2026:HHC:25115 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No.788 of 2019 Decided on 25.06.2026 Shyam Lal Badra ...Petitioner Versus State of Himachal Pradesh and others ...Respondents Coram Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge Whether approved for reporting? 1 Yes For the petitioner: Mr. Bhuvnesh Sharma, Senior Advocate with Ms. Vishali Lakhanpal, Ms. Srishti and Mr. Shekhar Badola, Advocates. For the respondents: Mr. Vishav Deep Sharma, Additional Advocate General, for respondents No.1 to 3. Mr. Lokendar Paul Thakur, Senior Panel Counsel, for respondent No.4. Jiya Lal Bhardwaj, Judge (Oral) The petitioner, by way of present petition, has prayed for the following substantive reliefs:- “i). That the Order dated 2.04.2012 passed by the Respondent No.1 at Annexure P-20, whereby the Petitioner has been held responsible for embezzlement of the amount of Rs.3.62 lacs, may very kindly be quashed and set aside. The Office 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2026:HHC:25115 Order dated 2.04.1996 at Annexure P-4 whereby recovery of an amount of Rs.3.12 lacs was ordered to be effected against the Petitioner, letter dated 23.08.1995 whereby recovery of an amount of Rs.2.07 lacs with penal interest has been ordered to be effected from the Petitioner may kindly be quashed and set aside and the recovery of an amount of Rs.4,01,500/- effected from the Petitioner from the arrears of salary and retiral benefits of the Petitioner may kindly be ordered to be restored. ii) That the Memo dated 25.07.1994 at Annexure P-1 and the Memo dated 23.01.1995 at Annexure P-2 pertaining to the charge sheets against the Petitioner may kindly be quashed and set aside and the Petitioner may kindly be exonerated of the charges. iii) That the Respondents may also be directed to grant benefit of promotions to the Petitioner to the next higher posts of Superintendent Gr.II and Superintendent Gr.I w.e.f. due dates i.e. the persons immediate junior to him were promoted as such, with all consequential benefits and the arrears accrued on account of re-fixation of pay there under may also be ordered to be paid with interest and revision of pension. iv) That the Petitioner may also be held entitled for interest @ 18% on the delayed payment on retiral benefits due to him on 30.4.2006, actually paid in May and November, 2011.” 2. The brief facts as emerge from the pleadings are that the petitioner was appointed as Clerk with the respondents-State in the year 1966 and promoted as Senior Assistant in the year 1983. On 25.07.1994, the petitioner was issued Memo, whereby it was proposed to hold an inquiry against him under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (in short “CCS(CCA) Rules”) on the charges that the petitioner had neither applied for leave w.e.f. 02.01.1994 nor his 3 2026:HHC:25115 whereabouts were known. Thereafter, another memorandum was issued on 23.01.1995 on two articles of charge (i) that the petitioner while functioning as Senior Assistant in the District Family Welfare Bureau during the period from 05.05.1988 to 03.01.1991 made embezzlement of an amount of Rs.3,62,000/- (Rs.1,72,000/- + Rs.1,90,000/-) out of Family Welfare compensation advances for making payments to Family Welfare Beneficiaries of different methods; and (ii) that the petitioner while functioning as Senior Assistant during the year 1992 in the office of Chief Medical Officer, Shimla issued No Dues Certificate from the Accounts Section in favour of Dr. C.M. Grover (Retd.) Dental Surgeon, DDU Hospital, Shimla, stating that nothing is due against him irrespective of the fact that a sum of Rs.2,32,510/- excluding the interest on the principal amount was outstanding for recovery from him at the time of seeking voluntary retirement. It has been averred that the Memo. dated 25.07.1994 (Annexure P-1) was not served, however, the petitioner replied to the Memo. dated 23.01.1995 (Annexure P-2). 3. It has further been averred that respondent No.3 had ordered to recover the amount of Rs.3,12,000/- from 4 2026:HHC:25115 the salary of the petitioner by making a deduction @ Rs.2,500 per month from his pay from April, 1996, as evident from perusal of office order dated 02.04.1996 (Annexure P-4). 4. The petitioner made a representation against the impugned recovery before respondent No.2 on 12.11.1998 and when nothing was heard from him, he submitted another representation dated 25.10.2006 (Annexure P-6) to respondent No.1. It has also been averred that the suspension order of the petitioner dated 04.09.2000, was revoked vide office order dated 19.5.2011 (Annexure P-7), and the suspension period was ordered to be treated as period spent on duty. The permission for claiming the arrears of suspension period from 04.09.2000 to the date of his retirement i.e. on 30.04.2006 was also accorded. However, no interest was paid. Since there was alleged embezzlement of an amount of Rs.3,62,000/-, an FIR was also lodged against the petitioner and one Sh. Durga Dass Thakur and the Special Judge (Forests), Shimla, H.P. in Corruption Case No.5-S/7 of 2006, titled, State of H.P. Vs. Durga Dass Thakur and another (petitioner-accused No.2) had acquitted the petitioner and another accused for 5 2026:HHC:25115 the commission of alleged offences under Sections 409, 420, 467, 468, 471 & 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988, holding that the prosecution could not establish the charge. 5. It has also been averred that the petitioner was not released the retiral benefits, which led him to approach the Tribunal by way of O.A. No.2480 of 2006. The said OA after abolition of H.P. Administrative Tribunal came to be transferred to this Court and registered as CWP(T) No.13942 of 2008, titled, Shyam Lal Vs. State of H.P. and another, and disposed of on 01.12.2010, directing the first respondent to look into the matter and take appropriate action in accordance with law to settle and disburse the eligible benefits, due to the petitioner within three months from the date of the passing of the judgment. 6. The respondents thereafter filed an application being CMP(T) No.75 of 2011, for extension of time, which came to be disposed of on 28.04.2011 (Annexure P-11), with a direction that the undisputed amounts shall be disbursed to the petitioner within a period of two weeks from the date of production of copy of this order. Subject to this condition, the time was extended upto 31.08.2011, 6 2026:HHC:25115 making it clear that no further extension shall be granted. After the direction given by the Court, the respondents had disbursed the undisputed amount, however, to reconcile the accounts, a Committee consisting of Assistant Controller (Finance and Accounts) (in short ACF), office of CMO Solan and Superintendent Gr.II, (CMO Office), Shimla was constituted. The Assistant Controller (F&A), O/o Chief Medical Officer, Solan vide communication dated 04.08.2011 (Annexure P-14), had informed respondent No.1 that in compliance with the letter dated 02.07.2011, he had attended the office of the Chief Medical Officer on 06.07.2011 and requested him to provide the desired documents. The Superintendent, Chief Medical Officer, Shimla, who is also nominated as a member of the Committee also attended the office. Second time, he again attended the office of the Chief Medical Officer, Shimla, in connection with the matter w.e.f. 01.08.2011 to 04.08.2011 and requested to provide the necessary documents. However, the documents, as requested, were not provided to him. Thereafter, the Committee submitted a report dated 23.08.2011 (Annexure P-15) to respondent No.1 that the desired documents were not supplied, despite repeated 7 2026:HHC:25115 requests made to CMO, Shimla, but still came to the conclusion that on the basis of evidence i.e. record of the Chief Medical Officer, Shimla produced for reconciliation, the balance recovery of Rs.2,07,000/- with penal interest be recovered from the petitioner. 7. The copy of the report was supplied to the petitioner, who replied to the same stating therein that he had never stated that the accounts were submitted by him to the Chief Medical Officer, Shimla. All the payments of Family Planning were made to Smt. Vidya Devi and Smt. Uma Devi, who used to make the payments to Family Planning acceptors. It was further stated that since the original record is not available, the conclusion drawn by the Committee is erroneous and thus requested not to accept the report and the payment of Rs.3,62,000/- recovered from him and withheld by the respondents may be released in his favour. 8. However, instead of releasing the amount as requested by the petitioner, respondent No.1 passed an order on 02.04.2012 (Annexure P-20), holding that as per the inquiry report of Assistant Controller (F&A), CMO office, Solan and the report submitted by Director Health Services, 8 2026:HHC:25115 there is an inescapable inference that the petitioner was responsible for embezzlement of an amount of Rs.3,62,000/-, who remained posted in the Family Planning Section at the relevant time, who cannot be said to be unaware of such fraudulent disbursement as he was duty bound to check/verify the actual beneficiaries, as such, the appeal/ representation made by the petitioner was rejected and recovery against him was ordered to remain stand. 9. The petitioner feeling aggrieved by the order dated 02.04.2012 passed by respondent No.1 has challenged the action on the ground that before making recovery of huge amount of Rs.4,01,500/-, neither any inquiry has been conducted nor any reasonable opportunity of hearing has been afforded to him. The charges levelled against him have not been proved inasmuch as, as per the report of the Reconciliation Committee, he has wrongly been implicated. The petitioner has been condemned unheard and was falsely implicated in criminal case. No disciplinary proceedings were conducted in pursuance of Annexure P-2 till date and further the petitioner has been deprived of his promotional benefits. The persons junior to him have been promoted to the post of Superintendent Gr.II 9 2026:HHC:25115 in the year 2000. Further, the retiral claims of the petitioner have been released only in May, 2011, which were due to be paid to him immediately on his retirement on 30.04.2006, but no interest has been paid on the said amount. The recovery as well as non-grant of promotional benefits as well as denial of interest on delayed payments of retiral claims is highly unjust, illegal and contrary to the principles of natural justice. The respondents have not conducted any inquiry till date and the petitioner has retired on attaining the age superannuation on 30.04.2006. 10. Respondents No.1 to 3 filed reply to the petition and raised preliminary submissions that the petitioner has not disclosed the complete material facts. The petitioner while working as a Senior Assistant during the period from 05.08.1988 to 03.01.1991 in the District Family Welfare Bureau, Shimla, was responsible for the misappropriation of an amount of Rs.3,62,000/-. The petitioner was charge- sheeted vide Annexure P-2. The petitioner had filed the detailed reply to charge-sheet on 31.01.1995 (Annexure P- 3), however, the petitioner simultaneously took the responsibility of financial transaction of depositing the amount in the Family Planning Bureau. An amount of 10 2026:HHC:25115 Rs.50,000/- in the Government Treasury vide challan deposited on 02.03.1994 and further he offered to make good the balance recovery of Rs.3,12,000/-. The respondents have not disputed the fact that no inquiry has been conducted against the petitioner in pursuance to the charge-sheet dated 23.01.1995. It has further been stated that the charge-sheet dated 23.01.1995 was not to hold as to whether the petitioner was or was not the guilty for mis- appropriation/embezzlement of Government money of Rs.3.62 Lakhs. But the same was for initiating the departmental proceedings against the petitioner as to what penalty should be imposed upon him for such misconduct on his part as the said misappropriation/embezzlement was already proved besides one another charge for issuing a No Dues Certificate in a wrong manner. Had the misappropriation of embezzlement of Rs.3,62,000/- not been proved or admitted by the petitioner, he could not have deposited Rs.50,000/- immediately through challan and started to make good of balance amount of recovery in easy installments from his monthly salary. It has been averred that the total recovery was Rs.3,62,000/- and only an amount of Rs.2,07,000/- is remaining to be recovered. 11 2026:HHC:25115 The deduction of recovery was stopped during the period of suspension and the petitioner was allowed only the subsistence allowances as per the admissibility from time to time. The respondents did not dispute the judgment passed by the Criminal Court whereby, the petitioner was acquitted of the charges levelled against him. 11. Respondent No.4 has filed short reply to the petition and averred that the commutation of pension is not admissible with the final decision of the case. It has further been averred that respondent No.4 had revised the provisional pension and retiral gratuity. 12. The petitioner filed rejoinder to the reply filed by respondents No.1 to 3 and specifically denied that he had deposited an amount of Rs.50,000/- in the Government Treasury vide challan on 02.03.1994. It has also been averred that the petitioner has illegally been held guilty for misappropriation and embezzlement of Rs.3,62,000/- without holding any inquiry solely at the instance of one Sh. Durga Dass Thakur, the then District Family Planning Officer, as evident from a perusal of Annexure PR-2 (Page 148). 13. I have heard the learned counsel for the parties 12 2026:HHC:25115 and also perused the record carefully. 14. It is not in dispute that as per memorandum dated 23.01.1995 (Annexure P-2), the Disciplinary Authority had proposed to hold an inquiry against the petitioner with respect to an embezzlement of an amount of Rs.3,62,000/- and also the charge that he had issued No Dues Certificate in favour of Dr. C.M. Grover, irrespective of the fact that a sum of Rs.2,32,510/- excluding the interest was outstanding against him, which was to be recovered from him at the time of seeking voluntary retirement. It is also not in dispute that the respondents did not conduct any inquiry before starting making recovery of the amount from the petitioner. It is a settled law that any order, which has civil/evil consequences, before passing an order, a show cause notice has to be issued to the affected person. 15. No doubt in the present case, the petitioner was issued a memorandum dated 23.01.1995 (Annexure P-2) and the same was replied to by the petitioner. If the petitioner accepted the charges, then the Disciplinary Authority was not required to proceed further. However, when the petitioner did not accept the charges, the Disciplinary Authority was required to proceed with the 13 2026:HHC:25115 matter and conduct an inquiry and after the conclusion of the inquiry, the enquiry report was to be supplied to the petitioner, who had a right to make representation against the same and only thereafter, the Disciplinary Authority had a right to impose any penalty including making recovery of the amount. 16. In the present case, no inquiry was conducted and the respondents started making recovery showing as if the petitioner had deposited an amount of Rs.50,000/- on 02.03.1994, which fact has specifically been disputed by the petitioner and no document has been placed by the respondents that indeed the petitioner had deposited the amount. 17. The Hon’ble Supreme Court in recent judgment in Jai Prakash Saini versus Managing director, U.P. Cooperative Federation Ltd. and others, 2026 SCC OnLine SC 505 has held that in the enquiry , the employer/department would have to take steps first to lead evidence against the workmen/ delinquent charged and give an opportunity to him to cross-examine those witnesses and only thereafter, the workmen/delinquent would be asked to lead any evidence and submit an 14 2026:HHC:25115 explanation. Since no witness was examined, the enquiry stood vitiated. The relevant paras of the judgment reads as under: “17. From the decisions of this Court in Sur Enamel (supra) and Kharak Singh (supra), followed in Chamoli District Cooperative (supra), which deals with similar service rules as are applicable here, it is now settled that unless the charged employee accepts his guilt in clear terms, an enquiry on the charges drawn against him would have to be held. In the enquiry, the employer/department would have to take steps first to lead evidence against the workmen/delinquent charged and give an opportunity to him to cross examine those witnesses. Only thereafter, the workmen/delinquent shall be asked whether he wants to lead any evidence and/or submit an explanation about the evidence led against him. Even in a case based solely on documentary evidence, unless the relied upon documents are admitted by the charged employee, a witness would have to be examined to prove those documents and when so examined, the witness would have to be tendered for cross-examination. 18. In the instant case, we find that the department had not produced any witness in the enquiry even though the charges levelled upon the appellant were denied by him. 15 2026:HHC:25115 Therefore, in our view, the enquiry stood vitiated. Once the enquiry stood vitiated, the consequential order of punishment/recovery cannot be sustained. We therefore allow this appeal. The impugned judgment and order of the High Court is set aside. The writ petition of the appellant stands allowed to the extent indicated below. The order of dismissal and consequential recovery is set aside. The Federation is, however, at liberty to hold a de novo enquiry, if it so desires, within a period of six months from the date of this order. If the Federation does not hold de novo enquiry as permitted above, the appellant shall be entitled to reinstatement with benefit of continuity in service including arrears of salary after adjusting suspension allowance, if any, paid already. In case the Federation chooses to hold an enquiry, it shall reinstate the appellant and place him under suspension till completion of the enquiry and during this period pay suspension allowance as may be payable in accordance with law. In case de novo enquiry is held, other service benefits including arrears of salary as well as benefits of continuity in service shall depend on the outcome of the enquiry.” 18. In the present case, the respondents have admitted that no enquiry was conducted and thus, no 16 2026:HHC:25115 amount could have been recovered from him, since the petitioner had not admitted the charges. The respondents have not produced any documents on record that the petitioner had admitted the charges. So far as the plea taken that the petitioner had deposited the amount of Rs.50,000/-, has specifically been denied by him and thus, the order making recovery is illegal, arbitrary and unjust. 19. After the retirement of the petitioner on 30.04.2006 when he was not released the retiral benefits, he had made a representation before respondent No.1. to defray his retiral benefits, however, when no decision was taken by the respondents-State, the petitioner had approached the H.P. State Administrative Tribunal by way of Original application, which came to be transferred to this Court and registered as CWP(T) No.13942 of 2008, titled, Shyam Lal Vs. State of H.P. and another and the same was disposed of on 01.12.2010, directing the first respondent to pay due and admissible undisputed amounts to him within three months. However, the respondents had not released the amount within three months and filed an application for extension of time, which came to be disposed of on 28.04.2011, with a direction to disburse the 17 2026:HHC:25115 undisputed amount to the petitioner within a period of two weeks from the date of production of the copy of the order and the time was extended, subject to the said condition till 31.8.2011. 20. After the direction given by the Court, respondent No.1 with a view to settle the matter had constituted a Committee consisting of two persons i.e. Assistant Controller(F&A), Solan and Superintendent Grade- II, of the office of the Chief Medical Officer, Shimla to unravel the truth. Despite various requests made by the Assistant Controller(F&A), the documents were not supplied to him and he wrote a letter dated 04.08.2011 (Annexure P- 14), to respondent No.1 stating that in the absence of documents, it is impossible to reconcile the accounts. The letter dated 04.08.2011, reads as under: No.HFW-SML-FIR/1/97- Olo Chief Medical Officer, Shimla Distt. Shimla To Principal Secretary (Health) to the Govt. of Himachal Pradesh. Dated the Shimla 4.8.11 Subject:- Release of services benefit/pension as per Hon,ble High Court decision dated 1.12.2010 in CWP(T) 13942/08 in 2480/06 titled Shyam Lal Badra Vs State of H.P. and Ors. Sir 18 2026:HHC:25115 Kindly refer to your Endst. No. Health-A-(3)-45/2010 dated 2 July 2011. In this regard I have to inform your good self in compliance to above that I attended Chief Medical Officer's office Shimla on 6.7.2011 and requested Chief Medical Officer Shimla to get the following record available for reconciliation. The Superintendent Chief Medical Officer office Shimla who is also nominated a member in the committee with AC(F&A) Solan. Second time I attended the O/O Chief Medical Officer, Shimla in connection with the same w.e.f. 1.8.2011 to 4.8.2011. But the same hasn't provided till date. 1. Vouchers file for the period 1985 to 1990 2. Affidavit file -do- 3. Misc. Purpose file -do- 4. FP advance register -do- 5. Accounts file for the year 1991-92 and 1992-93 6. Incentive file 7. Cash Books pertains to the period under reference. 8. Advance register 9. APR Register/ Acquaintance roll 10. Source from where the amount received/ drown under the scheme Family planning. 11. Inquiry report 12. Inquiry report - Director Department inquiry detailed report 13. Audit report if pointed out by A.G. Shimla. 14. where about/ completes address of Smt. Vidya Devi Smt. Uma Devi. 15. Main cash book of o/o Chief Medical Officer Shimla for the period under reference. But the record as mentions above has not made available for reconciliation. In absence of above record it is impossible to reconcile the accounts. The Chief Medical Officer Shimla apprised that the record has not been supplied by the vigilance department. It is for favour of Information please. -Sd- -Sd- Superintendent Assistant Controller (F&A) Olo Chief Medical Officer, O/O Chief Medical Officer Shimla Dutt. Shimla Solan Distt. Solan 21. A perusal of aforesaid letter reveals that the 19 2026:HHC:25115 officer had desired the documents to find out that if there is a mismatch in the accounts and when the same were not made available to him, he had specifically observed that in the absence of the above record, it is impossible to reconcile the accounts. It is not known that if the record was not made available, on what basis they subsequently came to the conclusion that as per the record of Chief Medical Officer, Shimla, produced for reconciliation, the balance recovery of Rs.2,07,000/- with interest is to be recovered from the petitioner. The report dated 23.08.2011 submitted by the Committee is reproduced as under: Confidential Court case To The Principal Secretary (Health), to the Government of Himachal Pradesh. Dated the Shimla 23 August-2011 Subject:- Release of Service benefit/pension as per Hon'ble High court decision dated 1.12.2010 in CWP (T) 13942/08 in OA 2480/06 titled Shyam Lal Badra v/s state of H.P./ & others. Sir. I have the honour to reference to your office Endst. No. Health A-E(3)45/2110 dated 6.7.2011. Apropos to verbal discussion held with worthy Principal Secy. (Health) to the Govt. of Himachal Pradesh on 20.8.2011 at 3 PM in his office chamber. As desired by the worthy Principal Secretary (Health), the report with reference to representation of Sh. SL Badra Retd. Sr. Assistant (Retd.) dated 6.7.2011 is as under:- 20 2026:HHC:25115 Sr. No. The version of Sh. SL Badra Factual positions as per the record available in CMO's office Shimla 1 Sh. SL Badra Sr. assistant has (Retd.) stated that he has Submitted the accounts of Rs. 3.62 Lacs, which was pointed by AGHP and special investigation team of Directorate. From the perusal and examination of the record of CMO Shimla. The recovery of Rs. 2.07 laks (with interest) still stands against Sh. SL Badra. 2 He has submitted "detail of amount on account of award money to the acceptors available in the records were use to the adjustment of account rendered by". To the tune of Rs. 3.62 lacs showing that Smt. Uma Devi and Vidya Devi has submitted the account to Chief Medical Officer Shimla There is no such account of adjustment stands in the office of Chief Medical Officer, office Shimla. 3 The lists which he has enclosed with his application showing portion "A" as bill No. against which advance withdrawn and portion "B" as bill No. vide which adjusted. The lists which are shown as portion as "A" at Annexure- (A) as withdrawal amount and portion "B' as adjustment at Annexure (B) are fictitious on the following grounds:- a) The list which has been enclosed are the details which have been prepared by special team of audit as well as AGHP as the total amount paid on account of family planning award to the beneficiaries whose available in the record for Rs. 1,90,000/-. This list comprises four pages in all and having shown 37 beneficiaries under family planning programme. This list has 8 21 2026:HHC:25115 columns 1 to 8 columns which stands as under :- Column No. 1 for Sr. No, Column No 2, Name & Address, Column No. 3 Bill No. against which FP advance, column No. 4 Amount, column No. 5 bill No. vide which adjusted, column No. 6 Amount embezzled, Column No 7 whether Affidavits produced and column No 8 for Remarks. This clearly shows the amount of award money emblazed by using duplicate receipt of family planning acceptor. 4 The second list which have been shown Rs. 1.72 lacs vide para 3:- of Audit report Similarly as shown in previous para there are also 8 columns in all and described as similar as narrated in the previous para in column No 8 there is a description embezzled amount from Sr. No 1 to 8 comprising of 8 leaves where in remarks columns these descriptions of sterilization cases/ acceptors who have not been under gone either vasectomy/ tubectomy operation and thus embezzled amount by using duplicate receipt by the official under reference. Hence this is not an account of adjustment. 5 The decision of Hon'ble High Court in the case titled as CWT (T) 13942/08 in OA 2480/06 titled Shym Lal Badra v/s state The Hon'ble High Court vide judgment dated 1.12.2010 acquitted the official in other cases for 22 2026:HHC:25115 of Himachal Pradesh Shimla-9 & other. which the FIR has been lodged vide No. 1/97. Besides other cases the case of embezzlement of Rs. 3.62 lacs also figure in FIR separately. The Director of Health Services through Govt. of Himachal Pradesh has replied to Hon'ble High Court that the recovery of embezzled amount is being effected from the official concerned. Detailed of amount recovered is as under :- Rs. 50,000/- deposited vide Challan No. 14 dated 3.3.94 1. The Block Medical Officer Matiana through official salary recovered Rs. 1,05,000/- Total Rs. 1,55,000/-recovered from the official. 6 The Hon'ble High court in his judgment illustrated in para No. 3&4 of Page No 2 of judgement issued by Hon'ble High court in which it is highlighted that "the loss caused to the Govt. to the tune of Rs. 3.62 lac steps have already bee initiated. According to petitions the same is now pending in appeal is before the Court". 1. On the basis of the document evidences like No. 1 Charge Sheet No. 2 the order of The Director of Health Services as well as govt. in the matter that the amounts be recovered from Sh. S.L. Badra Immediately. 2. The report of DSP Vigilance, who has inquired in to the charges against Sh. SL Badra Retd. Sr. Asstt, and proved that he has used the duplicate receipt in case of Sh. Jagdish Thakur S/o Sh. Sham Lal Thakur R/o House No. 135/11 Tarna Hill Distt. Mandi. 23 2026:HHC:25115 2. The Audit para of AGHP:- Para No. 2 Rs. 1.90 lac Para No.3 Rs. 1.72 lacs Request was also made to Chief Medical Officer Shimla to produce the record pertains to the case immediately so that re-conciliation work could be completed (Please see Annexure) But on the repeated request time and again to CMO Shimla did not make the relevant record like bill register, copies of bills/ vouchers/ cash books bill register/ APRS of beneficiaries who had been under gone sterilization during this period of 1988 to 1992 available till date. The situation has already been, communicated to worthy Principal Secretary (Health) vide letter dated 4.8.11. CONCLUSION:- On the basis of evidence i.e. record of Chief Medical Officer Shimla produced for re-conciliation it is worth mentioning here that the balance recovery of Rs. 2.07 lacs with panel interest be recovered from Sh. SL Badra. 22. Once the record was not produced, on what basis the Committee had come to the conclusion that balance recovery of Rs.2.07 Lacs with penal interest be recovered from the petitioner. The petitioner was supplied with the report and he replied to the same denying the fact that the amount is due from him. However, respondent No.1 while accepting the report(s) submitted by the Committee and by the Director Health Services, passed an order on 02.04.2012 (Annexure P-20), rejecting the representation/appeal preferred by the petitioner by holding that, there is an 24 2026:HHC:25115 inescapable inference that the petitioner was responsible for embezzlement of the amount of Rs.3,62,000/-. 23. Once, the Committee constituted had given the specific finding that it is impossible to reconcile the accounts, without the record mentioned in communication dated 04.08.2011 (Annexure P-14), it was wrong to conclude later on that a sum of Rs.2.07 Lakh is the balance recovery from the petitioner. Thus, the order dated 02.04.2012 passed by respondent No.1 on the basis of the report, which is not based on original record, is wrong and illegal and is unsustainable in law. 24. As already noticed above, once the Disciplinary Authority had issued the memorandum dated 23.01.1995 (Annexure P-2), the penalty even with respect to the recovery could have been imposed only after conducting the proper inquiry. The plea taken by the respondents that the same was to be done only for the purpose of imposing penalty is concerned, the said plea cannot be accepted for the simple reason that even recovery of an amount of Rs.3,62,000/- is the virtual penalty imposed upon the petitioner, which has been imposed without conducting any inquiry. 25 2026:HHC:25115 25. In the present case, as already noticed above, once the petitioner has been acquitted of the offences, specifically holding that the prosecution could not establish the charge against him, the amount of recovery could not have been done. As per the own document issued by the respondents, the petitioner, who was earlier put under suspension, his suspension was revoked vide office order dated 19.05.2011, treating the said period spent on duty. Once the petitioner has been treated to be on duty, though admittedly the order had been passed after the retirement of the petitioner, but he cannot be denied the benefit of promotion only on account of the fact that he was put under suspension and the respondents had proposed to initiate an inquiry against him, which is never concluded as has been specifically admitted by the respondents, while filing reply to the petition. 26. The petitioner who got retired from service on 30.4.2006, has been paid the retiral benefits only after the petition instituted by him, which was disposed of by the Court on 01.12.2010, that too, after 28.04.2011, when the application filed by the respondents was disposed of with a specific direction that the undisputed amount shall be 26 2026:HHC:25115 disbursed to him within a period of two weeks from the date of production of copy of the order by the petitioner before the Director and the time was extended subject to the said condition till 31.08.2011. The respondents had disbursed the retiral benefits only after the said order passed by the Court on 28.04.2011. Since the petitioner has been deprived of his retiral benefits, he is entitled to interest on the said undisputed amount from the date when the same fell due to him. The respondents could have disbursed the undisputed amount to the petitioner, but the same was not done and it was done only after a direction being given by this Court and the claim raised by the petitioner in the petition that he is entitled to interest, deserves to be accepted. 27. The petitioner has also claimed in the petition that the respondents be directed to grant him promotion to the next higher post(s) of Superintendent Gr.II and Superintendent Gr.I with effect from due dates i.e. the persons immediate juniors to him were promoted. Once the suspension order dated 04.09.2000 was revoked by the respondents on 19.05.2011 and it has specifically been held that the suspension period of the petitioner shall be treated 27 2026:HHC:25115 as period spent on duty, the petitioner is also held entitled to promotion ignoring the period of suspension as well as the recovery. 28. Consequently, the present petition is allowed with the following directions: (a) That the order dated 02.04.2012 (Annexure P-20), passed by respondent No.1, is quashed and set aside; (b) That the respondents are directed to refund the amount recovered from the petitioner and also an amount of Rs.2,07,000/- illegally withheld along with interest @6% per annum from due date till actual payment; (c) That the respondents are directed to pay interest @ 6% per annum on the amount, which has been disbursed in favour of the petitioner, after three months from the date of his retirement till actual payment; (d) That the respondents are directed to consider the case of the petitioner for promotion, ignoring the order of suspension dated 04.09.2000 and the alleged recovery to be made against him; and (e) The respondents are directed to complete the entire exercise within three months from today and in case the amount illegally recovered from him and the amount due is 28 2026:HHC:25115 not released in his favour within three months from today, the respondents shall pay interest @ 9% per annum from due date till actual payment. 29. No order as to costs. Pending application(s), if any, shall also stand disposed of. 25 th June , 2026 ( Jiya Lal Bhardwaj ) (Kiran) Judge