payment of interest relying on
such Rules. If there are Administrative
Instructions,
Guidelines
or
Norms
prescribed for the purpose, the appellant
may claim benefit of interest on that basis.
But even in absence of Statutory Rules,
Administrative Instructions or Guidelines,
an employee can claim interest under Part
III of the Constitution relying on Articles
14, 19 and 21 of the Constitution. The
submission of the learned counsel for the
appellant, that retiral benefits are not in the
nature of "bounty" is, in our opinion, wellfounded and needs no authority in support
thereof. In that view of the matter, in our
considered opinion, the High Court was not
right in dismissing the petition in limine
832 INDIAN LAW REPORTS ALLAHABAD SERIES
even
without
issuing
notice
to
the
respondents."

(emphasis supplied)

35. The Division Bench of this Court
in re: Radhika Devi vs. Union of India &
others reported in [2002 (1) LBSER 949
(All)] has observed in para-2 as under-

"2. The petitioner has prayed for
family pension, which has been paid, and
now she claims interest due to late
payment. Interest is the normal accretion
on capital and it is not a penalty or
punishment. If a certain amount is payable
at a certain time, then the person to whom
it is paid in time would invest it and earn
interest. However, if there is delay in
payment then the person who retained the
money would have earned interest on the
same. Hence, he has to pay not only the
principal amount but also interest on the
same."

(emphasis supplied)

36. In view of the facts and
circumstances considered here-in-above
and also in view of the dictum of Hon'ble
Supreme Court as well as of this Court, I
am of the considered opinion that the
impugned P.P.O. dated 07.03.2019 does not
sustain in the eyes of law so far as it
calculated the total length of service of the
petitioner as 27 years instead of 33 years
and made deduction of Rs.6,93,270/-,
therefore, the same is hereby quashed.

37. A writ in the nature of mandamus
is issued commanding the opposite parties
to sanction and pay full admissible D.C.R.
gratuity on the basis of length of service of
33 years of service and also to refund the
amount of Rs.6,93,270/-, which has been
withheld, with interest at the rate of 6% per
annum.

38. The opposite parties are also
commanded that the petitioner shall be paid
all consequential service benefits, for that,
the appropriate order shall be passed by the
Competent Authority.

39. Since the denovo inquiry has not
been
conducted
by
the
Disciplinary
Authority/ Appointing Authority in terms of
judgment and order dated 28.09.2015
passed by the State Public Service Tribunal
in Claim Petition No.1086 of 2015 within
the stipulated time, therefore, no such
inquiry can be conduced against the
petitioner and the petitioner shall be treated
exonerated from the said charges.

40. The compliance of this order shall
be made within a period of two months
from the date of production of a certified
copy of this order.

41. Accordingly, the writ petition
succeeds and is allowed.
----------
(2020)03-05ILR A832
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.04.2020

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Misc. Bench No. 4517 of 2013
and
Misc. Bench No. 2397 of 2013

IFCI Ltd. ...Petitioner
Versus
Lucknow Municipal Corp. & Ors.
 ...Respondents