HIGH COURT OF UTTARAKHAND, NAINITAL Writ Petition No.659 of 2008 (S/S) {Old No.42756 of 2000} Jhandoo Ram S/o Sri Hira Lal ……… Petitioner Versus The State Agricultural Produce Markets Board & others ……… Respondents. Dated:- 01st July, 2010 Hon’ble Tarun Agarwala, J. Heard Mr. Gopal Narain, the learned counsel for the petitioner and Mr. J. C. Belwal, the learned counsel for the respondents. The petitioner was working as a Mandi Nirikshak in the U.P. Krishi Utpadan Mandi Samiti, at Bajpur in Udham Singh Nagar and retired on 31st July, 1999. It transpires that the petitioner was suspended in the year 1992 and, thereafter, was issued a chargesheet dated 27th September, 1992. The charges against the petitioner related to the issuance of various gate pass to a manufacturing company. The disciplinary proceedings was initiated and, the inquiry officer, after considering the relevant evidence that was brought on record, gave a finding that the charges stood proved against the petitioner. The disciplinary authority, after considering the reply to the show cause notice and the inquiry report, issued an order dated 09th July, 1993 imposing three punishment namely that (i) the petitioner would not be paid the remaining salary during the period of suspension (ii) two increments were withheld for two years and (iii) a censure was recorded in his service book for unauthorised issuance of gate pass. The petitioner accepted the aforesaid punishment order and, subsequently, retired from service on 31st July, 1999. Upon his retirement, the petitioner applied for post retiral benefits and, at that stage, the Additional Director issued an order dated 04th August, 1999 indicating that pursuant to an another inquiry report dated 19th March, 1996, the 2 Mandi Samiti had incurred a loss of Rs.1,85,000/- for the wrongful issuance of the gate pass in which the petitioner and the Secretary of the Mandi Samiti were responsible and, consequently, by the said order directed recovery of the amount in equal proportion from both the persons. Pursuant to the said order, the Mandi Samiti, Bajpur issued an order dated 05th October, 1999 directing the recovery of the amount of Rs.92,500 from the petitioner. Since the amount was not paid by the petitioner, his post retiral benefits were not released by the respondents. The petitioner, being aggrieved, filed the present writ petition for the quashing of the order dated 04th August, 1999, 05th October, 1999 and the subsequent orders issued by the respondents for payment of the said amount and has further prayed that the respondents be directed to pay the retiral dues to the petitioner. A perusal of the order dated 04th August, 1999 indicates that the loss which is alleged to have been incurred by the Mandi Samiti could not be brought to the knowledge of the disciplinary authority as well as in the disciplinary proceedings initiated against the petitioner in the year 1992/1993 and, consequently, an inquiry was initiated in which it was found that the petitioner and the Secretary was equally involved in the loss of Rs.1,85,000/-, which the Mandi Samiti incurred upon the wrongful issuance of the gate pass. The respondents, consequently, contended that the loss of Rs.92,500 was liable to be recovered from the petitioner and / or adjusted from his post retiral benefits dues. Having heard the learned counsel for the parties, this court is of the opinion that the action of the respondents for the recovery of the amount by orders dated 04th August, 1995 and 05th October, 1999 is violative of the principles of natural justice. Before initiating any recovery proceedings, it is imperative that a notice is issued to that person. In the event, the petitioner denies his liability, then it would become necessary to initiate an inquiry and thereafter prove the charge against the petitioner. In the present case, no such action has been 3 taken. On the other hand, the disciplinary proceedings that was initiated did not contain a charge for recovery of any amount on account of the loss incurred by the Mandi Samiti. In the absence of this charge, no recovery order was passed while imposing the punishment to the petitioner by an order dated 09th July, 1993. Any subsequent charge levelled against the petitioner was required to be proved only after initiating a domestic inquiry, which in the present case was not done. The record and the letter of 04th August, 1999 indicate that the inquiry report dated 19th March, 1996 is an exparte report, for which no opportunity was provided to the petitioner. In view of the aforesaid, this court is of the opinion that the recovery of Rs.92,500/- from the petitioner is violative of principles of natural justice and cannot be sustained. The impugned orders dated 04th August, 1999, 05th October, 1999 and consequential orders passed therein are all quashed. The writ petition is allowed. A writ of mandamus is issued commanding the respondents to release the post retiral dues within three months from the date of production of a certified copy of this order. (Tarun Agarwala, J.) Dated 01.07.2010 LSR 4