ORDER : Manish Mathur, J. 1. Heard Sri Anurag Shukla, learned counsel for the petitioner and the learned State counsel appearing on behalf of the opposite parties. 2. The present petition has been filed seeking the quashing of the order dated 24.08.2004 whereby orders for recovery from gratuity of the petitioner have been passed alongwith the order for deduction of the pension of the petitioner by 30%. Further relief for not recovering the amounts indicated in the impugned order has also been sought. 3. As per the averments made in the writ petition, enquiry proceedings were initiated against the petitioner by issuance of the charge-sheet dated 05.09.1991 containing only one charge relating to the advance payments made by the petitioner to the contractor for execution of certain works authorized by the Department. It has been stated that reply to the same was submitted by the petitioner on 13.04.1992 whereafter the enquiry report dated 14.01.1993 was submitted against the petitioner. It has been stated that thereafter the matter kept pending and in the meantime the petitioner superannuated on 31.08.1997 whereafter the impugned order has been passed on 24.08.2004 i.e. after 13 years from the initiation of enquiry proceedings and after a lapse of 7 years from the date of superannuation. The primary grounds taken in the petition are that the findings recorded by the enquiry report are against the very charge-sheet and that the entire proceedings have been concluded without affording proper opportunity of hearing to the petitioner. It has also been stated that the impugned order is also not in consonance with Regulation 351-A of the Civil Services Regulations. 4. To the aforesaid effect, learned counsel for the petitioner has submitted that a bare perusal of the impugned order will make it clear that the same has been passed merely on the basis of the enquiry report and that the reply submitted by the petitioner against the show-cause-notice issued after the submission of the enquiry report has been totally ignored particularly the provisions which were quoted in the reply with regard to the entitlement of the petitioner to make advance payments in terms of Paragraph No.457 of the Financial Handbook. It has also been submitted that the order impugned makes it clear that it has been passed without any application of mind and is virtually a non-speaking order. It has also been submitted that the order impugned makes it clear that it has been passed without any application of mind and is virtually a non-speaking order. The learned counsel for the petitioner has also submitted that the impugned order could have been passed only in terms of the Regulation 351-A of the Civil Service Regulations in the condition of a loss having been caused to the State exchequer and in the absence of any such finding, the impugned order is vitiated. In support of his submission the learned counsel for the petitioner has relied upon the judgments of the Hon'ble Supreme Court as well as of this Court. 5. The learned State counsel appearing on behalf of the opposite parties has contradicted the submissions made by the learned counsel for the petitioner and has submitted that a perusal of the enquiry report clearly establishes the fact that advance payments were made by the petitioner to the contractors concerned without any work having been initiated. Even as per the inspection of the site concerned, as recorded in the enquiry report, it has been brought out that the advance payments were made and in pursuance of which work was carried out hurriedly on account of the inspection which was to take place. The learned State counsel has also submitted that the proper procedure during the enquiry proceedings has been followed and that the petitioner was accorded full opportunity of hearing to submit his case before enquiry officer. It has been submitted that the petitioner was also permitted opportunity to produce documents and to cross-examine the witness that were produced during the enquiry proceedings. The learned State counsel has submitted that merely on account of the certain procedural lapses, the entire enquiry proceedings cannot be vitiated. To the aforesaid effect, he has relied upon the case of State of Bank of Patiala and others vs. S. K. Sharma reported in 1996 (3) SCC Page 364). 6. I have heard the learned counsel for the parties and perused the record. 7. So far as the enquiry report is concerned, there is a specific recording of a finding to the effect that at the time of inspection, work for which the advance payments had been made was in progress. The same fact has also been indicated in the charge-sheet dated 05.09.1991. 7. So far as the enquiry report is concerned, there is a specific recording of a finding to the effect that at the time of inspection, work for which the advance payments had been made was in progress. The same fact has also been indicated in the charge-sheet dated 05.09.1991. On account of the aforesaid statements specifically recorded by the officials is concerned, it can be safely deduce that the work for which the advance payments had been made was under progress at the time when the inspection was made. It is pertinent to indicate that the sanction of the work was accorded on 11.05.1990 for which advance bill amounting to Rs. 3.5 lakhs had been cleared on 28.05.1990 and the actual payment of which was made on 01.06.1990. The inspection of the aforesaid works was carried out on 12.07.1990 as indicated in the charge-sheet itself, which also indicates that the work of piles for laying of the foundation was under progress. After the recording of the aforesaid finding in the enquiry report, the enquiry officer has suddenly placed reliance on the preliminary enquiry report dated 08.06.1990 to indicate that at the time of clearing bill on 20.05.1990 the work had not started. It is on the aforesaid basis that the entire advance payment said to have been made at the behest of the petitioner has been held to be invalid. Furthermore, the enquiry officer has also recorded that he himself visited the site and found the work to be under progress but the only deficiency recorded by him is that the aforesaid works were not in accordance with the procedure. 8. A perusal of all the aforesaid facts as indicated in the enquiry report itself clearly indicates the fact that after the advance payment had been made on its being sanctioned by the petitioner, admittedly the work for which the advance payment had been made ensued and it is nobody's case that the work for which the advance payment had been made did not commence. It is trite to say that the very purpose of making an advance payment as would be clear by the nomenclature itself is that the same has to be made in advance i.e. before the start of the purpose for which it is being made. It is trite to say that the very purpose of making an advance payment as would be clear by the nomenclature itself is that the same has to be made in advance i.e. before the start of the purpose for which it is being made. In the present case, once the enquiry report itself clearly establishes the fact that the work for which the advance payment was made did actually commence, then to hold the petitioner responsible for any illegality does not stand to reason. 9. The submission of the learned counsel for the petitioner that the enquiry report is totally bland in nature inasmuch as, neither the replies submitted by the petitioner has been considered nor the documents of the witnesses which were produced during the enquiry proceedings have been referred to appear to be correct. A perusal of the entire enquiry report indicates that there is not even a whisper with regard to the evidence on which the petitioner has been held guilty nor even the witnesses that were produced during the enquiry proceedings have been referred to. On account of the aforesaid facts, the finding recorded by the enquiry officer with regard to the guilt of the petitioner as recorded in the third last paragraph of the enquiry report also is unsupported by any documentary or other evidence. 10. It is the specific case of the petitioner that even the documents which were relied in the enquiry report were not only unverified but were also photocopies of the originals and were placed during the proceedings without any comparison with the originals which were never produced. The objections of the petitioner with regard to taking such documents on record as clearly established in the letter dated 10.09.1991 annexed as Annexure No.4 to the writ petition. The learned counsel for the petitioner has also drawn attention to the fact that unverified documents were relied upon in the enquiry proceedings as was indicated by means of the aforesaid letter with the submission that the aforesaid objections were brushed aside by the enquiry officer. 11. It is settled law that enquiry proceedings are quasi judicial in nature wherein the enquiry officer has to record his findings objectively after considering all the material evidence on record and in a completely impartial manner. 11. It is settled law that enquiry proceedings are quasi judicial in nature wherein the enquiry officer has to record his findings objectively after considering all the material evidence on record and in a completely impartial manner. The purpose of an enquiry is not to hold a delinquent employee guilty, rather it is for the purposes of finding out the truth behind the charges which have been imputed against an employee. For the aforesaid purpose, it is necessary for the enquiry officer to take into account all the material on record and also to deal with the objections which are made before him by the delinquent employee. Brushing aside and ignoring the objections which are made by the delinquent employee during the enquiry proceedings clearly indicate the mindset of holding the delinquent employee guilty of the charges which is completely against the very purpose of the enquiry. A perusal of the entire enquiry report does not indicate that the objections which were recorded by the petitioner have been taken into account or have been dealt with. The very said fact itself vitiates the entire enquiry proceedings. 12. In support of his submissions, the learned counsel for the petitioner has relied upon the case of Roop Singh Negi Vs. Punjab National Bank and others reported in 2009 (2 SCC Page 570) in which the Hon'ble Supreme Court has clearly held that an enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during the preliminary investigation against the accused by itself cannot be treated to be evidence in disciplinary proceedings without the examination of any witness to prove the documents. It has been further held that the conclusion of the enquiry report has to be certified by evidence and although the provisions of Evidence Act are not applicable in the said proceedings, the principles of natural justice are required to be complied with. The Courts exercising the power of judicial review are entitled to consider as to whether the enquiry report while inferring the commission of misconduct has taken into consideration irrelevant facts or has relied upon evidence which has neither been corroborated nor proved. The Courts exercising the power of judicial review are entitled to consider as to whether the enquiry report while inferring the commission of misconduct has taken into consideration irrelevant facts or has relied upon evidence which has neither been corroborated nor proved. The Hon'ble Supreme Court has also held that it is well settled that the power of judicial review cannot be refused to be exericsed by the High Courts although it would be lawful to do so. In the same judgment the Hon'ble Supreme Court has held that a decision must be arrived at on some evidence which is legally admissible and the same cannot be relied upon merely on the basis of surmises and conjectures. Suspicion, as is well known, however high may be, can under no circumstances be held to be substitute for legal proof. 13. The learned counsel for the petitioner has also relied upon the case of Anant R. Kulkarni vs. Y. P. Education Society and others reported in 2013 [6 SCC Page 515] in which the Hon'ble Supreme Court has held that the purpose of holding an enquiry is not only with a view to establish the charges levelled or to impose a penalty but is to be conducted with the object of recording the truth of the matter and in that sense the outcome of an enquiry may either result in establishing or deestablishing the charges against the delinquent employee and hence result in his exoneration. Therefore, fair action in the enquiry proceedings is of paramount necessity. 14. The learned counsel for the petitioner has relied upon the Division Bench judgment in the case of Dr. Smt. Abha Gupta vs. State of U.P. and others reported in [2013 LCD Page 2568] and Arvind Kumar Pandey vs. State of U.P. and others reported in [2013 LCD Page 1864] which are also on the similar points. 15. So far as the impugned order dated 24.08.2004 is concerned, a perusal of the same makes it apparent that the same is based entirely on the enquiry report without taking into consideration the submissions advanced by the petitioner against the enquiry report. The entire order appears to have been passed in a completely mechanical manner without any application of mind even to the objections which had been raised by the petitioner in reply to the show-cause-notice. The entire order appears to have been passed in a completely mechanical manner without any application of mind even to the objections which had been raised by the petitioner in reply to the show-cause-notice. The order does not indicate any subjective satisfaction of the authority concerned with regard to the guilt of the petitioner for the charge levelled against him. No evidence, documentary or otherwise has been adverted to in the impugned order which therefore can be said to be a completely non-speaking order. 16. Passing an order of a major penalty against the delinquent employee without considering or adverting to the material on record or even taking the objections of the delinquent employee into consideration clearly amounts to pre-determined mind of the authority concerned and can be said to be unsustainable in law. In quasi judicial proceedings, the entire purpose of which is to record objectively and in a fair manner the considerations of guilt or otherwise of the delinquent employee, it is incumbent upon the disciplinary authority to apply an independent mind to the question before it as also to see as to whether the enquiry proceedings have been held in a fair and transparent manner and after affording full opportunity of hearing to the delinquent employee. It is the duty of the disciplinary authority to see as to whether the principles of natural justice have been followed in enquiry proceedings or not. For the said purpose, the disciplinary authority can not pass an order merely taking the enquiry report into consideration. Such a fact clearly indicates the non-compliance of fairness in the enquiry proceedings. 17. The learned counsel for the opposite parties has placed reliance upon the judgment of State of Patiala and others vs. S. K. Sharma reported in 1996 (3 SCC Page 364) in which the Hon'ble Supreme Court has recorded principles in context of the disciplinary authorities and orders of punishment. The reading of the aforesaid judgment clearly indicates that the principles enunciated therein are with regard to the violation of procedure during the enquiry proceedings, which the Hon'ble Supreme Court has said, should not be treated to be so material as to hold the enquiry proceedings to be vitiated. 18. The reading of the aforesaid judgment clearly indicates that the principles enunciated therein are with regard to the violation of procedure during the enquiry proceedings, which the Hon'ble Supreme Court has said, should not be treated to be so material as to hold the enquiry proceedings to be vitiated. 18. A perusal of the aforesaid judgment clearly indicates the fact that it has been passed on account of merely procedural lapses whereas in the present case the matter pertains not only to minor procedural lapses but also with regard to fairness of the enquiry proceedings and of placing reliance upon unsubstantiated material or on evidence which could not have been taken into account in the present case. A procedural lapse of the nature indicated in the aforesaid judgment would be minor in nature inasmuch even if taken into account would not change the ultimate outcome of the enquiry proceedings. However, as seen in the present case, the procedural lapses go to the root of the matter and if taken into account would probably have changed the very result of the enquiry proceedings and therefore, cannot be said to be minor in any manner. In view of aforesaid, I am of the respectful opinion that the aforesaid judgment would be inapplicable in the present case. 19. So far as the law pertaining to remand of such matters is concerned in which the enquiry proceedings have been found to be vitiated on account of any grave procedural lapses, reliance has been placed by learned counsel for the petitioner in the case of Allahabad Bank and others vs. Krishna Narayan Tewari reported in 2017 (2) SCC Page 308) in which the Hon'ble Supreme Court has held that on account of passing of a number of years such as in the present case and particularly when the delinquent employee is not keeping well, it would not only be harsh but would tantamount to denial of justice to him in case remand is ordered. In the present case also it has been informed that the petitioner is now 82 years of age is completely paralyzed and is being fed through rice tube and also owing to the fact that the matter pertains to the year 1990 and the petitioner having superannuated in the year 1997, I am of the view that the aforesaid judgment of the Hon’ble Supreme Court would be squarely applicable in the present case and it would be inequitable to remit the matter to the authorities concerned for a decision afresh. 20. In view of the above, a writ in the nature of Certiorari is issued quashing the impugned order dated 24.08.2004 and a further writ in the nature of Mandamus is issued to the opposite party no.1, i.e. the Principal Secretary, Public Works Department, Lucknow for a direction to re-fix the pay scale of the petitioner as revised from time to time on a notional basis only, however, the actual payments of pensionary benefits etc. shall be made to the petitioner after refixation of the pay scale without effecting any recoveries therefrom. The recoveries already effected from the petitioner shall be refunded to him alongwith the payment of post retiral benefits. The aforesaid proceedings are to be completed within a period of six months from the date a copy of this order is produced before the said opposite parties. 21. The learned counsel for the petitioner has informed that the petitioner who is now 82 years of age is completely paralyzed and is being fed through rice tube, and has executed a power of attorney in favour of his son Sri Vikas Seth. In the aforesaid circumstances, the opposite party no.1 shall keep the aforesaid considerations in mind and the power of attorney executed in favour of Sri Vikas Seth. 22. It is also relevant factor that the petitioner is engaged in litigation against a completely illegal and void order since long on account of grave procedural lapses on the part of the opposite parties and as a consequence of which has not been paid his salary. 22. It is also relevant factor that the petitioner is engaged in litigation against a completely illegal and void order since long on account of grave procedural lapses on the part of the opposite parties and as a consequence of which has not been paid his salary. Had the petitioner been paid his salary alongwith admissible emoluments for this period, it was but natural that after spending a portion of said salary, he would have saved a part of it which naturally would have brought him further an amount in the nature of interest on such capital but due to the existence of the punishment order of the authority concerned, the petitioner was not only deprived of his capital source i.e. his salary but also the interest from savings on such capital. Although the rate of interest admissible on savings even in nationalized banks prior to the year 2000 was more than 10% per annum but in view of the provisions of Code of Civil Procedure, 1908 and the Interest Act, 1978. I am of the view that the petitioner should be entitled to at least 6% w.e.f. 01.09.1997 till date of actual payment per annum owing to the fact that the petitioner would have definitely spend a major part of his salary for personal expenditure. 23. In view of the aforesaid observations, the writ petition stands allowed.