CWP No.11373 of 2002 1 In the High Court of Punjab and Haryana at Chandigarh. Date of decision:26.08.2008. B.S. Bansal, Executive Engineer ... Petitioner Versus State of Punab and another ... Respondents. CORAM HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.Puneet Jindal, Advocate, for the petitioner. Mr.S.S. Sahu, Asstt. Advocate General, Punjab, for the respondents. PERMOD KOHLI, J. (ORAL): I have heard the learned counsel for the parties at length. The petitioner was serving as an Executive Engineer with the PWD (B & R) with the respondent-State. He retired on attaining the age of superannuation on 30.09.2001. After retirement, only provisional pension was fixed and other retiral benefits were not released. The petitioner, accordingly, filed the present writ petition claiming gratuity, leave encashment and commutation of pension. The petitioner also claims interest at the rate of 18 per cent per annum on the delayed payments. During the pendency of this petition, the petitioner was issued a Charge Sheet dated 20.09.2002 in respect to the incidents for the year 1998. It is the admitted case of the parties that on receipt of the reply to the aforesaid charge-sheet, disciplinary proceedings against the petitioner were CWP No.11373 of 2002 2 dropped. It is also admitted case of the petitioner that during the pendency of this petition, all the retiral benefits have been released and the pension commuted. However, the respondents have deducted a sum of Rs.25570/- from the gratuity payable to the petitioner. This deduction has been made on the ground that the petitioner, at the relevant time, had over drawn the salary. However, from the reply, it appears that no details have been given to show as to how and when the salary was over drawn. On the other hand, the respondents have placed on record, Annexure R-4, copy of an order dated 27.04.2004, wherein it has been stated that the petitioner has made over payment to a Contractor for which there was no provision in the estimate. The pleas raised by the respondents are self contradictory. Even if, it is assumed that the plea raised by the respondents deserves any consideration, no show cause notice was ever issued to the petitioner seeking his explanation regarding any excess/over payment of the salary or excess payment to the Contractor. In any case, excess payment in any of the above two situations, amounts to misconduct. Though, disciplinary proceedings were initiated by service of charge-sheet, yet the disciplinary proceedings have now been dropped. In these circumstances, no recovery can be made from the gratuity payable to the petitioner. Recovery from the gratuity or from any other retiral benefits is also one of the punishments provided under the rules. In the absence of any disciplinary proceedings or there being any findings in any enquiry, no such recovery can be effected. Regarding excess drawn of salary, no circumstances have been indicated. As per Sahib Ram Vs. State of Haryana and others, 1995 Supp. (1) S.C.C., 18, it is settled law that no recovery can be effected for excess drawn amount, unless it is established that such excess drawn payment was CWP No.11373 of 2002 3 on account of misrepresentation and fraud committed by the employee. There is neither any such allegation, nor there is any finding to this effect. Hence, the deduction of Rs.25570/- from the gratuity of the petitioner is not justifiable. In view of the above circumstances, this writ petition is allowed. The respondents are directed to refund a sum of Rs.25570/- to the petitioner within a period of three months from today. It is also not in dispute that the retiral benefits have been delayed on account of the service of charge sheet, however, no disciplinary proceedings were ever initiated. This clearly indicate that there was no valid grounds for with-holding the retiral benefits of the petitioner. The petitioner is, thus, also entitled to interest at the rate of 6 per cent per annum on delayed payments of leave en- cashment. So far as the gratuity is concerned, the petitioner is entitled to the statutory interest in terms of the Payment of Gratuity Act, 1972. The interest shall become payable after the period of three months from the date of retirement till the date of actual payment. No costs. 26.08.2008 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES