JUDGMENT A.P. Sahi, J.
1. Heard Sri R.K. Ojha, learned Counsel for the petitioner and learned Standing Counsel for the Respondents.
2. I have perused the Affidavits filed on behalf of the parties. The short question that arises in this case is as to whether the respondents have the authority to withhold the payment of gratuity of the petitioner and proceed to adjust the amount under the impugned order dated 7.11.2005.
3. The petitioner's payment of gratuity has been considerable reduced on account of the deductions made under the order dated 7.11.2005 appended as Annexure-8 to the writ petition.
4. The petitioner attained his age of superannuation way back in the year 1997 whereafter it is alleged that neither any inquiry was held against the petitioner nor was he subjected to any disciplinary proceedings and, as such, in the absence of any such computation of any loss for the State in appropriate proceedings, there was absolutely no occasion to the respondents to have proceeded to make deductions from of grauity that was payable to the petitioner. In reply to the aforesaid averments, the respondents in para 7 of the counter-affidavit have stated that they have no knowledge as to whether any inquiry or any disciplinary proceeding was initiated against the petitioner or not. They have proceeded to make deductionipnly on the basis of the letter dated 21.5.2003; copy whereof has been appended as Annexure-CA- 3 to the counter-affidavit. A perusal of the said letter indicates that on the basis of some audit report dated 15.11.2001, the petitioner has been found to put the respondents to loss of the amount referred to in the said letter.
5. From a perusal of the said letter it is apparent that the amount has been computed without conducting any inquiry proceedings' or holding any disciplinary proceeing either during the period when the petitioner was in service or even thereafter in accordance with rules. In such circumstances, this Court is of the firm opinion that no such recovery could have been made even keeping in view the Rules relied upon by the respondents and as referred to in Annexure-CA-8 to the counter-affidavit. The respondents contend that they have proceeded to recover this amount by exercising powers under Rule 9 of the Uttar Pradesh Retirement Benefit Rules 1961. A perusal of the Rules, which have been indicated in Annexure-CA-8, make it clear that such a recovery from the gratuity can be made only if the conditions of Regulation 351 -A of the Civil Services Regulations are fulfilled. In the instant case, there is no material in the counter-affidavit nor any averment which would even remotely suggest any proceeding having initiated against the petitioner invoking the provisions of Regulation 35 1 -A. The aforesaid Rule further provides that such recovery can only be made provided a person is subjected to any such inquiry or has been found guilty in any such proceeding initiated against him. Both the aforesaid ingredients are absent. Apart from this, no other rules was ever pointed out by the learned Standing Counsel under which payment of gratuity could be withheld.
6. Sri R.K. Ojha has relied on 2 decisions of the Apex Court reported D.V. Kapoor v. Union. of India and the decision reported in 1990 Suppl. SCC 640, to support his submissions. A perusal of both these decisions indicate that unless and until there is a Rule available. Act employer authority deduction of gratuity, the same cannot be done. In the instant case, the respondents have exceeded in their jurisdiction my making recovery against the petitioner. Accordingly, the impugned order dated 7.11.2005 is quashed with a direction to the respondents to release the entire amount which was due, to the petition a together with interest @ 12 % per annum forthwith without any further delay within 6 weeks from the date of presentation of a certified copy of this order before him.
7. The writ petition is allowed.