JUDGMENT Mr. A.N. Jindal, J.: - Both the courts below declined the claim of the plaintiffappellant (herein referred as, ‘the plaintiff’) to the effect that the deduction of Rs.4,11,405.49 effected from his pensionary benefits was arbitrary, illegal, unjust and the court refused to direct the respondents to return the said amount along with interest @ 18% per annum from 1.5.1997. 2. The undisputed facts of the case are that the plaintiff was working as Junior Engineer up till 9.7.1986, when he was promoted as Assistant Engineer/ Sub Divisional Officer. During the said period, the respondents found that the plaintiff had not cleared MAS accounts relating to the period prior to 1975-76. According to the plaintiff, he had supplied all the accounts which were confirmed by the Chief Engineer as per letter dated 29.10.1985 (Ex.PW3/1). The Chief Engineer had issued this letter on the basis of a letter sent by the Additional Chief Engineer stating that the plaintiff had also rendered his MAS accounts in the office of the Executive Engineer. Thus, the plaintiff submitted that he was never charge sheeted and no enquiry was held against him qua the said allegations till he retired on 30.4.1997. Later on, in the year 1998, the Committee while observing that there was shortage of Rs.4,20,238.79, issued notice Ex.DW1/E on 24.7.1998. The said recovery was illegal and invalid. No deduction could be made from the pensionary benefits payable to him. 3. The defendants in their written statement alleged that the plaintiff while working as Junior Engineer had not submitted the statements of MAS accounts despite the letters written to him from time to time. Ultimately, he had filed a civil writ petition No.18605 of 1997, which was dismissed by the High Court on 27.9.1999 with the direction to settle all the objections, but still the plaintiff did not come to settle the objections. During the pendency of the writ petition, a committee of two Sub Divisional Officers was constituted to settle the accounts. The plaintiff was requested to join the proceedings but he did not turn up. The Committee found the plaintiff to be in arrears of Rs.4,20,238.79, about which he was duly informed. Later on the said amount was reduced to Rs.3,97,996.74, which was to be recovered from the plaintiff along with interest. 4. From the pleadings of the parties, the following issues were framed :- 1. The Committee found the plaintiff to be in arrears of Rs.4,20,238.79, about which he was duly informed. Later on the said amount was reduced to Rs.3,97,996.74, which was to be recovered from the plaintiff along with interest. 4. From the pleadings of the parties, the following issues were framed :- 1. Whether the defendants have illegally deducted a sum of Rs.4,11,405.49 paise from the pensionary benefits of the plaintiff?OPP 2. If issue No.1 is proved in affirmative, whether the plaintiff is entitled for a decree for refund of the above amount along with interest and costs as alleged?OPP 3. Whether suit is not maintainable in the present form?OPD 4. Whether plaintiff has suppressed the true and material facts from the court, if so to what effect?OPD 5. Whether suit is bad for non-joinder of necessary parties?OPD 6. Whether Civil Court has got no jurisdiction to entertain and try the present suit?OPD 7. Relief. 5. Both the parties led evidence. On scrutiny of the evidence, the trial court vide judgment dated 29.5.2006 dismissed the suit and the appeal was dismissed by the appellate court on 28.7.2008. 6. The substantial question of law arises for determination in this case is, “Whether the respondents were within their rights to recover this amount even after the plaintiff had retired from service and this amount relating to the period prior to 1975-76, was never settled with the plaintiff, even after he was promoted and till he retired?” 7. As per PW-3 Ram Kumar, Assistant, the plaintiff was neither charge sheeted nor issued any show cause notice with regard to MAS accounts during the course of his service. He further admitted that under Regulation 4 (v) of Punishment and Appeal Regulations, 1990, the procedure has been provided. He also admitted that according to the said procedure no recovery notice was issued to the appellant by the competent authority i.e. Secretary of the State. There is also no dispute with the fact that the respondents had not initiated any enquiry and no charge sheet was issued to him during the period of his service regarding MAS accounts. PW-4 A.P. Jain, AEE, has confirmed that the accounts had been submitted in the year 1980 and were to be finalized by the XEN (Construction), Ambala and he further confirmed that the accounts were to be returned to the Sub Division by the XEN (Construction) in case of any discrepancy. PW-4 A.P. Jain, AEE, has confirmed that the accounts had been submitted in the year 1980 and were to be finalized by the XEN (Construction), Ambala and he further confirmed that the accounts were to be returned to the Sub Division by the XEN (Construction) in case of any discrepancy. However, the accounts were never returned to the Sub Division. Thus, it would be too belated to say that the plaintiff had committed any irregularity in the accounts entitling the respondents to recover the same from him. PW-2 Gulshan Kumar has confirmed the fact that no show cause notice or recovery notice was issued to the plaintiff. He also proved the letter (Ex.PW3/1) issued by the Chief Engineer indicating that the accounts had been submitted relating to all the works. It is also further apparent on the record that the respondents have failed to explain the delay for finalization of the accounts and withholding and consequently deducting the amount from the pensionary benefits payable to the plaintiff. The action of the respondent Nigam is contrary to Rule 2.2 (b) of the Punjab Civil Services Rules, Part-II, Vol. 2, as adopted by the respondents. The relevant extract of the said Rule is reproduced as under :- “Rule 2.2 (b) The Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specific period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental judicial proceedings, the pensioner is found guilty of grave misconduct or negligence, during his service including service rendered on re-employment after retirement. Provided that :- 1) Such departmental proceedings, if instituted while the officer was in service whether before his retirement or during his re-employment shall after the final retirement of the officer, be deemed to be a proceeding under this article and shall be continued and concluded by the authority by which it was commenced in the same manner and as if the officer had continued and concluded by the authority by which it was commenced in the same manner and as if the officer had continued in service. 2) Such departmental proceedings, if not instituted while the officer was in service whether before his retirement or during his reemployment. 2) Such departmental proceedings, if not instituted while the officer was in service whether before his retirement or during his reemployment. i) shall not be instituted save with the sanction of the Government. ii) shall not be in respect of any event which took place more than four years before such institution of such proceedings and iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could not made in relation to the officer during his service. 3) No such judicial proceedings, if no instituted while the officer was in service whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution; and “the Public Service Commission shall be consulted before final orders are passed.” Explanation: For the purpose of this rule - (a) A departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date; and (b) A judicial proceedings shall be deemed to be instituted :- (i) in the case of criminal proceeding, on the date on which the complaint or report of the police officer on which the Magistrate takes cognizance, is made; and (ii) in the case of civil proceeding, on the date of presentation of the plaint in the court. Note:- As soon as proceedings of the nature referred to in the above rule are instituted, the authority which institutes such proceedings should without delay intimate the fact to the Accountant General. The amount of the pension withheld under clause (b) should not ordinarily exceed one third of the pension to be so withheld, regard should be had to the consideration whether the amount of the pension left to the pensioner in any case would be adequate for his maintenance. The amount of the pension withheld under clause (b) should not ordinarily exceed one third of the pension to be so withheld, regard should be had to the consideration whether the amount of the pension left to the pensioner in any case would be adequate for his maintenance. 2.2 © (1) Where any departmental or judicial proceeding is instituted under clause (b) of rule 2.2 or where a departmental proceeding is continued under clause (i) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceedings, final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement up to the date immediately preceding to the date on which he was placed under suspension; but no gratuity or death-cumR. S.A. No. 341 of 2009 (O&M) -6- retirement gratuity shall be paid to him until the conclusion of such proceedings and of final orders thereon. The Gratuity, if allowed to be drawn by the competent authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of final orders by the competent authority. (Provided that where Departmental proceedings have been instituted under rule 10 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 for imposing any of the penalties specified in clauses (i), (ii) and (iv) of Rule 5 of the said rules, the payment of gratuity or death-cum-retirement gratuity, as the case may be, shall not be withheld) (2) Payment of provisional pension made under sub-clause (1) shall be adjusted against the final retirement benefits sanctioned to such officer upon conclusion of the aforesaid proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period. Note:- The grant of pension under this rule shall not prejudice the operation of rule 6.4 ibid when final pension is sanctioned upon conclusion of the proceedings.” 8. Note:- The grant of pension under this rule shall not prejudice the operation of rule 6.4 ibid when final pension is sanctioned upon conclusion of the proceedings.” 8. The explanation ‘A’ appended to the rules indicates that a departmental proceedings could be continued only if the statement of the charges had been issued to the officer at the time when he was still in service. Even, apart from bare reading of the section, the question with regard to tenability of the initiation of departmental proceedings, post retirement, has been decided by a Division Bench of this Court in case Dr. Inderjit SinghWasu vs. State of Punjab and others, 2007(3) SCT 788 and in case Sub Inspector Puran Chand (Retd.) vs. State of Punjab and others 2000 (3) SCT 515 observing that if a charge sheet was issued subsequent to the retirement, on an incident, which had taken place more than 9 years prior to the retirement, the departmental action would be impermissible. 9. In the present case, non submissions of the accounts, if any, related to the years 1975-76, though according to the plaintiff he had submitted these accounts, as admitted by A.P. Jain, AEE (PW3), the same could not be made subject to any enquiry against the officer till he retires. It was for the first time in the year 1998 when the respondents came with such allegations against the appellant. No such charge sheet was issued against him containing such charges prior to his retirement, as such, whole proceedings are liable to be quashed. 10. It has been observed by this Court in case Narender Dev vs. State of Punjab and others, 1996 (1) SCT 623 that a departmental enquiry cannot be treated to have been initiated till the competent authority frames the charge sheet and issues the same to the concerned employee. 11. Similarly, this Court in case Madan Lal vs. State of Punjab and others, 2003 (1) RSJ 732 observed that the recoveries from the retiral benefits on account of alleged shortage by the employee was not sustainable as no departmental proceedings had been initiated for the alleged shortages. 12. Further the Division Bench of this Court in case Hans Raj Sharma vs. Uttar Haryana Bijli Vitran Nigam Ltd. and others 2004 (4) RSJ 290 has observed that issuance of charge sheet is sine-qua-non for initiation of departmental enquiry. 13. 12. Further the Division Bench of this Court in case Hans Raj Sharma vs. Uttar Haryana Bijli Vitran Nigam Ltd. and others 2004 (4) RSJ 290 has observed that issuance of charge sheet is sine-qua-non for initiation of departmental enquiry. 13. It was further observed by this Court in case Ram Narayan Dua vs. Dakshin Haryana Bijli Vitran Nigam, 2007 (1) SCT 161 (DB) that the respondents could not have withheld any amount of gratuity payable to the petitioner on account of allegations which have emanated after the date of his retirement. 14. Further this Court in case O.P. Kharab vs. Haryana Vidhyut Prasaran Nigam Ltd. 2007 (2) SCT 49 observed as under :- “On the basis of the aforementioned principle laid down in Rule 2.2 (b) it has to be concluded that the charges are more than four years old from the date the charge sheet was issued. It is evident from the facts that the charge sheet was issued to the petitioner on 30.11.2003 in respect of events commencing from May, 1994 to July, 1994 or at the best of the year 1998. On the date of issuance of charge sheet all those allegations were in respect of an event which has occurred more than four years ago. The principle adopted in explanation to Rule 2.2 (b) (4) is a wholesome principle which has backing of judicial precedents......” 15. This Court in case Baldhir Singh vs. State of Punjab and others, 2009 (1) RSJ 351 observed as under :- “A bare perusal of the aforementioned Rule makes it clear that Rule 2.2(b)(ii) places a complete embargo on holding of an enquiry against a retired employee for any event which has happened four years prior to the institution of enquiry. In other words, in case a departmental proceeding is to be initiated against an employee after his retirement, it cannot be in respect of an event, which has taken place more than four years prior to the date of the institution of inquiry. The rationale behind the rule appears to be that a retiree should not be subjected to undue hardship in the evening of his life after having rendered satisfactory service to the State. The rationale behind the rule appears to be that a retiree should not be subjected to undue hardship in the evening of his life after having rendered satisfactory service to the State. If old matters which have been settled by afflux of time are permitted to be re-opened after expiry of period of four years then a retiree may not be in a position to defend himself because the evidence in his favour may not be available. The co-employee after retirement might have settled at far flung places and memory may not serve such witnesses and the retiree. The `Sword of Damocles’ in the shape of departmental inquiry cannot be kept hanging on the head of the retiree for all times to come and he should be allowed to live in peace after the statutory period of four years of his retirement has come to an end. Moreover, the learned State counsel has not been successfully able to controvert the argument and judgments (supra) relied upon by the learned counsel for the petitioner.” 16. This Court has relied upon Baldhir Singh’s case (supra) observed in case S.S. Arya vs. Uttar Haryana Bijli Vitran Nigam Ltd. 2009 (3) SCT 440 the observations held in this judgment are as under :- “During the course of hearing, counsel for the respondents could not controvert the aforesaid legal position or cite any contrary judgment which justifies the action of initiation of the departmental proceedings against the petitioner after one-andhalf years of his retirement for the acts of omissions, resulting into loss to the respondent Nigam, which took place four years before the institution of such proceedings. In view of this, in my opinion, the initiation of the departmental proceedings against the petitioner by issuing the charge-sheet 31.1.2007 and the subsequent proceedings are illegal and without jurisdiction and hence are not sustainable in the eyes of law.” 17. Thus, while examining the whole law on the point, it is observed that when no proceedings had been initiated by the respondents against petitioner-employee prior to his retirement and no enquiry has been held, the respondents could not make such deductions against its employee on the basis of a report made by some committee after his retirement. 18. Thus, while examining the whole law on the point, it is observed that when no proceedings had been initiated by the respondents against petitioner-employee prior to his retirement and no enquiry has been held, the respondents could not make such deductions against its employee on the basis of a report made by some committee after his retirement. 18. Resultantly, this appeal is accepted, impugned judgment is set aside and the suit of the plaintiff-appellant is decreed to the effect that he is entitled to the refund of the deductions made out of his pensionary benefits along with interest @ 12% per annum w.e.f. 1.5.1997 to the actual date of payment. ---------0.B.S.0------------