JUDGMENT : 1. Heard Sri Hemendra Pratap, learned counsel for the petitioner and Dr. Uday Veer Singh, learned Additional Chief Standing Counsel for the State-respondents. 2. The order under challenge is the Pension Payment Order (in short P.P.O.) dated 07.03.2019 issued after retirement of the petitioner on 31.12.2017 from the post of Assistant Engineer (Civil) wherein the pensionery benefits and gratuity have been sanctioned at the reduced rate thereby withholding a sum of Rs.6,93,270/-. Further, per petitioner's counsel the consequential benefits admissible after retirement as per law has not been paid to the petitioner, therefore, the petitioner prayed that those benefits with interest be paid. 3. The brief facts of the case are that the petitioner was initially appointed on the post of Junior Engineer (Civil) on 07.12.1977 against the sanctioned post, strictly in accordance with law. Thereafter, he joined on such post on 27.12.1977. 4. The services of the petitioner were regularized on such post as he was initially appointed on ad hoc basis on 10.12.1990 relating back with effect from 22.03.1984. 5. The petitioner was promoted on the post of Assistant Engineer (Civil) on 29.07.2015, thereafter, he was allowed the second promotional pay-scale and A.C.P. with grade pay of Rs.7600/-. 6. On 26.02.2016, the disciplinary proceedings were instituted against the petitioner. 7. Learned counsel for the petitioner has drawn attention of this Court towards Annexure Nos. 6, 7, 8 & 9 of the writ petition, which are the orders dated 09.08.2018, 29.08.2018, 13.09.2018 and 16.11.2018 respectively, making it abundantly clear that after the conclusion of the departmental inquiry the petitioner was fully exonerated on the charge and thereafter consequential orders were passed that no disciplinary/departmental proceedings or any criminal proceedings are pending against the petitioner. However, before such orders having been passed the petitioner superannuated on 31.12.2017 after completing the age of 60 years from the post of Assistant Engineer (Civil). 8. It has also been noted that vide order dated 07.07.2018 the pay of the petitioner in the revised pay-scale was fixed at Rs.1,12,400/-with effect from 01.01.2016 on 01.07.2017, as order to this effect has been annexed as Annexure No.10 to the writ petition. 9. Annexure Nos.11 and 12 are the orders dated 12.03.2018 and 28.07.2018 to the effect that the petitioner was sanctioned provisional pension, 40% of the commuted value with 10% addition having been deducted. 10. 9. Annexure Nos.11 and 12 are the orders dated 12.03.2018 and 28.07.2018 to the effect that the petitioner was sanctioned provisional pension, 40% of the commuted value with 10% addition having been deducted. 10. The Executive Engineer concerned has issued the office memo dated 28.07.2018 (Annexure No.14 to the writ petition) sanctioning the additional provisional gratuity to the petitioner to the tune of Rs.9.00 lacs and the impugned P.P.O. dated 07.03.2019 has been issued to this effect. 11. Learned counsel for the petitioner has apprised the Court that the petitioner while working on the post of Junior Engineer (Civil) in the year 2015, one misconceived recovery order dated 28.05.2015 against him had been passed on the basis of some miscellaneous advance. However, the petitioner submitted reply to the Executive Engineer and when no proper order has been passed, he filed the claim petition bearing Claim Petition No.1086 of 2015 before the State Public Service Tribunal, which was decided vide judgment and order dated 28.09.2015 thereby quashing such impugned orders dated 28.05.2015 and 04.06.2015 providing liberty to the Disciplinary Authority to issue show cause notices to the petitioner informing him the substance of imputations on the basis of which the petitioner was held liable for recovery within a period of two months then the petitioner would submit reply within a period of one month and thereafter the inquiry was to be concluded within the period of two months. As per the Tribunal, the whole exercise was to be concluded within a period of six months from the date of a certified copy of the order is served. 12. As per learned counsel for the petitioner, the said inquiry in terms of judgment and order dated 29.08.2015 has not been initiated and the amount, so recovered from the petitioner of Rs.96,000/-, has not been refunded to the petitioner. 13. As per learned counsel for the petitioner, by means of impugned P.P.O. dated 07.03.2019, the D.C.R. gratuity has been sanctioned by counting the total length of 27 years service of the petitioner instead of 33 years which the petitioner actually rendered withholding a sum of Rs.6,93,270/- for no cogent reasons. 14. 13. As per learned counsel for the petitioner, by means of impugned P.P.O. dated 07.03.2019, the D.C.R. gratuity has been sanctioned by counting the total length of 27 years service of the petitioner instead of 33 years which the petitioner actually rendered withholding a sum of Rs.6,93,270/- for no cogent reasons. 14. Therefore in view of the above, the petitioner has prayed that the impugned P.P.O. dated 07.03.2019 be quashed and the opposite parties be directed to sanction and pay the commutation of pension to the petitioner on the basis of age 61 years, 40% of pension to be commuted the same having been deducted, out of provisional pension sanctioned by the opposite party No.5 vide order dated 12.03.2018 and 28.07.2018 (Annexure Nos.11 and 12 to the writ petition). 15. Sri Hemendra Pratap, learned counsel for the petitioner has submitted also that even if for argument sake, it is admitted that some notices have been issued to the petitioner by the Executive Engineer pursuant to the order being passed by the Tribunal, even then such notices may not be sustained in the eyes of law for simple reason that the Executive Engineer was not a Appointing Authority of the petitioner as the Appointing Authority of the petitioner was the State Government. Therefore, such show cause notices were without jurisdiction and being violative of the Rule 6 of U.P. Government Servant (Discipline & Appeal) Rules, 1999 (here-in-after referred to as the "Rules, 1999"). Learned counsel for the petitioner has referred Rule 6 of the Rules, 1999. For brevity, such rule is being reproduced here-in-below:- "6. Disciplinary authority. The appointing authority of a Government servant shall be his disciplinary authority, who, subject to the provisions of these rules, may impose any of the penalties specified in Rule 3 on him: Provided that no person shall be dismissed or removed by an authority subordinate to that by which he was actually appointed: Provided further that the Head of Department notified under the Uttar Pradesh Class II Services (Imposition of Minor Punishment) Rules, 1973, subject to the provisions of these rules, shall be empowered to impose minor penalties mentioned in Rule 3 of these rules:" 16. Per contra, Dr. Per contra, Dr. Uday Veer Singh, learned Additional Chief Standing Counsel for the State-respondents has submitted that the services of the petitioner were regularizd only on 10.12.1990 and as per the rules, particularly in view of Regulation 361 of Civil Service Regulations (in short C.S.R.), the ad-hoc services cannot be counted for the purposes of pensionery benefits as qualifying services. Further the P.P.O. dated 07.03.2019 has been prepared in the light of aforesaid regulation and other provision. As such while calculating the service rendered by the petitioner for the purpose of pensionery benefits, the opposite parties have not committed any illegality. Regulation 361 of C.S.R. provides as under:- "361. The service of an officer does not qualify for pension unless it conforms to the following three conditions- (a) the service must be under Government, (b) the employment must be substantive and permanent and (c) the salary must be paid by Government." 17. Dr. Singh has further submitted that the second aspect involved in the matter is the recovery orders being passed by the Executive Engineer in pursuance with the report of the Committee consisting three officers. However, per Dr. Singh, earlier also the Committee consisting three Assistant Engineers was constituted which submitted a report dated 22.02.2014. In furtherance thereto, the order dated 27.05.2015 was issued following consequential order dated 04.06.2015. The aforesaid orders were admittedly challenged by the present petitioner before the State Public Service Tribunal, U.P., Lucknow by way of filing claim petition bearing Claim Petition No.1086 of 2015. The claim petition was allowed by the learned Tribunal quashing the aforesaid orders. However, the opposite parties were given liberty to proceed with the matter in accordance with the direction given in the order dated 28.09.2015 by the Tribunal. The time schedule was also framed to initiate and conclude the enquiry. The enquiry was to be concluded within six months from the date of communication of the order of Tribunal by serving the certified copy. 18. Dr. Singh has also submitted that there is no dispute that the petitioner assailed the recovery order before the Tribunal and the Tribunal allowed the claim petition of the petitioner granting six months time to conclude the departmental inquiry. As per Dr. Singh, in compliance of the aforesaid order of the Tribunal dated 28.09.2015, the show cause notice was issued to the petitioner on 27.11.2015, which has not been denied by the petitioner. As per Dr. Singh, in compliance of the aforesaid order of the Tribunal dated 28.09.2015, the show cause notice was issued to the petitioner on 27.11.2015, which has not been denied by the petitioner. When no response was received, another notice dated 11.02.2016 was issued to remind the show cause notice dated 27.11.2015. On 27.01.2017, another notice was issued to the petitioner to submit reply. As a last opportunity the letter was issued on 15.09.2018 to the petitioner but he did not turn up. So, per Dr. Singh, the petitioner was given ample opportunity to defend his case regarding recovery of total amount of bitumen Rs.4,79,475/-and such recovery was inclusive of the amount embezzled/misappropriated to the tune of Rs.1,07,400/-towards MNREGA. 19. As per Dr. Singh, instead of defending the aforesaid charge of recovery the petitioner preferred letters to the department to adjust/deduct the amount from the gratuity and clear the other pensionery benefits. Therefore, a sum of Rs.6,93,270/- has been adjusted from the amount of gratuity of the petitioner and in view of the above, no illegality can be attributed to the impugned order. 20. Heard learned counsel for the parties and perused the material available on record. 21. During the course of arguments, learned Additional Chief Standing Counsel was asked that even if the petitioner had shown his willingness to recover/adjust the amount from the amount of gratuity if the same is recoverable, as to whether the recoverable amount has been determined by the Disciplinary Authority strictly in accordance with law and as to whether any formal order to that effect has been issued providing the copy thereof to the petitioner seeking explanation from him. 22. The aforesaid query of the Court was based on the trite law to the effect that if the recoverable amount has not been determined by the Disciplinary Authority, or if it is determined but the formal order to that effect has not been provided to the incumbent seeking explanation from him, the amount may not be recovered/adjusted from the amount of gratuity of an employee, as it would not only against the principles of natural justice but would be against the public policy. Further, if any impugned order entails civil consequences, such order may not be issued without providing an opportunity of hearing to that effect. 23. Further, if any impugned order entails civil consequences, such order may not be issued without providing an opportunity of hearing to that effect. 23. Learned Additional Chief Standing Counsel has tried to defend the impugned action of the opposite parties by submitting that since the petitioner had already given his undertaking to recover/adjust the recoverable amount, therefore, no such formal order has been issued to the petitioner seeking explanation to that effect. So far as the point of factum of determination of recoverable amount is concerned, learned Additional Chief Standing Counsel has submitted that the petitioner was aware about the amounts, therefore, the determination of total recoverable amount has not been made. 24. As per the learned Additional Chief Standing Counsel, a sum of Rs.4,79,475/-was recoverable for loss of bitumen; sum of Rs.1,07,400/-was recoverable towards the loss of MNREGA scheme and other amounts claimed from the petitioner were related to the incident/misshaping committed during his supervision when he was in service. Therefore, the total amount recoverable was Rs.6,93,270/-. 25. This Court is unable to comprehend as to how the aforesaid amount, which has been recovered from the petitioner, may sustain in the eyes of law when no exercise of determination of the amount recoverable has been made and no formal order to that effect could have been issued, therefore, no question arises for affording an opportunity of hearing in consonance with the principles of natural justice. 26. The arguments of learned Additional Chief Standing Counsel that ad hoc services of the petitioner cannot be counted for the purpose of pensionery benefits as qualifying service does not sustain in the eyes of law inasmuch as it is trite law that the services rendered by an employee on substantive post on ad hoc basis and later on the same are regularized under the rules, such ad hoc period shall be counted for the purpose of pensionery benefits as the qualifying service. 27. The Division Bench of this Court in re: Krishna Kant Pandey vs. State Public Services Tribunal, U.P. Lucknow and others reported in [2018 (36) LCD 109 has held by following the dictum of Hon'ble Supreme Court in re: Amarkant Rai vs. State of Bihar and others reported in (2015) 8 SCC 265 that retrospective regularization can be given to the employee as per rules. 28. 28. After the judgment and order of the Tribunal having been passed, the Executive Engineer is said to have issued some notices against the petitioner to which the petitioner is said to have not replied and the contention of learned counsel for the petitioner that since the said notices were without jurisdiction being issued by the incompetent authority, therefore, the petitioner was not required to submit the reply to the notices. 29. Sri Hemendra Pratap has rightly referred Rule 6 of the Rules, 1999, which categorically provides that the Appointing Authority of the government servant shall be his Disciplinary Authority and only the Disciplinary Authority may impose any penalty. In the present case, undisputedly the Appointing Authority of the petitioner is the State Government. The second proviso of Rule 6 empowers the Head of the Department to impose minor punishment. In the case in hand, the Head of the Department would be the Engineer-in-Chief. The Engineer-in-Chief had also not issued any show cause notice to the petitioner but the Executive Engineer has issued the notice, who is incompetent authority in view of the Rule 6 of the Rules, 1999. 30. Therefore in view of the dictum of Hon'ble Supreme Court in re: Union of India & others vs. B. V. Gopinath reported in [2014 (1) LBESR 75 (SC)] the show cause notices would be non est as the same are without jurisdiction. The relevant paras-47 and 49 are being reproduced here-in-below:- "47. Further, it appears that during the pendency of these proceedings, the appellants have, after 2009, amended the procedure which provides that the charge memo shall be issued only after the approval is granted by the Finance Minister. 49. Although number of collateral issues had been raised by the learned Counsel for the appellants as well the respondents, we deem it appropriate not to opine on the same in view of the conclusion that the charge-sheet/charge memo having not been approved by the disciplinary authority was not est in the eye of law." (emphasis supplied) 31. 49. Although number of collateral issues had been raised by the learned Counsel for the appellants as well the respondents, we deem it appropriate not to opine on the same in view of the conclusion that the charge-sheet/charge memo having not been approved by the disciplinary authority was not est in the eye of law." (emphasis supplied) 31. Since the Tribunal had allowed six months time to conclude the denovo inquiry by providing show cause notice to the petitioner, such inquiry must have been conducted and concluded within the time frame and in view of the Full Bench judgment of this Court in re: Abhishek Prabhakar Awasthi vs. The New India Assurance Company Limited and others reported in [ 2014 (32) LCD 405 ] , the Disciplinary Authority shall be precluded for conducting the departmental inquiry and in that case the imputation against the employee shall loose its efficacy. 32. In the present case, instead of Disciplinary Authority/Appointing Authority or Head of the Department, the show cause notice has been issued by the incompetent officer, which is non est in the eyes of law. Therefore, the amount so withheld by the authority could have not been withheld and the petitioner should have been paid his entire post retiral dues counting his total length of service of 33 years at least after 13.09.2018 or 16.11.2018 (Annexure Nos.8 & 9 to the writ petition) whereby the State Government and Head of the Department itself observed that the petitioner retired from service on 31.12.2017 and on superannuation no departmental, administrative or criminal proceedings are pending against him, even no prosecution is pending against him. Therefore the delay of making payment of retiral dues would be unreasoned and uncalled for, hence, the petitioner would be entitled for interest on delayed payment. 33. The purpose of awarding interest is that the interest would be the compensation which is allowed in law for use of money belonging to another or for delay in paying the said money after it has become double. 33. The purpose of awarding interest is that the interest would be the compensation which is allowed in law for use of money belonging to another or for delay in paying the said money after it has become double. If the reason to withhold the pensionery benefits are unreasonable having no cogent reason to that effect, the employee who has suffered, should be compensated in the eyes of law for the simple reason that the money belonging to the employee, which should have been utilized by him but has been utilized by the department having no legal lien on that after the retirement of an employee. 34. The Hon'ble Supreme Court in re: S.K. Dua vs. State of Hariyana reported in (2008) 3 SCC 44 , vide para-14 has observed as under:- "14. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well-founded that he would be entitled to interest on such benefits. If there are Statutory Rules occupying the field, the appellant could claim payment of interest relying on such Rules. If there are Administrative Instructions, Guidelines or Norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence of Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of "bounty" is, in our opinion, well-founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents." (emphasis supplied) 35. The Division Bench of this Court in re: Radhika Devi vs. Union of India & others reported in [2002 (1) LBSER 949 (All)] has observed in para-2 as under- "2. The petitioner has prayed for family pension, which has been paid, and now she claims interest due to late payment. Interest is the normal accretion on capital and it is not a penalty or punishment. If a certain amount is payable at a certain time, then the person to whom it is paid in time would invest it and earn interest. Interest is the normal accretion on capital and it is not a penalty or punishment. If a certain amount is payable at a certain time, then the person to whom it is paid in time would invest it and earn interest. However, if there is delay in payment then the person who retained the money would have earned interest on the same. Hence, he has to pay not only the principal amount but also interest on the same." (emphasis supplied) 36. In view of the facts and circumstances considered here-in-above and also in view of the dictum of Hon'ble Supreme Court as well as of this Court, I am of the considered opinion that the impugned P.P.O. dated 07.03.2019 does not sustain in the eyes of law so far as it calculated the total length of service of the petitioner as 27 years instead of 33 years and made deduction of Rs.6,93,270/-, therefore, the same is hereby quashed. 37. A writ in the nature of mandamus is issued commanding the opposite parties to sanction and pay full admissible D.C.R. gratuity on the basis of length of service of 33 years of service and also to refund the amount of Rs.6,93,270/-, which has been withheld, with interest at the rate of 6% per annum. 38. The opposite parties are also commanded that the petitioner shall be paid all consequential service benefits, for that, the appropriate order shall be passed by the Competent Authority. 39. Since the denovo inquiry has not been conducted by the Disciplinary Authority/Appointing Authority in terms of judgment and order dated 28.09.2015 passed by the State Public Service Tribunal in Claim Petition No.1086 of 2015 within the stipulated time, therefore, no such inquiry can be conduced against the petitioner and the petitioner shall be treated exonerated from the said charges. 40. The compliance of this order shall be made within a period of two months from the date of production of a certified copy of this order. 41. Accordingly, the writ petition succeeds and is allowed. 42. No order as to costs.