JUDGMENT Hob’ble Zaki Ullah Khan, J.—This writ petition under Article 226 of the Constitution of India has been filed by the petitioner inter alia praying that the Court may issue a direction for quashing the impugned order dated 28.10.1996 (Annexure 18) passed by State Public Services Tribunal and simultaneously he has also prayed that the order dated 19.3.1988 passed by the opposite party No. 3, Superintending Engineer, Tubewell Circle, Lucknow (Annexure 11) for the recovery of Rs. 2,67,667.84 paise from the petitioner be quashed. The petitioner has also prayed that a writ, order or direction in the nature of mandamus commanding the respondent Nos. 1 to 5 to pay full pensionary benefits as admissible under Rules be issued.. 2. The brief facts in the petition are that the petitioner was posted on the post of Junior Engineer in the year 1960 and superannuated from service on 31.1.1986. The dispute is regarding the post retiral dues; a show-cause notice was given to the petitioner on 6.7.1997 and he was asked to explain as to why the amount be not recovered from him because shortage of material. It is contended that the provisions of Clause 351-A of Civil Services Regulation have not been followed. The petitioner repeatedly submitted that he could not peruse the documents by which the recovery is being directed as he retired from service on the prior date. The order of the recovery dated 19.3.1988, therefore is per se illegal. The basis of the petitioner’s contention is that there is specific provision under Clause 351-A of Civil Services Regulation that no proceedings can be initiated after the superannuation without seeking prior permission of His Excellency The Governor and that to regarding the incident which happened four years earlier the retirement. In the instant matter, the recovery relates to period which is beyond the four years. Therefore, in any circumstances the recovery is altogether baseless void and illegal. The payment of pension/gratuity of Government servant cannot be withheld merely on account of any enquiry pending against him. The Government has issued execution direction in the matter of grant of pension and gratuity to the retired Government servant contained in G.O. No. G-3-1555/X-909-79 dated 30.9.1982 which provide that if no departmental/judicial proceedings or any enquiry or Administrative Tribunal has been instituted against the Government servant, he shall be paid full pension gratuity admissible under Rules. The Government has issued execution direction in the matter of grant of pension and gratuity to the retired Government servant contained in G.O. No. G-3-1555/X-909-79 dated 30.9.1982 which provide that if no departmental/judicial proceedings or any enquiry or Administrative Tribunal has been instituted against the Government servant, he shall be paid full pension gratuity admissible under Rules. Till his retirement no enquiry was instituted against him. Despite making several representations dated 2.9.1986 and 5.4.1988 his pension was not released. The action of the opposite parties are arbitrary without rules. The opposite party No. 3 issued show-cause notice only on 6.7.1987 requiring him to furnish his explanation towards shortage of stock and T & P detected against him. The petitioner submitted that through reply that these items has never been received by him. The petitioner was not shown relevant papers and the opposite party No. 3 did not go through his proper replies and passed an arbitrary order for recovery of Rs. 2,67,667.84/- and withheld his post retiral dues. The petitioner preferred a claim petition before the U.P. State Public Services Tribunal but the Tribunal was of the opinion that the petitioner retired on 31.1.1986 and show-cause notice was issued to him on 6.7.1987. It is submitted by the opposite parties that the shortage of stock and T & P came into the light in the year 1981 and immediately thereafter the show-cause was given to explain the shortages. The Tribunal was not satisfied with the explanation given by the petitioner that the enquiry was instituted after the retirement and related the matter with effect from 1981. The Tribunal opined that the matter was pending since 1981 and there was continuous probe going on since then. The Tribunal was of the opinion that if the services of the employees are not satisfactory his pension can be reduced but since ten years have passed the Tribunal granted relief in part and directed that the pension should be paid to the petitioner but dismissed the petition. Being aggrieved by the aforesaid order the instant petition has been filed. 3. The opposite parties submitted the counter-affidavit and reiterated that the petitioner was asked to explain on 23.7.1981 regarding lost of items and he could not furnish any defence and could not explain as to why there was shortage of articles. The allegation of the petitioner that no enquiry is pending is baseless. 3. The opposite parties submitted the counter-affidavit and reiterated that the petitioner was asked to explain on 23.7.1981 regarding lost of items and he could not furnish any defence and could not explain as to why there was shortage of articles. The allegation of the petitioner that no enquiry is pending is baseless. He was probed regarding lost of items since 1981 much before his retirement. Since the proceeding were pending, benefits except reduced pension were withheld due pending recovery of the value of the Government stock and T & P detected against the petitioner. The petitioner's contention to the contrary are false, the petitioner could not justify as to any item regarding which show-cause notice was given to him. Hence, there was no need to permission under Clause 351-A of Civil Services Regulation since the enquiry initiated as back as 1981. 4. The petitioner rebutted the allegations made in the counter-affidavit and alleged that the shortage are fabricated 50% of the shortage has been reconciled. The matter of reconciliation rest with the Executive Engineer concerned. The contention is false and misconceived that the deponent is responsible for any shortage of the Government material as alleged no proceedings were initiated against him while deponent was in service. Only His Excellency Governor can direct that after retirement under the provisions of Clause 351-A of Civil Services Regulation. The recovery can be instituted as far as the petitioner is concerned. He was neither placed under suspension nor any enquiry was pending against him and he was never held guilty of any misconduct. 5. We have heard learned counsel for the petitioner as well as learned counsel for the respondents and learned Standing Counsel for the State. 6. The petitioner was appointed on 13.1.1951 as a Mechanic and was promoted to the post of Junior Engineer in the month of November, 1966 and was retired from service on 31.1.1986. The show-cause notice was issued on 6.7.1987 by the Superintending Engineer after retirement. The petitioner replied the notice that no enquiry was pending against him. No permission was taken by the department in view of provision under Clause 351-A of Civil Services Regulation. No charge-sheet has ever been issued to him. The show-cause notice was issued on 6.7.1987 by the Superintending Engineer after retirement. The petitioner replied the notice that no enquiry was pending against him. No permission was taken by the department in view of provision under Clause 351-A of Civil Services Regulation. No charge-sheet has ever been issued to him. No disciplinary enquiry proceeding was pending against him till date under Section 4(6) of Payment of Gratuity Act, 1972, gratuity can be stopped only when the disciplinary proceedings are completed and the petitioner’s service are terminated. Even the Tribunal has directed to pay the pension but directed that his gratuity be withheld till the recovery proceedings are pending. Learned counsel for the petitioner vehemently argued that the petitioner is an old man of 86 years of age and retired twenty years back and he has not been paid his retiral dues despite no legal matter is pending against him. Merely on fictitious ground his retirement dues cannot be withheld. The Division Bench of this Court has held in U.P. State Warehousing Corporation, Lucknow v. Bris Bhan Singh and another, 2011 (29) LCD 1348, that the disciplinary proceedings not permissible unless provided under the rules in another case Division Bench of this Court in Writ Petition No. 328 (SB) of 2007 (Paras Nath Sharma v. State Public Services Tribunal, Lucknow and others, held that no punishment/recovery after retirement can be made without prior sanction of Hon’ble Governor and also the Division Bench of this Court held that in Writ Petition No. 3754 (SB) of 1993 (Vivek Kumar Mittal v. State of U.P. and others), no punishment/recovery after retirement can be made without prior sanction of Hon’ble Governor. The Apex Court has also held in (2007) 6 SCC 694 that if the enquiry commenced after issuance of charge-sheet no punishment can be awarded on the basis of show-cause notice and the Civil Services Regulation 351-A is reproduced as below : “351-A. The Provincial Government reserve to themselves the right to order the recovery from the pension of an officer who entered service on or after 7th August, 1940 of any amount on account of losses found in judicial or departmental proceeding to have been caused to Government by the negligence or fraud of such officer during his service. Provided that: (1) Such departmental proceedings, if not instituted while the officer was on duty. Provided that: (1) Such departmental proceedings, if not instituted while the officer was on duty. (I) shall not be instituted save with the sanction of the specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, it the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused, pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement; Provided that: (a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment- (i) shall not be instituted save with the sanction of the Governor, (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings, and (iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may made (b) judicial proceedings, if not instituted while the officer was on duty either before the retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) (a) and (c) the Public Service Commission, U.P., shall be consulted before final orders are passed. 7. We, have gone through the relevant case law and Civil Service Regulations, this is admitted fact that no punishment as ever been provided to the petitioner. The petitioner was not facing any enquiry just a notice was issued to him after the date of retirement and no permission has ever been sought from His Excellency The Governor, for initiating the enquiry and it is interesting to note that the matter relates to more than four years prior to retirement which is the period mentioned for initiating enquiry i.e. enquiry can be initiated only four years prior to the retirement of the petitioner. The petitioner was retired in the year 1986 and the matter relates to the year 1981. It is beyond the prescribed period of four years and there are three repeated pronounced judgment of the Division Bench of this Court that after retirement no enquiry can be initiated without prior sanction of His Excellency The Governor. The Hon’ble Apex Court has also held in the similar matter. It is beyond the prescribed period of four years and there are three repeated pronounced judgment of the Division Bench of this Court that after retirement no enquiry can be initiated without prior sanction of His Excellency The Governor. The Hon’ble Apex Court has also held in the similar matter. The Apex Court is of the view that : “A. Service Law-Departmental Enquiry-Continuation after retirement-Held, is permissible only in those cases where departmental enquiry has been commenced during service, by issue of a charge-sheet and not by issue of mere show-cause notice -UCO Bank Officer Employees Service Regulations, 1979 Regn. 20(3)(iii)-Banks-Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. C. Service Law-Retirement/Superannuation-Retiral benefits-Payment, when departmental enquiry illegally initiated against an employee after his retirement-Enquiry held invalid and appellant Bank directed to release all retiral benefits expeditiously-Fresh proceedings against retired employee barred keeping in view that he stood retired long back in 1996-Civil Procedure Code, 1908 Or. 41 R. 33-Constitution of India, Article 142. "21. The aforementioned Regulation, however, could be invoked only then the disciplinary proceedings had clearly been initiated prior to the respondent’s ceasing to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been initiated against an officer of the back despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the legal fiction created thereunder i.e. continue “as if he was in service”. Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provisions, the delinquent officer would be deemed to be in service although he has reached his age of superannuation. The departmental proceeding, it is trite law, is not initiated merely by issuance of a show-cause notice. It is initiated only when a charge-sheet is issued (Union of India v. K.V. Jankiraman). This aspect of the matter has also been considered by this Court recently in Coal India Ltd. v. Saroj Kumar Mishra, wherein it was held that date of application of mind on the allegations leveled against an officer by the competent authority as a result whereof a charge-sheet is issued would be the date on which the disciplinary proceedings are said to have been initiated and not prior thereto. Pendency of a preliminary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulations.” 8. The Hon’ble Apex Court has clearly laid down service law relating to the departmental enquiries and services. It is very clear from the ratio of the Hon’ble Apex Court in above mentioned citations that the enquiry should have commenced during service by issue charge-sheet and not mere by show-cause notice. The departmental enquiry proceedings are not initiated merely by issuance of show-cause notice, it is initiated only when charge-sheet has been issued (Union of India v. K.V. Jankiraman). The Apex Court itself ruled in ‘Coal India Ltd. v. Saroj Kumar Mishra’ that the date of application of mind on the allegations leveled against an officer by the competent authority as a result whereof the charge-sheet is issued would be the date on which the disciplinary proceedings is said to have been initiated and not prior thereto, therefore, it is crystal clear that in the instant petition the facts are attracted to the ratio given by the Hon’ble Apex Court in case Jankiraman (Supra), therefore, there remains no doubt that the respondents have violated the legal norms and unnecessarily harassed the petitioner. Therefore, since last more than twenty five years he is being harassed and tortured by the act of respondents, therefore special cost is being imposed on the respondents as of Rs. 25,000/- (Twenty Five Thousand) to meet the ends of justice. 9. We accordingly allow the petition and quash the impugned 28.10.1996 (Annexure 18) passed by State Public Services Tribunal and also quash the order dated 19.3.1988 passed by the opposite party No. 3, Superintending Engineer, Tubewell Circle, Lucknow (Annexure 11) for the recovery of Rs. 2,67,667.84 paise and mandamus has issued against the respondent Nos. 1 to 5 to pay full pensionary benefits as prayed. 10. Accordingly, the writ petition is allowed with cost. Rs. 25,000/- Half of the cost be paid to the petitioner and rest will be credited in the account of Mediation and Conciliation Centre of this Court. The cost be paid within a period of three months from the date of order and in default of payment of cost, the District Magistrate shall realize as land revenue in accordance with order of the Court. —————