HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.505 of 2009 (S/S) Devi Dutt Mathpal S/o late Sri Bala Datt Mathpal … Petitioner Versus The Commissioner and another … Respondents Dated:- 21st April, 2010 Hon’ble Tarun Agarwala, J. Heard Sri Sudhir Kumar, the learned counsel for the petitioner and Sri Subhash Upadhyaya, the learned Brief Holder for the State. The petitioner was appointed in the Food and Civil Supplies Department and was posted as a Food Inspector. In the year 1987, the petitioner was chargesheeted and suspended. An enquiry was held and the services of the petitioner was terminated by an order dated 14th March, 1989. Feeling aggrieved by the said termination order, the petitioner filed an appeal before the Commissioner, which was allowed and the order of termination was set aside and the Collector was directed to reconsider the matter. It transpires that a fresh order of punishment dated 29th September, 2000 was passed for recovery of Rs.2,07,422/- towards the loss caused by the petitioner to the department alongwith stoppage of two annual increments and an adverse entry in his service record. Further, no salary was to be paid to the petitioner during the suspension period. Against the punishment order dated 29.09.2000, the petitioner preferred a claim petition before the Tribunal, which was allowed by an order dated 25th February, 2004 and the punishment order was set aside with a direction to the authority to hold a fresh enquiry. Upon the matter being remitted again, the authority passed a fresh punishment order dated 10.01.2005 directing a recovery of Rs.2,03,522/- from the petitioner towards the loss suffered by the department. It was further directed that no salary would be paid to the petitioner during the suspension period and stoppage of two annual increment with cumulative effect. In the meanwhile, during the pendency of these proceedings, the petitioner retired on 31st January, 2002 and, against the punishment order dated 10.01.2005, the petitioner preferred an appeal and, during its pendency, filed a claim application before the Tribunal for payment of pension. This claim petition was disposed of with a direction that a provisional pension would be paid to the petitioner during the departmental proceedings. It is alleged that the petitioner is being paid provisional pension w.e.f. July 2005 onwards. Against the order dated 10.01.2005 imposing punishment to the petitioner, the appeal of the petitioner was eventually dismissed by the State Government against which the petitioner filed a fresh claim application before the Tribunal. The said claim application of the petitioner was allowed by an order dated 07.11.2008. The operative portion of the order of the Tribunal is quoted hereunder:- “The claim petition is partly allowed. The impugned punishment orders are hereby quashed. The disciplinary authority shall be at liberty to proceed afresh in accordance with law.” Based on the aforesaid order, the departmental proceedings are still pending and has not been finalized as yet and the petitioner has filed the present writ petition alleging that he had retired in January, 2002 and that post retiral benefits has not been paid to him so far. The petitioner submitted that it is not known as to when the departmental enquiry would be concluded and, consequently, the petitioner prayed for a writ of mandamus commanding the respondents to pay the post retiral dues alongwith interest @ 18 per cent per annum. In paragraph 16 of the writ petition, the petitioner has contended that approximately a sum of Rs.10.50 lakhs is due and payable to the petitioner towards the post retiral dues etc. The learned counsel for the petitioner submitted that as per the averments made in the counter affidavit, a sum of Rs.1.68 lakhs is at best recoverable from the petitioner for the loss, which is alleged to have been caused to the department. The learned counsel for the petitioner consequently submitted that the interest of justice would be served, if a sum of Rs.1.68 lakh is retained by the department till the completion of the enquiry proceedings and the balance amount may be released alongwith interest. The court has perused the counter affidavit. In paragraph 7 of the counter affidavit, it has been alleged that the enquiry officer in its earlier report had found that the recovery of Rs.1,68,374.22 paise should be made from the petitioner, but, pursuant to the punishment order dated 10.01.2005, a sum of Rs.2,03,522/- was imposed upon the petitioner. The Public Service Tribunal found that the loss occurred to the public exchequer and that the recovery of Rs.2,03,522/- was not based on any cogent reasons and on this short ground the punishment order was set aside. This court further finds that the contention of the learned counsel for the petitioner in paragraph 16 of the writ petition that approximately a sum of Rs.10.50 lakhs is due and payable to the petitioner has not been denied by the respondents in paragraph 8 of the counter affidavit. On the other hand, in paragraph 7 of the counter affidavit, the respondents admit that a sum of Rs.1.68 lakhs (approx.) is recoverable from the petitioner. In the light of the aforesaid, this court is of the opinion that the respondents is at best entitled to retain a sum of Rs.2 lakhs in order to safeguards their interest, but, the respondents are not justified to retain the entire amount, which is due and payable to the petitioner towards the post retiral benefits. In the light of the aforesaid, the writ petition is allowed and a writ of mandamus is issued to the respondents commanding them to release the balance amount towards the post retiral dues, etc. to the petitioner within two months from the date of production of a certified copy of this order alongwith interest @ six per cent per annum from the date of retirement after retaining a sum of Rs.2 lakhs towards the alleged loss caused to the department. It is made clear that if any amount has already been recovered from the petitioner, the same shall be adjusted from the aforesaid amount of Rs.2 lakhs. The Court further directs the respondents to complete the enquiry proceedings and pass a final order within three months from the date of production of a certified copy of this order. (Tarun Agarwala, J.) Dated 21.04.2010 LSR