JUDGMENT Hon’ble B. Amit Sthalekar, J.—This writ petition has been filed by the petitioner seeking a direction in the nature of mandamus to the respondents to make payment of gratuity amount of Rs. 2,60,200/-, said to have been wrongly deducted and the amount of Rs. 10,320.43/-, which is stated to have been illegally recovered from the petitioner. 2. The facts of the case, in brief, are that the husband of the petitioner Late Kanti Swaroop Yadav was posted as junior engineer in the U.P. Jal Nigam, Etawah. He died on 8.7.2000 in harness. He is survived by his wife, the petitioner and son Rama Kant Yadav and daughter Km. Sushma Yadav. According to the petitioner no dues certificate was issued by the Chief Engineer on 12.12.2006, which is filed as Annexure-3 to the writ petition, and inspite of same a sum of Rs. 2,60,200 towards gratuity has been illegally deducted. 3. I have heard Shri R.P. Tiwari, learned counsel for the petitioner, Shri Ramesh Chandra Gupta, learned for the U.P. Jal Nigam and the standing counsel appearing for the State respondents. The order is being dictated in the open Court. 4. A counter-affidavit has been filed by Shri Gupta on behalf of respondent Nos. 2 to 7. In paragraph 4 of the counter-affidavit it has been stated as under: “However, it is further submitted that since the deceased was posted different units of C. & D.S. Unit situated at Sitapur, Deoria, Etawah etc. and he died all of sudden. Needless to state here that the Junior Engineer alone is responsible for material lying in the stores. During the departmental audit, it was found that from different units of C & D. S., where he was posted, the material of Rs. 6,41,082.80 Ps. Was outstanding against the deceased but after adjustment of material only Rs. 2,31,175.68 P was found outstanding against the deceased.” 5. There is nothing on record to show that any inventory of the stores was made during the life time of late Kanti Swaroop Yadav. The shortage of material is said to have been discovered after the death of Late Kanti Swaroop Yadav and then this amount has been sought to be recovered from the gratuity of the husband of the petitioner. The shortage of material is said to have been discovered after the death of Late Kanti Swaroop Yadav and then this amount has been sought to be recovered from the gratuity of the husband of the petitioner. It is not in dispute that the petitioner died all of sudden but at the same time nothing has been stated in the counter-affidavit as to what steps have been taken by the respondents to secure the material lying in the stores immediately after the death of late Kanti Swaroop Yadav. No charge-sheet or any show-cause notice is said to have been issued to late Kanti Swaroop Yadav during his life time regarding the shortage of materials in the stores. Learned counsel for the U.P. Jal Nigam when put a direct question that there could be a possibility of theft of stores or pilferage of stores after the death of Late Kanti Swaroop Yadav, could not deny the same and he very fairly stated that he could argue nothing beyond the counter-affidavit. He, however, placed reliance upon a G.O. dated 25.8.1989 wherein it has been laid down that outstanding dues against an employee retiring or dying can be deducted from his gratuity. 6. The legal position in this regard cannot be disputed. But the question remains what kind of dues can be recovered from the terminal benefits of a deceased employee. 7. If the dues relate to loss of material in stores, as in the present case, the responsibility has to be fastened upon somebody and unless such responsibility is fastened and the person responsible for such misappropriation or loss of material in the stores identified, the value of such loss in the stores cannot be recovered from any employee at the whims of the respondents. 8. In the present case, as already noted above, there is nothing on the record to show that any inventory of the stores was prepared during the life time of Late Kanti Swarup Yadav or that the loss was discovered and whether any charge-sheet was issued to Late Kanti Swarup Yadav so as to establish his guilt. Therefore, in my opinion without fastening responsibility upon the husband of the petitioner by way of misconduct through disciplinary proceeding, it was not open for the respondents to make deductions from the terminal benefit of the husband of the petitioner. 9. Therefore, in my opinion without fastening responsibility upon the husband of the petitioner by way of misconduct through disciplinary proceeding, it was not open for the respondents to make deductions from the terminal benefit of the husband of the petitioner. 9. Learned counsel for the petitioner in this context has placed reliance upon a decision of this Court passed in the case of Prashant Rajan Singh v. State of U.P. and others, 2008(4) ESC 2715 , wherein identical question was raised. This Court interpreted the G.O. dated 28.7.1989 and held that no recovery can be made from the gratuity. There is no doubt about this legal position. However, since no responsibility was ever fastened upon Late Kanti Swaroop Yadav during his life time no recovery can be made from his terminal benefits after his death. 10. In view of the above, the writ petition stands allowed. A direction is issued to the respondent No. 5-Chief Account Officer, U.P. Jal Nigam, Lucknow to release the amount of Rs. 2,60,200/- and a sum of Rs. 10,230.43/- in favour of the petitioner within a period of one month from the date a certified copy of this order is presented before him. In this case the petitioner’s husband died on 8.7.2000 and till date the above amount has not been paid to his legal heirs, therefore, the respondents shall make the payment with interest at the rate of 10% per annum. ——————