Neutral Citation No. - 2025:AHC-LKO:9229 Court No. - 6 Case :- WRIT - A No. - 1233 of 2025 Petitioner :- Rakesh Kumar Shukla @ Rakesh Kumar Respondent :- State Of U.P. Thru. Prin. Secy./Addl. Chief Secy. Deptt. Of Rural Development And 2 Others Counsel for Petitioner :- Amrendra Nath Tripathi,Ashwini Kumar Ojha,Nikhil Agnihotri Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J. 1. Heard Sri Amrendra Nath Tripathi, learned counsel for petitioner as well as learned Chief Standing Counsel for respondents. 2. It has been submitted by learned counsel for petitioner that petitioner was duly selected by the U.P. Public Service Commission on the post of Cooperative Inspector, Grade-II / Assistant Development Officer (Cooperative) vide letter dated 22.09.1992 and was further promoted to the post of Cooperative Inspector, Grade - I / Additional Cooperative Officer by order dated 20.06.2012 and further promoted to the post of Block Development Officer in the Rural Development Department on 26.09.2016. 3. It is stated that while the petitioner was posted in the district Itah, departmental proceedings were initiated against the petitioner and the charge-sheet was served on him in 22.03.2024, initially the proceedings were dropped by the State Government on 22.08.2024. 4. It is stated that the petitioner retired from service on attaining the age of superannuation on 30.04.2024 after the superannuation he is being given his provident fund, gratuity, group insurance scheme and regular pension has already been sanctioned. 5. The dispute in the present case is with regard to the amount of leave encashment has not been sanctioned to the petitioner so far. It is in this regard the petitioner has approached this Court by filing writ petition being Writ A No. 9633 of 2024 which was disposed of by this Court by means of order dated 22.10.2024 directing the respondents to consider the representation of the petitioner and decide the same within six weeks. 6. The respondents have disposed of the representation of the petitioner on 23.12.2024 rejecting the same stating that certain departmental proceedings have been proposed against the petitioner and a proposed charge-sheet has been forwarded to the State Government for its approval vide letter dated 08.11.2024. 7. It has been submitted by learned counsel for petitioner that without disputing the fact and even if any departmental proceedings have to be initiated against the petitioner, the same can be done but it would not have any impact upon the payment of the amount of leave encashment to the petitioner. He submits that a perusal of the Rule 351A and 919A of the CSR Rules would indicate that in case any pecuniary loss is caused to the government then the same can be recovered from the pension of the petitioner and there is no rule or government order which may enable the State to recover any amount from the leave encashment payable to a government servant. 8. He submits that accordingly the respondents cannot withhold the amount of leave encashment of the petitioner. 9. Learned Standing Counsel on the other hand has opposed the writ petition on the basis of written instructions received from the Commissioner, Rural Development, U.P. Lucknow and has submitted that the respondents are fully empowered to withhold the payment of leave encashment during pendency of departmental or judicial proceedings in terms of Government Order dated 19.08.2016. It is stated that according to the Government order dated 19.08.2016, in case there is any loss to the State exchequer, same can be recovered from the amount of leave encashment which is due, from the Government servant. 10. Sri Amrendra Nath Tripathi, learned counsel for the petitioner on the other hand has submitted that this aspect of the matter is no longer res-integra and implications of the aforesaid Government Order dated 19.08.2016, have been duly considered by the coordinate Bench of this Court in the case of Madhusudan Agarwal vs. State of U.P. and Others passed in Writ - A No. 36019 of 2008 (decided on 18.04.2015), where it has been held that leave encashment cannot be withheld on the ground of pendency of departmental or judicial proceedings. The Court in Madhusuedan Agarwal (supra) has held as under :- "It is admitted case that in the present matter no departmental enquiry has taken place. Only on the basis of show cause the department had proceeded into the matter and took final decision and held that the petitioner was liable to pay Rs.5,86,562/-, which is against the principle of natural justice. While in service neither preliminary nor full fledged departmental enquiry has been made in the matter. No adverse material has been brought on record against the petitioner in his career. The judgments cited by learned counsel for the petitioner fully support his case. It is not in dispute that services of the petitioner were never terminated. The petitioner continued to be in service and retired on attaining the age of superannuation. In the circumstances, the basic pre-condition for the forfeiture of gratuity under Section 4 (6) of the Gratuity Act, 1972 was also not fulfilled. It has also been held time and again that the retiral benefits like pension, gratuity or leave encashment are not bounty or grace but are earned by the employee through the years of service of a company. They are an employee's security after retirement. In Dr. Dudh Nath Pandey v. The State of Jharkhand & Ors., 2009 (2) SLJ 105 (Jharkhand), the Division Bench of Jharkhand High Court after scanning various case laws on the subject held that the conditions precedent for imposing penalty of withholding pension is that there should be a finding in departmental enquiry or judicial proceeding that the pensioner committed grave misconduct in the discharge of his duty while in office. The Court held that leave encashment also cannot be withheld since that is paid in lieu of unutilized leave as it partakes the character of salary. In Dr. Dudh Nath Pandey v. The State of Jharkhand (2007 (2) BLJR 2847), the Full Bench of Jharkhand High Court has held that there is no power for the Government to withhold Gratuity and Pension during the pendency of the departmental proceeding or criminal proceeding. There is no power with the government to withhold Leave Encashment at any stage either prior to the proceeding or after conclusion of the proceeding. In the matter of leave encashment the Full Bench of Punjab and Haryana High Court in Punjab State Civil Supplies Corporation Ltd. & Ors. v. Pyare Lal (Letters Patent Appeal No.113 of 2012) has held that the amount of leave encashment is payable to the retiring employee notwithstanding the pendency of the departmental enquiry or criminal proceedings. In the present matter, leave the question of finding, even the proper enquiry was not conducted. Only on the basis of show cause the amount has been withheld from the encashment without giving any opportunity to the petitioner, which is against the principle of natural justice. In view of the above, the order impugned dated 25.07.2007 cannot be sustained and is hereby set aside. The writ petition is allowed. The petitioner will be entitled for all the retiral benefits, which is due to him. The recovered amount shall be paid to the petitioner alongwith 9% interest calculated from the date, when it is payable till the date of its actual payment. The same shall be given to the petitioner within a period of three months from the date a certified copy of this order is produced before the authority concerned." 11. This Court has also considered the Government Order dated 19.08.2016 and it is noticed that the said Government Order will not assist the respondents in withholding payment of leave encashment to the petitioner inasmuch as there is no dispute that on the date of his superannuation neither was there any departmental proceedings pending against the petitioner and even today no departmental inquiry is pending and even according to the respondents they have only sought sanction of the Government for initiating departmental proceedings. 12. Accordingly, it cannot be said that any departmental or judicial proceedings were pending against petitioner as on date and hence there can be no valid reason for withholding payment of leave encashment which is payable and admissible to the petitioner. 13. In the light of above, this Court is of the view that impugned order dated 23.12.2024 is liable to be set aside. 14. Considering the fact that even in the impugned order dated 23.12.2024, it has only been stated that the matter pertaining to initiation of departmental inquiry against petitioner various sanctions are being sought, and same cannot be a ground in itself to withhold payment of leave encashment to the petitioner. 15. Accordingly, impugned order dated 23.12.2024, is set aside. The respondents are directed to process payment of leave encashment to the petitioner with expedition and make payment within next six weeks from the date of production of certified copy of this order before the competent authority. 16. The writ petition stands allowed. Order Date :- 12.2.2025 A. Verma (Alok Mathur, J.) Digitally signed by :- ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench