ORDER
N.G. Nandi, J.
1. A Government servant, who sought voluntary retirement in January 1980 challenges Notice No.5110/DO-(2)-881-952 dated 2.4.1985 seeking to forfeit 3/4th amounts of pension of the Petitioner being arbitrary, illegal, with- out jurisdiction and unconstitutional. The petitioner also prays for the release of pay and regular pension as admissible under the Rules; release and payment of death-cum-retirement gratuity; release and payment of sal- ary, special pay, HRA, CCA and other allowances admissible at a cadre post in the senior scale of IAS between 27.6.1978 to 12.1.1980; payment of full pay and allowances admissible on the post of Chairman-cum-Managing Direc- tor, DSIDC between 11.4.1977 to 26.6.1978; release and payment of missing credits in GPF Account No.GAU-8762 and the exemplary compensation for the alleged continuous harassment caused to the petitioner.
2. On 17.11.1950 the petitioner was appointed to U.P. Civil Service (UPCS) on the basis of competitive examination and posted on probation. On 7.11.1952 the petitioner was confirmed in UPCS on due date and remained in service of the State Government till 12.6.1964. In May 1964 the petitioner was selected for deputation to Government of India (Ministry of Home Af- fairs) and appointed to various assignments under Ministry of Home Affairs, Ministry of Commerce, Department of Food, Central Government, etc.; that on 14.8.1972 the petitioner was appointed as Managing Director, DSIDC (re- spondent No.4) initially in scale equivalent to Selection in Grade of IAS; that on 23.10.1972 the petitioner was notified under Companies Act, as the Managing Director of DSIDC. In December 1975 the petitioner was appointed Chairman-cum-Managing Director, DSIDC in the scale of Rs.2500-3000 equiva- lent to Schedule C post; that in April 1975, the petitioner was decorated “LAGHU UDYOG RATNA” by the President of India for outstanding service to the cause of development of Small Industries and Entrerpreneurship Develop- ment, particularly under Half a Million Jobs Programme; that the petitioner in March 1973 exercised his option for being permanently absorbed in DSIDC and the petitioner sent his resignation letter from the services of UP Government in accordance with the proforma resignation, copy send by the UP Government. The same was sent by DSIDC to the State of U.P. The State of U.P. did not recall the petitioner nor did they send any intimation terminating the deputation and the career of the petitioner remained in a limbo inasmuch as the DSIDC had also conveyed to the State Government that leave and pensioner contribution as also GPF contribution in respect of the petitioner was being discontinued with effect from December, 1974 in view of impending absorption of the petitioner in DSIDC. As nothing transpired further, he continued to remain in DSIDC as its Chief Executive during the entire period; that on Sunday, the 10th April, 1977 the Lt.Governor of Delhi issued a Notification stating that the petitioner had proceeded on leave w.e.f. 11.4.97. This was done by the Lt.Governor under the instruc- tions of the Home Ministry without taking in confidence or even informing the State Government of U.P. in this behalf. In the mean time, the peti- tioner was due for being placed in the select list of State Government Officers for Promotion to IAS in accordance with the IAS (Appointment by Promotion) Regulations, 1955; that the petitioner’s name had already been included in the list of December 1976/1977; that the name of the petitioner appeared at Serial No.2 in the letter dated 10.3.1978 from the State Govt. of U.P. to the Department of Personnel and Administration Reforms, Ministry of Home Affairs, New Delhi, which was in connection with five officers out of the select list, who were not appointed to a Senior IAS Cadre post and thus, in respect of these officers, the said Government was supposed to furnish a certificate that had such officers not been on a non-cadre post, they would have been appointed to a senior IAS scale cadre post under the State Govt; that another certificate has also been annexed against the name of the petitioner in the said letter; that the petitioner being senior to Shri Chitrangad Singh, whose name has been included in the select list of December 1977, the petitioner should have been appointed to the cadre post of IAS prior to Chitrangad Singh as the petitioner was given provisional seniority of the year 1973 in the IAS; that the gradation list demonstrated the name of the petitioner at Serial No.81 whereas the name of Chitrangad Singh appears at Serial No.89; that in all fairness to the petitioner, his name should have appeared in between serial No.83 and 84 in the Select List of 1977; that in June 1976 State Government of U.P. posted the petitioner as officer on special duty at New Delhi directing him to join the post immediately; that the petitioner reported for duty on 27.6.1978 under protest; that no terms of posts of OSD were stipulated either in the Wire- less Message or even thereafter for more than one year; that in sheer disgust the petitioner had to proceed on leave w.e.f. 20.11.1978 after being harassed, humiliated and having been continuously kept in a state of uncertainty, inasmuch as neither the petitioner was provided any office space nor had been paid any salary nor the terms of his appointment were conveyed to him.; that the indifferent attitude of the respondents caused mental strain on the health of the petitioner, who fell sick and the period of his sickness lasted 297 days; that in September 1979 vide telex message of the State Govt of UP, the petitioner was posted as Director, Manpower Planning, Govt of U.P. and was directed to join the post immediately; that the petitioner accordingly proceeded to Lucknow to join the charge of new post but when the petitioner reported for duty, he was once again kept on forced waiting till 12.10.1979; that the petitioner was made to face an extremely humiliating situation as long as the petitioner remained at new place of posting i.e. at Lucknow that he was not provided any residential accommodation and had no funds to eke out his living at Lucknow and that the petitioner had per force to submit his letter of conditional voluntary retirement under F.R.56 on 12.10.1979 stating therein that it was clear that the Government was not interested to retain the petitioner in service as evidenced by series of events appearing in the past. The petitioner was not conveyed the decision of the Government in regard to the acceptance of his notice of voluntary retirement within the stipulated period of three months. It was only after about an year that the Government vide letter dated 17.12.1980 conveyed to the petitioner that his notice for voluntary retirement had been accepted w.e.f. 12.1.1980; that in between the State Government arbitrarily sought the period between 11.9.1979 to 12.10.1979 and 12.10.1979 to 12.1.1980 to be treated as period spent on leave admissi- ble. The petitioner protested against this high-handed action of the re- spondent, clarifying that the petitioner had reported for duty on expiry of medical leave and thereafter reported to join the post of Director, Man Power Planning and thus, he had to be deemed on duty for the entire intervening period and it was no fault of the petitioner in case the respondents failed to provide the office accommodation and kept the petitioner on forced waiting; that though respondents were bound to fix provisional/ regular pension of the petitioner forthwith consequent upon the acceptance of his voluntary retirement no action was taken by the respondent in this behalf; that at the relevant time, the petitioner was under no cloud of facing any disciplinary proceeding or any judicial proceeding and no such departmental or judicial proceedings were even contemplated against the petitioner, which could form legitimate basis for not paying regular pen- sion to the petitioner; that even in such cases, where a retiree is facing disciplinary/judicial proceedings, provisional pension is always immediate- ly fixed and continues to remain payable to him till the conclusion of the disciplinary/judicial proceedings; that vide letter dated 1/8.4.1982, the Accountant General, U.P. wrote to the State Government raising certain queries to be answered by the State Govt. so that the pension of the peti- tioner could be fixed. There was an endorsement to the effect that an amount of Rs.5000/- being motor car advance was outstanding against his name and this amount was sought to be recovered alongwith interest; that the petitioner, at no point of time, applied for or obtained any motor car advance of the sum of Rs.5000/- or any other amount and the perfunctory manner in which the A.G., U.P.directed that the said amount be recovered from the petitioner demonstrates the indifferent and casual approach of the respondents towards the retirees; that during the period of five years, the petitioner relentlessly pursued his case of pensionery dues and other service benefits as had accrued to him but the respondents turned a deaf ear to the petitioner and not a single penny was paid to the petitioner; that after 6.4.1978 which was the date from which officers juniors to the petitioner put in the Select List of IAS were appointed to IAS, the peti- tioner is deemed to be a member of IAS and entitled to all benefits as admissible to an officer of IAS including retirement/retrial benefits and all such benefits have to be paid to him in accordance with the rules and regulations governing the conditions of All India Service Officers; that instead of settling the dues of the petitioner, the State Govt of U.P. vide their letter dated 2.8.1985 called upon the petitioner to show cause within one month of the receipt of such notice as to why his 3/4 pension be not curtailed under Article 470(b) of the Civil Services Regulations as it had been tentatively decided by the Government on the ground of the CBI report in respect of certain events imputing lapses on his part during petitioner’s tenure in DSIDC during the period 1974-75 and stating further that on the whole his service had not been found thoroughly satisfactory relying on certain stale matters relating to antiquity and which were no nest; that the proposed action of the respondent was in respect of events, which occurred more than four years prior to the date of retirement of the petitioner and as provided in the Rules, it was not open to the respondent to have issued a show cause notice in respect of such events and stale matters; that the petitioner was not given adequate time to furnish his reply and to clarify his position even though it took nine years for CBI to investigate the charges and it took another three years for the State Government to furnish to the petitioner some extracts of the same CBI report, even then the petitioner submitted his reply within the stipulated time of 15 days; that the petitioner obtained a copy of the CBI report, which was denied to the petitioner by the State Government; that in the CBI report two persons were charge-sheeted under Sections 120B and 420 IPC; that the petitioner was never arraigned as an accused in the said case and the petitioner was at the top in the list of prosecution witnesses and while framing charge the court heavily relied on the statement of the petitioner; that the other points raised in the said show cause notice are not sustainable, stale, nonest and against the prescribed Rules and Govern- ment Policy Circulars, Government Orders, Nazul Manual etc. and washed out otherwise by acts of the State Government in giving select and unprecedent- ed assignments and promotions to the petitioner soon after some of the said adverse commentaries were made and no refuge can be taken by the respondent on these matters for denying to the petitioner his legitimate right to the pensionery benefits and dues.
3. Respondent No. 4-DSIDC filed counter-affidavit admitting that the petitioner, an officer of U.P. cadre was appointed as Managing Director of respondent-Corporation w.e.f. 14.8.1972 and subsequently he was appointed as the Chairman-cum- Managing Director of the respondent- Corporation vide communication dated 9.12.1974; that thereafter Mr.Ashok Pradhan, IAS was appointed Managing Director of respondent-Corporation in pursuance of the notification dated 10/11.4.1997, whereupon the petitioner proceeded on leave; that the petitioner sought permanent absorption in the respondent-Corporation and tendered resignation from the U.P. Civil Service vide letter dated 27.9.1974 to be effective from the date of acceptance of the resignation. His option for permanent absorption in the respondent-Corporation was forwarded by the Chief Secretary, Delhi Administration to the Secretary of U.P. Govt vide letter dated 15.3.1973; that the petitioner proceeded on leave on 10/11.4.1977. It is denied that the respondent conveyed to the State Govt that leave and pensionery contribution as also GPF contribution in respect of the peti- tioner was being continued w.e.f. December 1974 in view of the impending absorption of the petitioner in Public Sector Organiza- tion-respondent DSIDC; that Govt of U.P. vide its letter dated 22.6.1977 conveyed rejection of the request of the petitioner for perma- nent absorption in respondent-Corporation. Thereafter Services Department, Govt. of Delhi, vide its order dated 26.11.77 placed the services of the petitioner at the disposal of the U.P. Government; that the peti- tioner was paid salary upto 31.7.1977; that after his repatriation from the respondent- Corporation, the petitioner withdrew his contribu- tion from P.F. along with employer’s share; that the answering re- spondent approached the Service Department of respondent No.1 with a request to examine the matter and advice suitably for further course of action in this matter vide its letter dated 23.10.1997; that as on today, nothing has been heard in the matter from the Service De- partment of respondent No.1.
4. Respondent No. 5-State of Uttar Pradesh, vide its counter-affidavit disputed the territorial jurisdiction of this court to entertain this writ petition. It is further contended by respondent No. 5 that petitioner’s services were put at the disposal of DSIDC; that the petitioner voluntarily retired from the Provincial Civil Service (PCS) on 12.1.1980; that his retiral benefits will be considered from that date in consonance with the Rules thereof; that the petitioner was posted as Officer on Special Duty in the office of the Resident Commissioner, U.P. at New Delhi as the Member of the PCS; that there is no record to suggest that the petitioner was kept on forced waiting till 12.10.1979; that the answering- respondent has taken all appropriate steps regarding voluntary resignation of the petitioner; that the respondent got regularized petitioner’s service for the period mentioned to his advantage; that the petitioner’s pension could not be fixed in the absence of proper and relevant record submitted by the peti- tioner; that the Accountant General (III), U.P. G.A. (Pension and Audit) Department was informed that no pension paper in the required proforma was received and in the absence of the said paper no further action could be taken; that a letter dated 25.2.1984 was also sent to the petitioner for necessary action on his part. Therefore, the petitioner’s allegation re- garding the non-action of the answering defendant is baseless; that the petitioner voluntarily retired from PCS (Executive Branch) on 12.1.1980, therefore, the retirement benefits available to an IAS Officer can not be given to him; that proper Rules and Procedures were followed in issuing the show-cause notice dated 2.4.1985 to the petitioner; that the said show cause notice was under Section 470-B of the CSR under which no specific time frame has been mentioned and, therefore, the show cause notice is valid; that as the petitioner did not respond to the communication issued by the answering-respondent and as the necessary papers/documents were not filed by the petitioner despite requests/reminders, it was not possible to sanction pension and gratuity; that the petitioner responded for the first time vide letter dated 8.6.1994 in which he wrote that he had submitted the pension papers on the prescribed proforma on 31.10.1983 but the factum of non-receipt of the necessary documents was communicated to the petitioner vide letter dated 5.9.1984 but the petitioner did not respond to the said letter; that the pension matter of the petitioner could not be disposed of as the petitioner has failed to submit the relevant pension papers/docu- ments despite several reminders to that effect from the respondent.
Respondent No. 5 filed additional affidavit on 28.4.2000 stating that as per Regulation No. 470(b) of the U.P Civil Service Regulations, 1966, as amended, if the services of a provincial civil servant are not found to be satisfactory then his pension can be reduced by the Appointing Authority; that since the services of the petitioner as M.D. of DSIDC on which post he was sent on deputation were not found to be satisfactory, a show cause notice dated 2.4.1985 was issued to him by the answering-respondent asking the petitioner to show cause as to why 3/4th part of his pension be not reduced for the reasons mentioned in the said notice; that the petitioner replied to the said show cause notice vide his reply dated 15.6.1988. After due consideration by the Governor of the State of U.P., who is the appoint- ing authority of the petitioner, the explanation submitted by the petition- er was not found to be satisfactory and by order dated 27.4.1989 3/4th part of the pension of the petitioner was reduced. This order was communicated to the petitioner at the relevant time.
5. Respondent No. 6, the Principal Accountant General-I, Allahabad in its counter-affidavit stated that the subject-matter of the writ petition primarily concerns respondent No. 5 i.e. Govt. of U.P.; that respondent No.6 maintains, computes and authorises payment of G.P.F. and other pen- sionery benefits to the retiring government servants on receipt of neces- sary documents from the Government of U.P. In the instant case no document for sanction of pension and other retirement benefits have been received by the answering respondent; that as regards the grievance of the petitioner about the motor car advance is concerned, “No Due Certificate” had already been issued on 17.3.1983 by the answering-respondent.
Respondent No.1 to 3 did not file counter. Respondent No. 2, conse- quent upon the order dated 17.3.1999, passed by this Court, placed on record copy of the minutes of the hearing dated 10.9.1999.
6. It is submitted by Shri G.P. Srivastav, petitioner in person that there are missing credits of 46 entries of GPF of Rs. 225/- per month; that the petitioner was a permanent incumbent on the post of Chairman, DSIDC; that on Sunday, 10.4.1997, a notification was issued appointing his succes- sor and the petitioner was directed to proceed on leave though he had not applied for leave; that the petitioner is victimized because of personal animus leading to his exit from respondent No. 4; that the petitioner was never an accused in the F.I.R./Report filed by the C.B.I. In fact, the petitioner was shown as Witness No.1 for the prosecution in the said charge sheet; that there was no C.B.I. case registered in 1977; that the petitioner’s appointment should have been notified; that there is no power of provisional appointment; that there was no inquiry held against the petitioner at any point of time; that the petitioner’s junior Chitrangad Singh was given provisional seniority; that the petitioner should be given ex post facto entitlement and that no body would be affected thereby; that even after his ouster from respondent No. 4, the petitioner was not removed from the post of Chairman, Delhi Tourism Corporation; that he was put in select list for IAS and that he should have been put to cadre post yet he is excluded; that the petitioner should have been placed above Mr.Chitran- gad Singh, who is at Serial No.20 and after Mr.Kalika Prasad, who is at No.16 in the select list; that the petitioner reported to the duty pursuant to Order at page 53 on the next day, though it was a lower grade. No order for creation of the post or emolument was passed and the petitioner was not given posting, hence he was forced to seek voluntary retirement; that the petitioner should be given pay and allowances of cadre post from 27.6.1978 to 12.1.2980 and scale would be Rs.1200-2000 plus special pay of Rs.250/- per month plus D.A. plus H.R.A. etc. with all pensionery benefits; that now there is no provision of provisional pension but gratuity remains to be released; that the petitioner’s pension is delayed for 20 years; that 12% interest be granted on the delay of provident fund, gratuity; that the action of U.P. Government-respondent No. 5 forfeiting 3/4th pension is illegal; that there are 46 missing credit entries of Rs.10,350/- on account of the failure of the Accountant General of respondent No. 5 and the amount has been wrongly debited from the petitioner’s salary though he is not at fault; that the petitioner was appointed on 7.11.1950; that the period of 8 years’ service has not been accounted for.
It is submitted by Mr.Nischal, learned counsel for respondents 2 and 3 that the petitioner was not eligible for consideration as vigilance case was pending against him on the relevant date and respondent No.5, which is the parent State of the petitioner had reduced the petitioner’s pension and it would only be respondent No.5 who would be liable.
It is submitted by Ms. Anusuya Salwan, learned counsel for respondent No.4 that the petitioner was from U.P. Cadre on deputation to respondent No.4; that the petitioner was Managing Director with respondent No.4 from 14.8.1972 and he was the Chairman-cum-Managing Director from 9.12.1974 to 10.4.1977; that the petitioner’s request for permanent absorption in re- spondent No.4 was not accepted; that respondent No.4 has nothing to do with the relief in the petition and if at all anyone is liable, it would be respondent No.5; that after 10.4.1977, petitioner was repatriated to re- spondent No.5-State of U.P.
It is submitted by Mr. Mittal, learned counsel for respondent No. 5 that in view of Regulation No.470(b) of U.P. Civil Service Regulation, 1996 the pension of a provincial civil servant can be reduced if his services are found not satisfactory; that the petitioner was served with show cause notice Annexure R-5/2 dated 27.4.1989; by order dated 24.7.1989 a decision to forfeit 3/4 of petitioner’s pension came to be taken and the same has not been challenged by the petitioner; Annexure R-5/1 is the notification dated 12.2.1996, which provides that if the services have not been thor- oughly satisfactory, the authority sanctioning the pension may make such reduction in the pension as it thinks proper.
7. Respondent No. 5, in his counter, raised dispute regarding the terri- torial jurisdiction to entertain this petition. It may be noted that in course of the submissions, learned counsel for respondent No.5 did not argue the point of want of territorial jurisdiction but since the dispute regarding jurisdiction is raised in the counter by respondent No.5, I consider the same. I do not find any merit in this submission since at least part of the cause of action can be said to have accrued within the territorial jurisdiction of this Court inasmuch as the petitioner has been seeking relief against respondent No.2 and 3 on the basis of his alleged right for appointment to the IAS Cadre and the consequential benefits.
8. It is the common case that the petitioner was in the U.P. Cadre and on deputation came to respondent No.4; that he was Managing Director with respondent No.4 from 14.8.1972 and Chairman-cum-Managing Director from 9.12.1974 to 10.4.1977. Thereafter the petitioner was repatriated to his parent U.P. cadre. The petitioner retired on 12.1.1980 (afternoon) volun- tarily. According to respondent No.4, the petitioner was paid salary till 31.7.1977. According to the petitioner, vide notification dated 10.4.1977, the petitioner’s successor was appointed in respondent No.4. All this would go to show that as far as respondent No.4 is concerned, the petitioner has been paid not only till the notification dated 10.4.1977 but also for the leave period upto 31.7.1977 and thereafter the petitioner went back to his parent cadre in respondent No.5. As seen above, according to respondent No.2, the petitioner was not appointed to IAS under Regulation 9(1) of the IAS (Appointment by Promotion) Regulation, 1955. According to respondent No.2 the order No.1085/II-1-1978 dated 10.3.1978 stated to be addressed to Secretary of this department, Govt of Uttar Pradesh had certified that the petitioner along with others would be officiated in a cadre post in a senior scale identical/higher to the time. Scale of senior post on which they were working at that time under explanation 4 of Rule (1) of IAS Regulation of Seniority Rules, 1953. According to respondent No.2, the petitioner was not appointed to IAS under Regulation 9(1) of the IAS (Appointment by Promotion) Regulation, 1955; that officiating appointment to the cadre on select list officers under Rule 9(1) of the aforesaid Rules are not akin to regular appointment to the IAS; that the petitioner was once included by the UPSC in 1977 select list at sl.No.39, provisionally, subject to the outcome of inquiries pending against him. He was not made unconditional in that list by UPSC on the recommendation of the State Govt. and hence was not recommended and the officers junior to the petitioner in the 1977 select list were promoted to IAS on 6.4.1978; that the next selec- tion committee for Uttar Pradesh met on 22.12.78 and prepared the 1978 select list comprising names of 56 officers, in which the name of the petitioner was not recommended. The petitioner was, therefore, not a member of the IAS at any point of time. The name of the petitioner was not recom- mended again in the subsequent select list of 1980 prepared by the commit- tee on 15/17.12.1980 also and that the petitioner was never a member of the IAS at any point of time.
Respondent No.5 in the counter has stated that the petitioner volun- tarily retired from PCS (Executive Branch) on 12.1.1980. Therefore, the retirement benefits available to an IAS officer can not be given to him.
9. Vide order dated 17.3.1999 this court directed respondent No.2 to consider the case of the petitioner for grant of pension after giving hearing to the petitioner and the 5th respondent. By the said order, re- spondent No.2 was directed to decide before 30.4.1999 whether the petition- er had been put on I.A.S. cadre.
Respondent No.2, along with affidavit dated 14.9.1999, filed a copy of the minutes of the hearing dated 10.9.1999. It has been stated in the copy of the minutes that “as per the verified record, available in the depart- ment, the petitioner was not appointed to IAS under Regulation 9(1) of the IAS (Appointment by Promotion) Regulation, 1955. Officiating appointment to the Cadre posts of Select List Officers under Rule 9(1) of the IAS (Cadre) Rules, 1954, are not akin to regular appointment to the IAS; that the officer was once included by the Union Public Service Commission in 1977 Select List at Sl.No.39, provisionally, subject to the outcome of inquiries pending against him. He was not made unconditional in that list by the UPSC on the recommendations of the State Government and hence was not recommend- ed for appointment to IAS by the Government of Uttar Pradesh. Officers junior to the petitioner in the 1977 select list were promoted to IAS on 6.4.1978. The next selection committee for U.P. met on 22.12.1978 and prepared the 1978 select list comprising names of 56 officers in which the name of the applicant was not recommended. The officer was, therefore, not a Member of the IAS at any point of time. The name of the applicant was not recommended again in the subsequent select list of 1980 prepared by the Committee on 15/17th December, 1980 also. Thus, the officer was not a Member of the IAS at any point of time. Thus, the petitioner had not been put on IAS cadre and was confined to be in the employment of the State Civil Service of the Govt of U.P. till his retirement from service. Thus, the issue of granting an admissible pension has to be settled by the gov- ernment of U.P. and respondent No.2-Union of India is not concerned in the matter.
10. It is pertinent to note that respondent No.3 does not file counter to state that the inclusion of petitioner’s name in 1977 select list was provisional subject to out come of inquiries pending against him nor does respondent No.5 say anything as regards the inclusion of petitioner’s name at Sl.No.39 in the select list of 1977 and the non-recommendation of the petitioner for appointment to IAS by respondent No.5. It is also not stated in the counter as to when the inquiry was initiated, what were the charges against the petitioner, when it concluded and what was the out-come of the departmental inquiry.
11. Learned counsel for respondent No.5 vehemently relies on the order dated 27.4.89 (Annexure R-5/2), whereby the 3/4 pension of the petitioner has been forfeited. It is suggested from Annexure R-5/2 that while the petitioner was posted as Chairman-cum-Managing Director, DSIDC from 1972 to 1977, several serious irregularities came to the knowledge of the Govern- ment in inquiry against him on the basis of the complaint against him and in this regard, the petitioner was served with show cause notice. His explanation was not found satisfactory, hence order Annexure R-5/2. It may be noted that in the submission of learned counsel for respondent No.5, the reduction in pension is pursuant to Regulation 470(1)(b) and the notifica- tion dated 12.2.1996 for which Annexure R-5/1. Clause (b) provides that if the services are not being thoroughly satisfactory, the authority sanction- ing the pension should make such reduction in the amount as it thinks proper……..” Annexure R-5/2, Order dated 27.4.89 can not be regarded as an order under Regulation 470(1)(b) since the said notification came into effect from 12.7.1996 nor the order Annexure R-5/2 refers to the so called unsatisfactory service rendered by the petitioner. Thus, for the purpose of reduction/ forfeiture of 3/4 pension of the petitioner regulation 470(1)(b) can not be resorted to and also for the reason that the acts alleged in the show cause notice dated 2.4.1985 (Annexure P-18) refers to acts of 1954, 1956-57 and 1961-62. Thereafter, the petitioner has been given number of promotions and also on deputation was sent to respondent No.4 as the Manag- ing Director and that the petitioner also worked as the Chairman-cum-Manag- ing Director of DSIDC. Thus, the censure in the year 1954 and adverse entries of the years 1956-57 and 1961-62 would pale into insignificance and can not be made the basis for reduction/forfeiture of pension referring to Regulation 470(1)(b) as sought to be contended by the counsel for respond- ent No.5.
It is suggested from Annexure P-13, communication from Joint Secre- tary, U.P. Government dated 15.7.1988 that the petitioner was on leave on medical grounds from 20.11.1978 to 12.9.1979 and on his return from leave, the petitioner was posted as Deputy Land Reforms Commissioner, Board of Revenue, U.P. and later Director, Man Power Planning, U.P. Planning Organi- zation, but the petitioner was not given charge of the post. Accordingly, these orders were cancelled and the petitioner was kept in a state of waiting for further orders, leading his application dated 12.9.1979 seeking voluntary retirement. It is also suggested from Annexure P-13 that between 13.9.79 to 11.10.79, the petitioner remained without any post for no fault of his personally and the Government of U.P. allowed the period between 13.9.79 to be treated on duty due to compulsory waiting under financial hand book Part-2 Chapter 2-4 Fundamental Rule 9(6)(b)(111). This would show the treatment meted out to the petitioner.
12. As far as irregularities during the years 1972 to 1977 while the petitioner was with respondent No.4-DSIDC are concerned according to the petitioner in the CBI report/charge sheet the petitioner was cited as prosecution witness No.1 and was not arrayed as the accused and it is not disputed that the CBI looked into the allegations, filed charge sheet dated 26.9.1980 (Annexure P-22) against certain persons and the list of witnesses Annexure P-22A suggests the name of the petitioner as the prosecution witness No.1. Annexure P-23 is the order dated 17.5.1982 passed by the Metropolitan Magistrate, whereby charge was framed against the accused persons relying on the statement of the present petitioner recorded by CBI in the course of investigation. Admittedly, the petitioner voluntarily retired w.e.f. 12.1.1980. The show cause notice Annexure P-18 is dated 2.4.1985 i.e. after five years of the petitioner’s voluntary retirement. The order Annexure R-5/2 forfeiting 3/4 pension came to be passed on 27.4.1989. I am unable to accept the submission of learned counsel for respondent No.5 that under Rule 470-B of C.S.R. no specific time has been mentioned and, therefore, show cause notice is valid. Even if there is no specific time frame provided in Rule 470-B of C.S.R., the issue of show cause notice under Rule 470-B of C.S.R. has to be within the reasonable time limit.
13. As far as the petitioner’s entitlement on the basis of IAS cadre is concerned, I am not inclined to accept the contention raised by the peti- tioner for the reason that the petitioner had not been put on IAS Cadre and the petitioner was not recommended for appointment to IAS by the Government of Uttar Pradesh and the petitioner was confirmed to be in the employment of the State Civil Service of Government of U.P. till his retirement from service. The petitioner in my view should have challenged the action of the non-recommendation/non-inclusion of his name in I.A.S. Cadre and for ap- pointment to I.A.S. Cadre, by respondent No.5 and the consequent non-ap- pointment to the IAS Cadre by respondents No.1, 2 and 3 at the relevant when his name was excluded in the select list of 1978 and thereafter. This would go to show that the petitioner would not be entitled to the relief on the basis of IAS Cadre and, therefore, the liability would be that of respondent No.5 only.
Respondent No.6, Principal Accountant General for the State of Uttar Pradesh has stated in the counter that no due certificate had already been issued on 17.3.1983 by respondent No.6. Annexure R-1 along with the counter is the copy of the no due certificate issued by respondent No.6. It is also stated in the counter that no document for sanction of pension and other retirement benefits has been received by respondent No.6. Even respondent No.5 also in the additional affidavit states that the State of U.P. wrote number of registered letters to the petitioner to fill up his pension forms so that his pension could be started. It is pertinent to note that respond- ent No.5 required the petitioner to fill up his pension forms on the basis of and consequent upon Annexure R-5/2 whereby 3/4 pension of the petitioner has been ordered to be forfeited. It is obvious that the petitioner would not fill up pension forms on the basis of/pursuant to Annexure R-5/2.
14. In the present writ petition, the petitioner has also challenged the show cause notice dated 2.4.1985 as arbitrary, illegal and unconstitution- al. It is pertinent to note that Annexure R-5/2 states that the explanation to the show cause notice, filed by the petitioner was considered and the same was not found satisfactory, meaning thereby that no further inquiry was conducted by the department against the petitioner and the only in- quiry, therefore, by the CBI, which as pointed out above, culminated into citing the petitioner as prosecution witness and not the accused. This would show that there is no basis for the order Annexure R-5/2.
The show cause notice Annexure P-18 and the consequent order Annexure R-5/2, appreciating the facts emerging from the record and the treatment meted out to the petitioner, smacks of mala fides and with a view to deprive the petitioner of his retirement benefits. Suffice it to say for the present purpose that the petitioner would be entitled to full terminal benefits on the basis of his employment with the State Civil Service of Govt. of U.P.-respondent No.5 till his retirement from service and it would be for respondent No. 5 to settle all the admissible claims payable to the petitioner within a reasonable time. It need hardly be said that Annexure R-5/1 and 2 can be of no benefit to respondent No.5 for the purpose of forfeiting/reducing 3/4 of the pension of the petitioner and the petitioner is found entitled to full pension ignoring Annexure R-5/1 and 2. It is true that the petitioner has not earlier challenged this order and has only chosen to challenge the show cause notice Annexure P-18 by this writ peti- tion. Looking to the treatment meted out to the petitioner, as pointed out above and the CBI report Annexure P-22 and P-22A, with a view to redress the injustice caused to the petitioner the delay in challenging the order Annexure R-5/2 can not impede the course of justice and thereby giving premium to respondent No. 5 when a blatant injustice has been done to the petitioner by forfeiting his 3/4 pension. It was expected of respondent No.5 to have acted justly and fairly towards its employees rather than indulge in baffling just claims of it’s employee’s and even by resorting to technicalities.
15. It will be seen that according to the respondent the petitioner stated by his letter dated 8.6.1994 that he had submitted the pension papers on the prescribed proforma on 31.10.1983 and the factum of non-receipt was communicated to the petitioner vide letter dated 5.9.1984. It is to be appreciated that the non-receipt is communicated after more than 10 months. If the petitioner for the first time stated in his letter dated 8.6.1994 than where was the reason for the respondent to communicate the non-receipt of papers vide letter dated 5.9.1984, which will go to show that just claims of the petitioner have been malafide denied for no fault of the petitioner and the petitioner would be entitled to the interest on the malafide delayed settlement of the pensionery dues of the petitioner at least from 1.1.1984 since the respondent within two months of 31.10.1983 ought to have settled/paid all just claims of the petitioner.
16. In the result, respondent No. 5 is directed to settle/pay full retiral benefits/claims including pension without reduction to the petitioner after adjusting the amount, if any, paid to the petitioner within three months from today with 9% interest from 1.1.1984, failing which, the petitioner would be entitled to 12% interest from 1.1.1984 on the entire amount pay- able to the petitioner.
17. The compensation payable to the petitioner is quantified at Rs.25,000/- for the harassment, inconvenience and annoyance caused to the petitioner.
18. Petition disposed of accordingly.
