3. The brief facts relevant to the questions in controversy involved in the case are that the petitioner was appointed as Assistant Engineer in Public Works Department (P.W.D.) in the year 1973 and has been retired from service from the post of Executive Engineer on 31.7.2004. While he was in service a departmental inquiry was instituted against him by means of Government order dated 16.1.2004 appointing Chief Engineer P.W.D. Varanasi Region, Varanasi as Inquiry Officer in respect of construction of alleged sub standard road by him. However, the petitioner has apprised the authorities that he did not had any role to play in carrying out the work of disputed road from ballasting upto final coating (painting) of the top level (crust), and the said road was constructed by his successor namely Sudhir Kumar Sinha after he had handed over entire charge to him on 31.7.1999. Considering his aforesaid explanation and keeping in view the undisputed facts borne out from records, the Executive Engineer in his communication dated 18.6.2004 made to the Superintending Engineer clearly stated that the work having been undertaken during the period of period of Sudhir Kumar Sinha, and no charge against the petitioner seems to be made out hence he recommended for action against Sri Sinha. A copy of the letter dated 18.6.2004 written by the Executive Engineer to the Superintending Engineer is on record as Annexure-2 of the writ petition.
4. It is stated that meantime the petitioner retired from service as Executive Engineer on 31.7.2004 but the State Government has granted its sanction to continue the departmental inquiry against him. In continuance of aforesaid inquiry the petitioner was served a charge sheet dated 4.3.2005 levelling solitary charge that while he was posted as Assistant Engineer P.W.D., Sant Ravidas Nagar, the disputed road was sanctioned and the material (stone ballast 40-63 mm) was supplied though the said work was carried out by his successor but it was found that there was shortage in thickness of the crust (top layer) as per specification, thus, he was alleged to be guilty of causing financial loss to the Government to the tune of Rs.19,303/-.
5. The petitioner denied the entire allegation by means of his reply dated 15.3.2006 annexing therewith cogent evidences in support thereof and it was clearly demonstrated therein that as per estimated cost of the project, the required quantity of stone ballast was supplied under the Agreement executed in this regard, which was duly verified by the concerned Junior Engineer and thereafter on 14.7.1999 he handed over his entire charge to the new incumbent namely Sudhir Kumar Sinha including the charge of disputed project and since inception upto the last coating, the disputed road was supervised by Sudhir Kumar Sinha, whose endorsement is very much there in the Measurement Book, hence the petitioner can by no stretch be associated with the charge and the entire charge sheet was liable to be ignored. A true copy of the reply of charge sheet submitted by the petitioner on 15.3.2006 is on record as Annexure-3 of the writ petition.
6. It is further stated that straightway, on consideration of the reply of the charge sheet submitted by the petitioner, the Inquiry Officer submitted inquiry report on 23.3.2007 holding that the petitioner is guilty of solitary charge of causing loss to the Government to the tune of Rs.19,303/- in connection of the shortage in thickness of top layer (crust) of the road. Thereafter the petitioner was served with a show cause notice dated 1.6.2007 annexing therewith a copy of the inquiry report. The copies of show cause notice dated 1.6.2007 and inquiry report dated 23.3.2007 are on record as Annexure-4 and 5 respectively to the writ petition.
7. On receipt of the aforesaid show cause notice the petitioner submitted a comprehensive reply to the show cause notice on 28.1.2008 and 24.2.2008 by bringing cogent evidences on record wherein it was demonstrated that he can in no manner be associated with the charge, as it was clearly borne out from record that the entire work from the first to the last stage was undertaken by his successor Sudhir Kumar Sinha and Junior Engineer Indrajeet Yadav, who at no point of time complained about any shortage of material, which was stated to be supplied during the tenure of the petitioner, thus there was nothing on record to implicate the petitioner in the matter. It was specifically stated that the Inquiry Officer recorded perverse finding, based on no evidence, especially ignoring the communication of the Executive Engineer dated 18.6.2004, wherein it was clearly mentioned that no charge against the petitioner is made out. The copies of reply of show cause notice submitted by the petitioner on 28.1.2008 and 24.2.2008 are on record as Annexure-6 and 7 of the writ petition.
8. It is further stated that the State Government, with a total non-application of mind relying upon the inquiry report, held the petitioner guilty of causing loss to the Government to the tune of Rs.19,303/- and proposed the punishment of recovery of said amount from the admissible dues of the petitioner, which was referred to the U.P. Public Service Commission for consultation. In pursuance thereof the U.P. Public Service Commission on consideration of the entire materials on record, by means of order dated 3.6.2008 (contained in Annexure-10 of the writ petition) declined to grant its approval to the aforesaid punishment categorically stating therein that the punishment is proposed on mere assumption rather than being based on materials on record and the matter was sent back to the Government. Thereafter, the Government by means of fresh communication referred the matter again to the Commission with the same penalty and surprisingly, the Commission in turn, although affirmed its earlier view, but in a wholly unjustified manner opined that the amount in question may be adjusted from the post-retiral benefits of petitioner. A true copy of the impugned communication letter dated 22.09.2008 by the U.P. Public Service Commission, is on record as Annexure No. 11 to the writ petition. Thereafter the Government, ignoring the fact that the U.P. Public Service Commission still affirmed its earlier view, passed the impugned order dated 06.11.2008 concluding the enquiry with the direction to recover a sum of Rs.19,303/- from the admissible dues of the petitioner. A true copy of the impugned order dated 06.11.2008 passed by the State Government, is on record as Annexure No. 12. to the writ petition.
9. It is further stated that in view of the clear mandate of Article 351-A of Civil Services Regulations, respondents could not have instituted departmental enquiry against the petitioner, for the event which took place in 1998-99 and admittedly, the chsarge-sheet got issued on 04.03.2005. Thus, departmental enquiry would be taken to have been instituted against him w.e.f. 04.03.2005 which is clearly beyond the period of 4 years from the date of occurrence of the incident. In this view of the matter, the impugned order directing recovery from the post-retiral benefits is wholly illegal and without jurisdiction on this score alone.
10. It is further stated that the respondents from the inception were aware that petitioner could at best be held liable for recovery to the tune of Rs.19,303/- due to alleged financial loss caused to the Government in the pending departmental enquiry. Thus, it was wholly unjustified on its part to withhold most of his post- retiral benefits like gratuity, commutation, leave encashment, etc. to the tune of Rs.11,50,000/- and further, causing serious prejudice in only paying provisional pension to the petitioner in the name of alleged act of misconduct. There existed no plausible justification for the respondents in withholding the entire post-retiral benefits like gratuity, commutation, leave encashment, etc. approximately to the tune of Rs.11,50,000/- on the one hand and on the other, paying provisional pension, fraudulently showing payment of the R.D. amount, withholding the T.A. Bills as w ell as making delayed payments toward GPF, GIS making him clearly entitled for 18% interest over the same. In this regard, detailed representation dated 06.01.2009 is on record as Annexure No. 14 to the writ petition.
11. In the wake of aforesaid facts and circumstances of the case, learned counsel for the petitioner has submitted that the impugned punishment order right from the stage of charge-sheet is wholly illegal and without jurisdiction, inasmuch as same is in utter disregard of the communication of the then Executive Engineer dated 18.06.2004 whereby he has clearly stated that no charge was made out against petitioner, still petitioner has been implicated in the matter by serving charge- sheet, regarding which there existed no evidence except the fact that the Project was sanctioned and the material was supplied during his tenure. Thus, the finding of the Enquiry Officer is based on no evidence except the assumption of fact that the supply of material was made during the period of the petitioner, therefore, the finding is perverse on the face of record. Thus, the impugned punishment order based upon the findings of the enquiry report is not sustainable in the eyes of law.
12. Learned counsel for the petitioner has further submitted that in any view of the matter, the entire exercise of maintaining penalty of proportional recovery against the petitioner for alleged loss caused to the Government, despite the U.P. Public Service Commission by means of its order dated 03.06.2008 declined to accord its approval to the same, is wholly illegal and without jurisdiction.
13. It is further submitted that having endorsed its earlier opinion that there existed no evidence to prove the charge against the petitioner, the U.P. Public Service Commission clearly exceeded its jurisdiction in passing the impugned order dated 22.09.2008 in still recommending that the amount in question may be recovered from the post retiral benefits of the petitioner. The action of the U.P. Public Service Commission to this extent is wholly erroneous and improper.
14. Having considered the rival contention of learned counsel for the parties and on perusal of the record we find that the submissions of learned counsel for the petitioner have substance and deserve to be accepted.
15. So far as attack against advice of the U.P. Public Service Commission dated 22nd September, 2008 to the State Government for realising the alleged loss caused to the Government in the tune of Rs.19,303/- from the petitioner is concerned, it is to be noted that U.P. Public Service Commission is independent body constituted under Article 315 of the Constitution of India and is Constitutional functionary. Under Article 320 of the Constitution the functions of Public Service Commissions have been enumerated which inter alia under Clause (3) (c) provides that the Union Public Service Commission or the State Public Service Commission, as case may be, shall be consulted on all disciplinary matters affecting a person serving under the Government of India or the Government of State in civil capacity including memorials or petitions relating to such matters and it shall be the duty of a Public Service Commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor of the State, may refer to them.
16. For ready reference it would be appropriate to quote the provisions of Article 320 (3) (c) of the Constitution as under:-
"320. Functions of Public Service Commission:- (1) ...............
(2) .......................
(3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted-
(a) ...............................
(b) ...............................
(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
(d) ................................
(e) ...............................
and it shall be the duty of a Public Service Commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor [* * *] of the State, may refer to them:
Provided that the President as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor [* * *), as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.
(4) ..................................
(5) ..................................."
17. In State of U.P. Vs. Manbodhan Lal Srivastava A.I.R. 1957 SC 912 the Hon'ble Apex Court has held that the advice of the Public Service Commission is not binding on the Government. However, the object of Clause (3) (c) of Article 320 is to give an assurance to the services that an independent body has considered the action proposed to be taken against a particular person and also to afford the Government unbiased advice on matters affecting morale of the public services.
18. In Rajnath Bajaj Vs. The Public Service Commission, Madhya Bharat and another A.I.R. 1955 M. B. 56 it has been held that the Public Service Commission is an independent body and it is not an authority subordinate to the Government.
19. In Girish Arora and others Vs. State of Haryana and another 1997 L.I.C. 3182 a Division Bench of Punjab and Haryana High Court has held that the primacy and independence of Public Service Commission is to be protected by the Government from bureaucratic and political interference. Government cannot supervise the day-to-day functioning of the Commission. The pertinent observations made in paras 69 and 70 of the aforesaid judgment are extracted as under:-
"69. ....................... Erosion of the independency of the Commission due to interference by the executive authorities will not only dilute the autonomy of the Commission but will greatly damage the publice services. It is, therefore, the constitutional duty of the State to ensure that the functioning of the Publice Service Commission is not tampared by bureaucratic and political interference and the commission is left free to select the best talent for public services.
70. There is no doubt the role of the Public Service Commission is recommendatory and in its capacity as the appointing authority, the Government can decline to approve the recommendations made by the Commission if there exist good reasons for doing so and the Government is also entitled to take into consideration the developments which may take place after the receipt of the recommendations from the Commission. The Government can exercise its veto on the recommendations of the Commission in cases recommendations are found to be tainted with mala fides or corruptions but it can neither interfere in the day to day functioning of the Commission nor can supervise the functioning of the Commission."
20. Thus, from the aforesaid legal position it is clear that the Commission is an independent body and it has to discharge its duties and functions independently free from political and bureaucratic influence. It is under constitutional obligation to advise the Government when the matter pertaining to the disciplinary action against particular Government servant referred to it and in our view, while giving its opinion/advice, it has to apply its mind independently, without being influenced by Government and bureaucracy, such opinion/advice of the Commission must be in the clearest terms and it should not be ambiguous as we find in instant case.
21. In this case we find that vide order dated 3rd June, 2008, contained in Annexure-10 of the writ petition, the U.P. Public Service Commission has declined to accord approval of the proposed punishment intended to be awarded to the petitioner for recovery of a sum of Rs.19,303/- from the post retiral dues of the petitioner on finding that the charge against the petitioner was not proved on the basis of material available on record but by subsequent letter dated 22nd September, 2008 contained in Annexure-11 of the writ petition, while insisting upon its earlier view that charge against the Government servant was not proved on the basis of materials on record in disciplinary inquiry, yet, the Commission has advised that the State Government can still recover the said amount from the gratuity of the petitioner. In our view, such approach of the commission is not only ambiguous but self contradictory also. Once the Commission was of the consistent view that charge against the petitioner was not proved on the basis of materials available on record and findings recorded by the Inquiry Officer is based on speculations and not on actual materials, in such eventuality, it was not open for the Commission to approve the proposed punishment intended to be awarded to the petitioner and to give liberty to the State Government for recovery of the said amount of Rs.19,303/- from the post retiral dues of the petitioner. In our considered opinion, such approach of the Commission is wholly undesirable, improper and uncalled for, therefore, cannot be appreciated by this Court. Accordingly, the opinion/advice of the Commission to the extent it gives liberty to the Government to recover the aforesaid amount from the post retiral dues of the petitioner cannot be sustained.
22. Now examining the issue from another angle, we find that although it is not in dispute that the road in question was sanctioned by the petitioner while he was working as Assistant Engineer and materials for construction of the said road were also supplied during his tenure. But before the construction work of the disputed road was started, the charge of construction of disputed road was handed over by the petitioner to another Assistant Engineer namely Sri Sudhir Kumar Sinha. Neither the materials supplied during the tenure of the petitioner were utilized in his tenure nor any complaint about shortage of materials has ever been made by Sri Sudhir Kumar Sinha, Assistant Engineer, who had taken over charge from the petitioner or Junior Engineer who was instructed to construct the road along with Sri Sinha, that is why Executive Engineer vide his letter dated 18.6.2004 addressed to the Superintending Engineer, P.W.D., Circle Mirzapur (Annexure-2 of the writ petition) had recommended for constitution of charge against Sri Sudhir Kumar Sinha by exonerating the petitioner from the said charge. Thus, in our view also, in case there was any shortage of materials for construction of disputed road according to the specification underlying the contract for construction work, it was duty of the successor Assistant Engineer Sri Sinha to make complaint at the time of verification of materials when the charge was handed over to him. The materials were verified by Junior Engineer who did not also make any complaint about any shortage of materials, as such if the road was not constructed according to the specification of the contract and construction was found little substandard from said specification, the petitioner could not be held guilty of said discrepancy in construction of the said road. Accordingly the view take by the Disciplinary Authority, contrary to us, is wholly erroneous and perverse as such can not be sustained.
23. In view of the aforesaid discussions, the impugned letter of the Commision dated 22.9.2008 to the extent it gives liberty to the Government for recovery of Rs. 19303/- from the post retiral dues of the petitioner, contained in Annexure-11 of the writ petition and impugned order dated 6.11.2008 passed by the respondent no.1 for recovery of said amount from the post retiral dues of the petitioner cannot be sustained and are hereby quashed.
24. Since the writ petition deserves to be allowed merely on the aforestated grounds, therefore, we need not go to the other contentions raised by the learned counsel for the petitioner. Accordingly, writ petition stands allowed with a direction to the respondents to release final pension and entire post retiral dues of the petitioner expeditiously preferably within a period of two months from the date of production of certified copy of the order passed by this Court before the concerned authorities by ignoring the impugned orders passed by the concerned respondents.