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2025:CGHC:8082

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

WPS No. 8586 of 2019

1 - Suresh Singh S/o Late Vijay Bahadur Singh Aged About 57 Years

Posted As Asstt. Sub Inspector, (Mechanic) (M.T. Branch) At Police Line,

Raipur District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

--- Petitioner

versus

1 - State Of Chhattisgarh Through Its Secretary, Department Of Home And

Police Mantralaya, Mahanadi Bhawan, Nawa Raipur, Atal Nagar., District :

Raipur, Chhattisgarh

2 - The Director General Of Police Phq - Indrawati Bhawan, Nawa Raipur,

Atal Nagar, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

3 - The Superintendent Of Police District Raipur Chhattisgarh., District :

Raipur, Chhattisgarh

4 - The Reserve Inspector Police Line, Raipur, District Raipur

Chhattisgarh., District : Raipur, Chhattisgarh

5 - Shri Gurjit Singh The Then Reserve Inspector, At - Police Line, Raipur

And Now Posted As Deputy Superintendent Of Police, At O/o The

Superintendent Of Police, Durg, District Durg Chhattisgarh., District : Durg,

Chhattisgarh

--- Respondents

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WPS No. 3137 of 2024

1 - Suresh Singh S/o Late Vijay Bahadur Singh Aged About 62 Years

Posted As- Sub - Inspector, Mechanic M.T. Branch, At- Police Line, Raipur,

District : Raipur, Chhattisgarh

---Petitioners

Versus

1 - State Of Chhattisgarh Through Its Secretary, Dept. Of Home And

Police, Mantralaya, Mahanadi Bhawan, Nawa Raipur, Atal Nagar, Raipur,

District : Raipur, Chhattisgarh

2 - The Director General Of Police Phq- Indrawati Bhawan, Nawa Raipur,

Atal Nagar, District : Raipur, Chhattisgarh

3 - The Superintendent Of Police District- Raipur, Chhattisgarh.

4 - The Reserve Inspector Police Line, Raipur, District : Raipur,

Chhattisgarh

--- Respondents

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For petitioner : Mr. Rajesh Kumar Kesharwani with

Ms. Shrijita Kesharwani, Advocates.

For Respondents-State:Mr. Rajeev Bharat, Govt. Advocate.

For Respondent No. 5 :Mr. Chandrikaditya Pandey, Adv.

in WPS No. 8586/2019

----------------------------------------------------------------------------------------

Hon'ble Shri Naresh Kumar Chandravanshi, J

ORAL Order

14-2-2025

1. Since in both the cases, issue for determination is one and the

same, whether despite denial by the employee of allegation of

embezzlement of lacs of rupees, without any departmental proceeding or

any judicial proceeding (criminal case), any recovery can be made from

that employee and his retiral dues can be withheld, therefore, both the

petitions are being heard together and decided by this common order. For

convenience, most of the documents have been referred from WPS No.

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8586/2019.

2. Facts of the case in nutshell are that, the petitioner was

initially appointed on the post of Constable (Mechanic) on 1-7-1982 in the

police department. On 11-6-2011, while he was posted as Assistant Sub

Inspector (Mechanic), he was directed to do duty in ‘Shourya Petrol

Pump’, Police Line, Raipur (henceforth, referred to as ‘petrol pump’)

without any written/formal order. From 11-6-2011 to 7-4-2014, he

performed duty in said petrol pump under oral instruction of respondent

No. 4/5. Thereafter, upon oral instruction, he was returned to Police Line,

Raipur in M.T. Branch. Petitioner was holding technical post and in the

petrol pump also, he was looking after mechanical fault. Sole in-charge of

the petrol pump was respondent No. 4/5. Under oral direction and under

pressure of respondent No. 4/5, petitioner looked after transaction of petrol

pump, whereas he was not having any experience of keeping books of

account in respect of transaction of petrol pump. He performed his duty

honestly, but vide communication dated 23-3-2014 (Annexure P-3) and 4-

9-2014 (Annexure P-5), respondent No. 4/5 informed him that, upon

physical verification of books of account of petrol pump, deficiency of Rs.

30,47,345.91/- and Rs. 27,23,659.00 respectively was found and he was

directed to deposit said amount. Under pressure, the petitioner deposited

Rs. 8 lacs twice. Vide communication dated 7-9-2015 (Annexure P-6),

respondent No. 4/5 informed that as per audit report of petrol pump, during

in-charge period of petitioner i.e. from 12-6-2011 to 7-4-2014, deficiency of

Rs. 80,49,387.34/- has been found in account books, therefore, he was

directed to submit explanation. Vide Annexure P-7 dated 8-9-2015,

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petitioner submitted his explanation stating inter alia that he was unknown

about functioning of petrol pump and, therefore, he had refused to perform

duty there, further, he has not committed any theft or mistake and due to

such allegation of huge embezzlement, he has been highly upset. Despite

that, respondent No. 3/Superintendent of Police, Raipur issued show

cause notice/adjustment notice (Annexure P-1) dated 11-9-2015 stating

inter alia that, on being audited the account books of petrol pump from firm

of Chartered Accountant during the period of 12-6-2011 to 7-4-2014,

deficit of Rs. 80,49,387.34/- has been found, as such, he was directed to

clarify his position and ensure adjustment. Reply vide Annexure P-8 dated

14-9-2015 was submitted by the petitioner, claiming himself to be innocent.

But, without considering reply of petitioner, respondent No. 3 passed

impugned order (Annexure P-2) dated 16-11-2015 directing deduction of

Rs. 10,000/- per month from his salary, which continuously deducted from

his salary. Challenging aforesaid show cause/adjustment notice

(Annexure P-1) dated 11-9-2015 and recovery order (Annexure P-2) dated

16-11-2015 issued by the respondent No. 3/ Superintendent of Police,

Raipur, petitioner filed WPS No. 8586/2019 under Article 226 of the

Constitution of India seeking following reliefs :-

“a. This Hon'ble Court may kindly be pleased to issue a

writ in the nature of mandamus or suitable direction to

the respondents for calling the records pertaining the

impugned orders for its perusal.

b. This Hon'ble Court may kindly be pleased to quash

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the impugned recovery order, dt. 11/09/2015 Annexure

P/1 and dt. 16/11/2015 Annexure – P/2.

c. This Hon'ble Court may kindly be pleased to direct the

respondents to return back the recovered amount from

the petitioner with penal interest @ 18% p. a.

d. May kindly be pleased to direct the respondent

authorities for enquiring the affairs from the agency of

Economical Offence Wing.

e. May kindly be pleased to allow compensation and any

other relief as the Hon'ble Court may be deemed fit and

proper.

f. Cost of petition may kindly be allowed.”

2.1 During such recovery, on 29-2-2024, the petitioner retired

from the post of Sub Inspector (Mechanic), but because of said show

cause notice/adjustment notice (Annexure P-1), recovery notice (Annexure

P-2) and allegation of embezzlement, his retiral dues have been withheld,

therefore, he has filed WPS No. 3137/2024 under Article 226 of the

Constitution of India seeking following reliefs :-

“10.1 The Hon'ble Court may kindly be pleased to direct

the respondent authorities to release the retiral dues, full

pensions, gratuity, GPF, Leave encashment, GIS etc. of

the service of the petitioner.

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10.2 That, the Hon'ble Court may kindly allow the

interest @12 p.a. for the delay in payment of the

benefits.

10.3 That, the Hon'ble Court may kindly allow other relief

as deem fit and proper.”

3. Learned counsel for the petitioner would submit that, during

said period i.e. 12-6-2011 to 7-4-2014, he was posted as Assistant Sub

Inspector (Mechanic) in police line, but under oral instruction of respondent

No. 4/5, he performed duty at the petrol pump, he was not in-charge of the

petrol pump, rather, respondent No. 4/5 was in-charge of the petrol pump

and under his oral instruction, sometimes, he used to look after the work of

transaction of petrol pump, that too, under supervision of respondent No.

4/5, else, at that period, his main duty was to look after mechanical fault of

the petrol pump. Even otherwise, since he was not acquainted with the

accountancy work or having account training, therefore, he could not have

performed the duty of maintaining account book of transaction of petrol

pump. In the month of April, 2014, he was removed from petrol pump and

under oral instruction, he was performing his duty at Police Line, M.T.

branch. Learned counsel for the petitioner further submits that, since initial

explanation, the petitioner was showing his innocence and he has

specifically stated that, neither he has committed any theft nor any

wrongful act in the petrol pump. Despite that, he was compelled to deposit

huge amount, as such, he has deposited Rs. 8 lacs under threat and

pressure as respondent authorities did not consider his explanation. It is

further submitted that without conducting any departmental inquiry or any

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criminal proceeding, petitioner has been leveled allegation of

embezzlement of more than one crore rupees and has been compelled to

make adjustment of amount vide Annexure P-1 and P-2. Learned counsel

further submitted that, even as per the preliminary inquiry report (Annexure

R-4), the petitioner has denied allegation of said embezzlement in his

deposition, despite that, without any inquiry or criminal proceeding,

impugned order of recovery has been made, huge amount has been

recovered from the petitioner and his retiral dues have also been withheld.

Though after the order passed by this Court on 30-8-2024, 50% amount

of pension, gratuity and leave encashment has been paid to the petitioner.

3.1 Learned counsel for the petitioner further submitted that

without any proper inquiry or criminal proceeding, making huge recovery

from him and withholding his retiral dues are against the CG Civil Services

(Classification, Control and Appeal) Rules, 1966 (henceforth, referred to as

‘CCA Rules’) and CG Civil Services (Pension), Rules, 1976 (henceforth,

referred to ‘Rules, 1976’), hence it is prayed that, the reliefs sought for by

the petitioner in both the writ petitions may be granted.

4. Respondents No. 1 to 4 have filed their reply, stating inter alia

that, the petitioner took charge of Shourya (Police) Petrol Pump, Raipur on

11-6-2011 and worked there from 12-6-2011 to 7-4-2014. On physical

verification of transaction/accounts of petrol pump conducted by

respondent No. 4/5 on 23-3-2014 and 8-4-2014, deficiency of Rs.

30,47,345.91 and Rs. 27,23,659.00/- respectively was found. Upon

explanation being sought for adjustment of the aforesaid amount, the

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petitioner gave his consent vide Annexure R-2 dated 27-10-2015, to

deposit the amount in installment of Rs. 10,000/- per month and he himself

deposited Rs. 8,60,000 in installments, which itself establish the fact that

he has embezzled the amount.

4.1 Learned counsel for respondents No. 1 to 4, referring to their

reply, would submit that, conduct of petitioner with regard to

embezzlement of huge amount was reported to respondent No. 3,

thereafter, as per direction of respondent No. 3, accounts of the petrol

pump were got audited from chartered accountant firm namely VBM and

Company, Raipur and in that audit of financial year 2011-12 to 2014-15,

when the petitioner was in-charge of the petrol pump, total deficit amount

of Rs. 1,01,26,623.34/- was reported by the said Chartered Accountant

firm, against which, a sum of Rs. 8,20,000/- was deposited by the

petitioner. As per direction of respondent No. 3, a preliminary inquiry was

conducted by the Inquiry Officer/Dy. Superintendent of Police, Police Head

Quarter, Raipur and in that inquiry, statement of petitioner and other

employees of petrol pump were recorded. After inquiry, inquiring officer

submitted preliminary inquiry report vide Annexure R-4, wherein the

petitioner was found guilty of embezzlement of government fund of Rs.

80,23,666.34/-. Therefore, contention of learned counsel for the petitioner

is incorrect that, without any inquiry or opportunity being provided to the

petitioner, said recovery order has been made and retiral dues have been

withheld. The impugned order of recovery of deficit amount from the

petitioner is minor penalty under Rule 10 of the CCA Rules, therefore,

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there is no illegality or infirmity in issuing the impugned recovery order

and withholding retiral dues of the petitioner. As such, both the petitions

are liable to be rejected.

5. Respondent No. 5 has not filed his reply. He has been made

party in person as well as by virtue of post (the then) as respondents No.

4 & 5.

6. I have heard learned counsel for the parties and perused the

material available on record.

7. As per reply and contention of respondents No. 1 to 4, the

petitioner was in-charge of the petrol pump from 12-6-2011 to 7-4-2014

and during this period, he was also responsible for maintaining account

books up-to-date, but as per allegation, the petitioner embezzled amount

of Rs. 1,01,26,623.34/-. This allegation itself shows that, huge transactions

were being made at the petrol pump, but as per contention of the

petitioner, he is not aware at all about the transaction of petrol pump,

under instruction of respondent No. 4/5 and under pressure, he was

performing duty at petrol pump. To prove liability of petitioner that he was

in-charge of petrol pump for said period, the order pertaining to making

him in-charge of petrol pump ought to have been filed, but no such order

has been filed, rather, as per the petitioner, he performed his duty there

under oral instruction only, whereas in-charge of petrol pump was

respondent No. 4/5. As such, without having any valid document to shift

liability upon the petitioner for said embezzlement of huge amount, seems

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to be illegal to fasten liability upon the petitioner, particularly when, since

his initial explanation, petitioner’s stand is that, he is innocent and without

having any experience of said work, he was orally entrusted duty at the

petrol pump and he has not committed any theft or any wrong act.

8. Preliminary inquiry report (Annexure R-4) dated 29-01-2018

shows that, it (preliminary inquiry report) was submitted by the Dy.

Superintendent of Police, Police Head Quarter, Raipur, before Sr.

Superintendent of Police, Distt. Raipur on 29-1-2018, wherein petitioner

has been held liable for embezzlement of Rs. 1,01,26,623.34/- while his

posting at petrol pump from 12-6-2011 to 7-4-2014. But in this inquiry

report also, it has been mentioned that “Petitioner has stated that he has

not embezzled Rs. 80,49,387.34/-, and he has denied the allegation

(charge).” In this preliminary inquiry repport, the officer holding liable the

petitioner for said period and other police officials for embezzlement of

other period, recommended disciplinary action and legal proceedings

against them. But as per contention of learned counsel for respondents, no

departmental inquiry or any other legal proceeding like criminal proceeding

etc. has been initiated or conducted or pending against petitioner.

9. In view of above discussion, it is evidently clear that, without

any inquiry or criminal proceeding and even prior to obtaining any

preliminary inquiry report, impugned show cause notice (Annexure P-1)

dated 11-9-2015 and recovery order (Annexure P-2) dated 16-11-2025

have been issued by the respondent No. 3/ Superintendent of Police,

Raipur and directed for adjustment/recovery of huge amount of Rs.

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80,49,387.34/- from the salary of petitioner only at the behest of said

consent (Annexure R-2) dated 27-10-2025 submitted by the petitioner,

whereas contents of Annexure R-2 itself shows that, the petitioner has not

unequivocally admitted the allegation, rather he has denied the allegation

and stated that he has not committed any mistake. Having considered

such ambiguous admission of the petitioner and further considering his

oral explanation, in which, he has stated that he has not committed any

theft or any wrong in the petrol pump, such recovery order ought to have

been made after conducting due departmental inquiry and also other legal

proceeding, as has been recommended by the inquiry officer in belated

preliminary inquiry report (Annexure R-4) dated 29-1-2018.

10. It is the contention of respondents No. 1 to 4 that the

impugned order of recovery of deficit amount from the petitioner is a minor

penalty under Rule 10 of the CCA Rules. Rule 10(i) to (iv) of the CCA

Rules provides for minor penalty, which states as under :-

“10. Penalties. - The following penalties may, for good and

sufficient reasons and as hereinafter provided, be imposed on a

Government servant, namely:-

Minor penalties:-

(i) Censure;

(ii) Withholding of his promotion;

(iii) recovery from his pay of the whole or part of any pecuniary

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loss caused by him to the Government by negligence or breach

of order:

(iv) withholding of increments of pay or stagnation allowance;”

11. Rule 16 of the CCA Rules provides procedure for imposing

minor penalties, which states as under :-

“16. Procedure for imposing minor penalties .-

(1) Subject to the provisions of sub-rule (3) of Rule 15, no

order imposing on a Government servant any of the

penalties specified in clauses (i) to (iv) of Rule 10 and Rule

11 shall be made except after-

(a) informing the Government servant in writing of the

proposal to take action against him and of the imputations

of misconduct or misbehaviour on which it is proposed to

be taken, and giving him a reasonable opportunity of

making such representation as he may wish to make

against the proposal.

(b) holding an inquiry in the manner laid down in subrules

(3) to (23) of Rule 14, in every case in which the

disciplinary authority is of the opinion that such inquiry is

necessary:

(c) taking the representation, if any, submitted by the

Government servant under clause (a) and the record of

inquiry, if any, held under clause (b) into consideration:

(d) recording a finding on each imputation of misconduct or

misbehaviour: and

(e) consulting the commission where such consultation is

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necessary.

(1-a) xxx xxx xxx

(2) The record of the proceedings in such cases shall

include-

(i) a copy of the intimation to the Government servant of

the proposal to take action against him;

(ii) a copy of the statement of imputation of misconduct or

misbehaviour delivered to him:

(iii) his representation, if any:

(iv) the evidence produced during the inquiry:

(v) the advice of the commission, if any;

(vi) the findings on each imputation of misconduct or

misbehaviour; and

(vii) the orders on the case together with the reasons

therefor."

12. Careful perusal of the aforesaid rule would show that, the

punishment of recovery from salary, whole or part, of any pecuniary loss

caused by the employee to the government, is minor penalty, and can be

imposed on any government servant only after informing him under Rule

16(1)(a) of the CCA Rules, in writing, of the proposal to take action against

him and of the imputations of misconduct or misbehavior, on which, it is

proposed to be taken, and after giving him a reasonable opportunity to

make such representation as he may wish to make against the proposal.

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Rule 16(1)(a) of the CCA Rules prohibits imposition of any penalty without

serving a charge sheet on the delinquent and giving him reasonable

opportunity to defend.

13. The M.P. High Court in the matter of Ku. Shailja R. Jeswani

v. State of M.P. and others [2000 (3) MPHT 85 (NOC)] has held that

notice cannot be construed as a proposal to take action against the

petitioner with regard to imputation of misconduct and quashed the order

imposing minor penalty.

14. In the matter of Lal Audhraj Singh Lal Rampratap Singh v.

State of Madhya Pradesh (1967 MPLJ 528), a Division Bench of the

Madhya Pradesh High Court has clearly held that merely giving a notice to

the Government servant saying that he is guilty of certain lapse or

misconduct and asking him to show cause against the punishment of

withholding of increments is not sufficient. It was observed in para 5 as

under:-

"5. The petitioner's grievance that he was not given

an effective opportunity of showing cause against

the proposed punishment of withholding of his

increments is also substantial. Under rule 55-A of

the M.P. Civil Services (Classification, Control and

Appeal) Rules, which were in force before 13th

August 1965, such a punishment could be imposed

on any Government servant only after giving him an

adequate opportunity of making a representation

that he desired to make and after taking into

consideration such representation, if made. So also,

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under rule 13(1)(a) of the M.P. Civil Services

(Classification, Control and Appeal) Rules, 1965, the

punishment of withholding of increment can be

imposed only after the Government servant is

informed in writing of the proposal to take this action

against him and of the allegations on which it is

proposed to be taken and given an opportunity to

make any representation he may wish to make and

after taking into consideration such representation, if

made. No doubt, it is not necessary to hold a

departmental enquiry for imposing on a Government

servant the punishment of withholding an increment.

But he is clearly entitled to an effective opportunity

of meeting the allegations on which it is proposed to

withhold his increment. Merely giving a notice to the

Government servant saying that he is guilty of

certain lapse or misconduct and asking him to show

cause against the punishment of withholding of

increments is not sufficient. The Government servant

must be informed of the allegations against him and

the material on which they are based. In the present

case, the second notice, which was issued to the

applicant on 15th April 1963, was, as stated in the

return itself, on the basis of report of enquiry which

was held in July 1954. A copy of that report should

have been supplied to the petitioner for enabling him

to meet the charge of negligence levelled against

him and to show that he did not deserve any

punishment."

15. Clause (b) of sub-rule (1) of Rule 16 of the Rules of 1966

confers discretion upon the disciplinary authority to decide whether an

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enquiry is to be conducted. The disciplinary authority must apply its mind

to the facts and circumstances of the case as disclosed in the

representation of the employee and other available material and give a

reasoned finding whether an enquiry is necessary or not. In absence of

such finding, order imposing penalty would be invalid unless of course, it

can show that omission has not resulted in prejudice to the employee.

16. Not only this, the M.P. High Court in the matter of Union of

India and another v. C.P. Singh (2004 (II) MPJR 252), taking into

consideration the decision of the Supreme Court on this point and further

taking into consideration the decisions of the Supreme Court in the matters

of D.K. Bharadwaj v. Union of India [(2001) 9 SCC 180] and Food

Corporation of India v. A. Prahalada Rao [(2001) 1 SCC 165],

summarised the legal position for imposing minor penalty in paragraphs 16

and 17 as under:-

"16. The position as can be gathered from the

Rules and the aforesaid decisions can be

summarised thus:

(i) In a summary inquiry, a show cause notice is

issued informing the employee about the proposal

to take disciplinary action against him and of the

imputations of misconduct or misbehaviour on

which such action is proposed to be taken. The

employee is given an opportunity of making a

representation against the proposal. The

Disciplinary Authority considers the records and

the representation and records of findings on

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each of the imputations of misconduct.

(ii) In a regular inquiry, the Disciplinary Authority

draws up the articles of charge and it is served on

the employee with a statement of imputation of

misconduct, list of witnesses and list of

documents relied on by the Department. The

Disciplinary Authority calls upon the employee to

submit his defence in writing. On considering the

defence; the Disciplinary Authority considers the

same and decides whether the inquiry should be

proceeded with, or the charges are to be dropped.

If he decides to proceed with the enquiry, normally

an Inquiring Authority is appointed unless he

decides to hold the inquiry himself. A Presenting

Officer is appointed to present the case. The

employee is permitted to take the assistance of a

co-employee or others as provided in the rules.

An inquiry is held where the evidence is recorded

in the presence of the employee. The employee is

permitted to inspect the documents relied upon by

the employer. The employee is also permitted to

call for other documents in the possession of the

Management which are in his favour. The

delinquent employee is given an opportunity to

rebut the evidence of the management by cross-

examining the management witnesses and by

producing his evidence both documentary and

oral. Arguments-written and/or oral, are

received/heard. The delinquent employee is given

full opportunity to put forth his case. Therefore,

the Inquiring Authority submits his report. The

copy of the report is furnished to the employee

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and his representation is received. Thereafter the

Disciplinary Authority considers all the material

and passes appropriate orders. The detailed

procedure for such inquiries is contained in sub-

rules (6) to (25) of Rule 9 of the Railway Servants

(Discipline & Appeal) Rules, 1968 corresponding

to sub-rules (3) to (23) of Rule 14 of the Central

Civil Services (CCA) Rules, 1965 and M.P. Civil

Services (CCA) Rules, 1966.

(iii) The normal rule, except where the employee

admits guilt, is to hold a regular inquiry. But where

the penalty proposed is a 'minor penalty', then the

Rules give the Disciplinary Authority a discretion

to dispense with a regular inquiry for reasons to

be recorded by him, and hold only a summary

enquiry.

(iv) Though the Rules contemplate imposing a

minor penalty without holding a regular enquiry,

where the Disciplinary Authority is of the opinion

that such enquiry is not necessary, such decision

not to hold an enquiry can be only for valid

reasons, recorded in writing. Dispensation with a

regular enquiry where minor penalty is proposed,

should be in cases which do not in the very nature

of things require an enquiry, for example, (a)

cases of unauthorised absence where absence is

admitted but some explanation is given for the

absence; (b) non-compliance with or breach of

lawful orders of official superiors where such

breach is admitted but it is contended that it is not

willful breach; (c) where the nature of charge is so

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simple that it can easily be inferred from

undisputed or admitted documents; or (d) where it

is not practicable to hold a regular enquiry.

(v) But, even where the penalty proposed is

categorised as minor penalty, if the penalty

involves withholding increments of pay which is

likely to affect adversely the amount of pension (or

special contribution to provident fund payable to

the employee), or withholding increments of pay

for a period exceeding three year or withholding

increments of pay with cumulative effect for any

period, then it is incumbent upon the disciplinary

authority to hold a regular inquiry.

(vi) Position before decision in FCI: Where the

charges are factual and the charges are denied

by the employee or when the employee requests

for an inquiry or an opportunity to put forth the

case, the discretion of the Disciplinary Authority is

virtually taken away and it is imperative to hold a

regular inquiry.

Position after decision in FCI: Where the Rules

give a discretion to the Disciplinary Authority to

either hold a summary enquiry or regular enquiry,

it is not possible to say that the Disciplinary

Authority should direct only a regular enquiry,

when an employee denies the charge or requests

for an inquiry. Even in such cases, the Disciplinary

Authority has the discretion to decide, for reasons

to be recorded, whether a regular enquiry should

be held or not. If he decides not to hold a regular

enquiry and proceeds to decide the matter

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summarily, the employee can always challenge

the minor punishment imposed, on the ground

that the decision not to hold a regular enquiry was

an arbitrary decision. In that event, the Court or

Tribunal will in exercise of power of judicial review,

examine whether the decision of the Disciplinary

Authority not to hold an enquiry was arbitrary. If

the Court/Tribunal holds that the decision was

arbitrary, then such decision not to hold an

enquiry and the consequential imposition of

punishment will be quashed. If the Court/Tribunal

holds that the decision was not arbitrary, then the

imposition of minor penalty will stand.

17. It is also possible to read the decisions in

Bharadwaj and FCI harmoniously, if Bharadwaj

is read as stating a general principle, without

reference to any specific rules, that it is incumbent

upon the Disciplinary Authority to hold a regular

enquiry, even for imposing a minor penalty, if the

charge is factual and the charge is denied by the

employee. On the other hand, the decision in FCI

holding that the Disciplinary Authority has the

discretion to dispense with a regular enquiry, even

where the charge is factual and the employee

denies the charge, is with reference to the specific

provisions of a Rule vesting such discretion."

17. Reverting to the facts of the instant case in the light of the

aforesaid proposition, it is quite vivid that in the instant case, only on the

basis of order Annexure P-1 dated 11-9-2015, seeking clarification with

regard to deficit of amount of the petrol pump and directing him for

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adjustment of the amount and in pursuance thereof, consent by denying

allegation Annexure R-2 dated 27-10-2015 was submitted by the

petitioner. The letter Annexure P-1 cannot be construed as a proposal to

take action against the petitioner with regard to imputation of misconduct,

as provided in Section 16(a) of the CCA Rules and only in the light of said

consent in form of denial of allegation (Annexure R-2) submitted by the

petitioner, the impugned order Annexure R-2 dated 16-11-2015 has been

passed by the respondent No. 3/Superintendent of Police, Raipur holding

him guilty of embezzlement of Rs. 80,49,387.34/- and directed for

adjustment of the same by deducting Rs. 10,000/- per month from the

salary of petitioner, which is contrary to the principle of law laid down by

the Hon’ble MP High Court in the case of Lal Audhraj Singh Lal

Rampratap Singh (supra) and C.P. Singh’s case (supra), as show cause

notice/ adjustment notice Annexure P-1 dated 11-9-2015 would not amount

to proposal to take action against the delinquent and it would also not

amount to serving of imputation of misconduct or misbehaviour on which

action is proposed to be taken under Rule 16(1)(a) of the CCA Rules and

there is complete non -compliance of Rule 16(1)(a) of the said Rules, as

no opinion has been recorded by the disciplinary authority that, as to why,

inquiry is not necessary, taking alleged consent dated 27-10-2015

(Annexure R-2) submitted by the petitioner under clause (a) and the record

of inquiry, if any, held under Clause (b), into consideration. Though in

instant case, preliminary inquiry was conducted and report dated 29-1-

2018 (Annexure R-4) was submitted, but as per that inquiry report itself,

the petitioner has denied the allegation of embezzlement of said amount.

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Despite that, the impugned recovery order (Annexure P-2) dated 16-11-

2015 has been passed by the respondent no. 3, which is in teeth of the

provisions contained in Rule 16(1) of the CCA Rules, therefore, order

Annexure P-1 dated 11-9-2015 and order Annexure P-2 dated 16-11-2025

issued by the respondent No. 3 are quashed.

18. So far as withholding of pension, and retiral dues i.e. gratuity

etc. is concerned, it is settled preposition of law that, right to receive

pension by the employee has been recognized by Hon’ble Apex Court as

right to property under Article 300A of the Constitution of India. The

Supreme Court in the case of Deokinandan Prasad Vs. State of Bihar

[1971) 2 SCC 330], while considering various judgments, has held in para

33 as under :-

“33. Having due regard to the above decisions, we are

of the opinion that the right of the petitioner to receive

pension is property under Article 31(1) and by a mere

executive order the State had no power to withhold the

same. Similarly, the said claim is also property under

Article 19(1)(f) and it is not saved by sub-article (5) of

Article 19. Therefore, it follows that the order, dated June

12, 1968, denying the petitioner right to receive pension

affects the fundamental right of the petitioner under

Articles 19(1)(f) and 31(1) of the Constitution, and as

such the writ petition under Article 32 is maintainable. It

may be that under the Pension Act (Act 23 of 1871) there

is a bar against a civil court entertaining any suit relating

to the matters mentioned therein. That does not stand in

the way of writ of mandamus being issued to the State to

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property consider the claim of the petitioner for payment

of pension according to law.”

19. In the case of State of W.B. v. Haresh C. Banerjee [(2006) 7

SCC 651], Hon’ble Supreme Court has recognized that, even when after

repealing of Article 19(1)(f) and Article 31(1) of the Constitution of India,

vide Constitution (Forty – fourth Amendment) Act, 1978 with effect from 20-

6-1979, the right to property was no longer remained a fundamental right,

it was still constitutional right as provided in Article 300A of the

Constitution of India. Right to receive pension was treated as right to

property.

20. For withholding pension, Rule 9 of the CG Civil Services

(Pension) Rules, 1976 (henceforth, referred to as ‘Rules, 1976’) is

applicable. Rule 9(4) speaks as under :-

"9. Right of Governor to withhold or withdraw

pension : (4) In the case of Government servant who

has retired on attaining the age of superannuation or

otherwise and against whom any departmental or

judicial proceedings are instituted or where

departmental proceedings are continued under sub-

rule (2), a provisional pension and death-cum-

retirement gratuity as provided in [Rule 64] shall be

sanctioned:

[Provided that, where pension has already been finally

sanctioned to a Government servant prior to institution

of departmental proceedings, the Governor, may, by

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order in writing, withhold, with effect from the date of

institution of such departmental proceedings, fifty

percent of the pension so sanctioned subject, however,

that the pension payable after such withholding is not

reduced to less than [the minimum pension as

determined by the Government from time to time]:

Provided further that, where departmental proceedings

have been instituted prior to the 25th October, 1978, the

first proviso shall have effect as if for the words 'with effect

from the date of institution of such proceedings' the words

'with effect from a date not later than thirty days from the

date aforementioned’ had been substituted:

Provided also that, -

(a) if the departmental proceedings are not completed

within a period of one year from the date of institution

thereof, fifty percent of the pension withheld shall stand

restored on the expiration of the aforesaid period of one

year;

(b) if the departmental proceedings are not completed

within a period of two years from the date of institution, the

entire amount of pension so withheld stand restored on the

expiration of the aforesaid period of two years; and

(c) if in the departmental proceedings final order is passed

to withhold or withdraw the pension or any recovery is

ordered, the order shall be deemed to take effect from the

date of the institution of departmental proceedings and the

amount of pension since withheld shall be adjusted in

terms of the final order subject to the limit specified in sub-

rule (2) of Rule 43.”

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21. So far as gratuity is concerned, Rule 64 of the Rule, 1976

provides as under :-

“64. Provisional pension where departmental or judicial

proceedings may be pending-

(1) (a) and (b) xxx xxx xxx

(c) No gratuity shall be paid to the Government

servant until the conclusion of the departmental or

judicial proceedings and issue of final orders

thereon:

Provided that where departmental

proceedings have been instituted under Rule 16

of the Chhattisgarh Civil Services (Classification,

Control and Appeal) Rules, 1966, for imposing

any of the penalties specified in clauses (i), (ii)

and (iv) of Rule 10 of the said rules, the payment

of provisional gratuity to the extent of 90% of the

gratuities admissible under the rules shall also be

authorised to be paid to the government servant.

(2) xxx XXX XXX."

22. Admittedly, in instant case, as has been observed

hereinabove, neither any departmental proceeding nor any judicial

proceeding (criminal case) was initiated or pending against the

petitioner on the date of his retirement i.e. 29-2-2024, therefore,

withholding of pension and gratuity of the petitioner, is not found to

26

be valid in view of above judgment rendered by the Apex Court and

further in view of Rule 9 and Rule 64 of the Rules, 1976. Therefore,

the petitioner is entitled for full pension and gratuity payable to him

on the date of his retirement. In that view of the matter, the

respondents are also unjustified in withholding the amount of leave

encashment, GPF, GIS etc. of the petitioner, which otherwise he is

entitled for.

23. In view of above discussion, both the petitions are

allowed. Show cause notice/adjustment notice dated 11-9-2015

(Annexure P-1 in WPS No. 8586/2019) and recovery order dated 16-

11-2015 (Annexure P-2 in WPS No. 8586/2019) issued by the

respondent No. 3/Superintendent of Police, Raipur, District Raipur

are quashed. Respondents are directed to pay to the petitioner the

amount of full pension and all retiral dues i.e. gratuity, leave

encashment, GPF and GIS etc. within a period of 45 days from today

in accordance with law. Petitioner is also entitled to get interest at the

rate of 8% per annum from the date of his retirement till date of actual

payment of outstanding amount. Respondents are further directed to

refund to the petitioner the amount recovered from him against said

show cause notice/adjustment notice Annexure P-1 and recovery

order Annexure P-2 along with interest at the rate of 8% per annum

till its final payment.

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24. It is made clear that, this order will not preclude the

respondent authorities to proceed against the petitioner in

accordance with law.

25. Accordingly, both the petitions are allowed to the above

extent.

26. There shall be no order as to cost(s).

Sd/-

(Naresh Kumar Chandravanshi)

Judge

Pathak/-