Tirath Raj Tripathi vs State Of U.P. And 3 Ors. on 5 October, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved on 04.07.2017

26.07.2017

Delivered on 05.10.2017

Court No. – 26

Case :- WRIT – A No. – 9126 of 2015

Petitioner :- Tirath Raj Tripathi

Respondent :- State Of U.P. And 3 Ors.

Counsel for Petitioner :- Anand Kumar Singh

Counsel for Respondent :- C.S.C.

Connected with

Case :- WRIT – A No. – 14350 of 2014

Petitioner :- Retired Head Constable (P) 38 Kare Singh

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- K.K. Singh,Ambrish Kumar Sharma

Counsel for Respondent :- C.S.C.

Hon’ble Mrs. Sangeeta Chandra,J.

1. These two writ petitions have been filed by the retired employees of the State Government involving similar issues and therefore, although the facts of both writ petitions are different, they are being considered together. In Writ A No. 9126 of 2015, the arguments were heard and judgment was reserved on 04.07.2017 and in Writ A No. 14350 of 2014, the arguments were heard and judgment was reserved on 26.07.2017.

2. In Writ Petition No. 9126 of 2015, the petitioner-Tirath Raj Tripathi has prayed for issuance of a writ in the nature of mandamus directing the Superintending Engineer, Kanpur Circle, PWD, Kanpur Nagar to pay retiral benefits, gratuity and regular final pension with interest to the petitioner forthwith.

3. The petitioner Tirath Raj Tripathi was working as Senior Assistant in Public Works Department, Kanpur on 31.7.2002 when he was implicated in a criminal case where the U.P. Vigilance Establishment lodged an FIR against him on 31.7.2002 which was registered as Case Crime No. 324 of 2004 under Section 7/13(1D) read with section 13(2) of the Prevention of Corruption Act, 1988 and the petitioner was sent to jail on 31.7.2002 and released on bail on 27.8.2002. On the basis of his being sent to jail, the petitioner was suspended on 31.7.2002. The petitioner filed a Writ Petition No. 46319 of 2002 challenging the suspension order and this Court set aside the suspension order on 21.11.2002 and he was reinstated in service on 5.6.2003. Thereafter, the petitioner continued to perform his duty and was retired on 31.11.2012 from the post of Head Assistant. Since his retirement, he has filed several representations, but his pension, gratuity and other retiral dues have not been released only due to the reason of pendency of criminal case against the petitioner under the Prevention of Corruption Act, 1988.

4. It is the case of the petitioner that pendency of any judicial proceedings cannot be a ground to exercise the power under Section 351-A of the Civil Service Regulation for withholding retiral dues. The petitioner has placed reliance upon a judgment rendered by a Coordinate Bench of this Court on 3.2.2015 in Writ-A No. 67791 of 2014 where in a similar matter, this Court after placing reliance upon two Division Bench Judgments of this Court having found that since in the criminal case, there is no allegation of loss to the Government and therefore no recovery has to be made from the petitioner (which is the only exception recognised by this Court, in the Division Bench judgments relied upon by it) has directed that the petitioners’ retiral benefits be released to him and his final pension be fixed and paid.

5. On the other hand, Sri B.K. Yadav, learned standing counsel has pointed out from the counter affidavit that while the petitioner was working as Senior Assistant in Public Works Department, Kanpur on 31.7.2002, the petitioner was caught red handed for taking bribe of Rs. 500/- by the Vigilance Establishment and a criminal case was registered as mentioned aforesaid, which is pending before the Competent Court. The Group Insurance and provident fund dues have already been paid to the petitioner, provisional pension is also being given. However, release of gratuity, final pension and other dues cannot be made till such time that the criminal case is pending before the Competent Court.

6. In Writ Petition No. 14350 of 2014, Retired Head Constable Kare Singh has prayed for a mandamus to the authorities to pay his retiral dues as he retired on 28.02.2010.

7. A counter affidavit has been filed by the State respondents wherein they have stated that the petitioner stands convicted in Sessions Trial No. 313 of 2001, (State of U.P. Vs. Ramwati) connected with Sessions Trial No. 252 of 2003 (State of U.P. Vs Kare Singh) and the petitioner has been sentenced under various Sections of the I.P.C., with rigorous imprisonment of 10 years and fine. The petitioner has filed rejoinder affidavit to the said counter affidavit, in which he says that it was totally private dispute in which the petitioner has been convicted and against the judgment and order dated 24.01.2009 of the Sessions Court a Criminal Appeal No. 509 of 2009 Kare Singh Vs. State of U.P., has been filed before this Court which is pending and in which he has been bailed out.

8. The counsel for the petitioner has filed a copy of the order passed in bail application dated 23.04.2012, wherein it has come out that Kare Singh has been convicted under Section 363 I.P.C., with 5 years rigorous imprisonment along with fine, and under Section 366 I.P.C. with 7 years rigorous imprisonment with fine, and under Section 376 I.P.C., with 10 years rigorous imprisonment with fine all sentences to run simultaneously.

9. From a perusal of the order dated 23.03.2012, it is evident that this Court has only granted bail to the petitioner. The conviction of the petitioner has not been stayed by this Court. This Court has only taken into account that the appeal was not likely to be heard in near future and the maximum sentence was 10 years and the petitioner had undergone almost half of the same and, therefore, he has been given the benefit of the judgment rendered by the Hon’ble Supreme Court and released on bail.

10. The counsel for the petitioner has brought on record a judgment rendered by Hon’ble Supreme Court in the case of State of Jharkhand Vs. Jitendra Kumar Srivastava in Civil Appeal No. 6007 of 2013 decided on 14th of August, 2013 to say that since no recovery can be made for any alleged misconduct by the petitioner during his service, pension can not be withheld only during pendency of the criminal proceedings. There is no rule permitting the Government to withhold pensionary dues during pendency of criminal proceedings.

11. There are admittedly three Rules which govern the payment of pension to U.P. Government Servant, firstly there are Civil Services Regulations Relating to Pension, which although were notified before Independence were adopted by the State of U.P. and are still valid Regulations for determining payment of pension to U.P. Government Servant. The second set of Rules relevant for the purpose are U.P. Retirement Benefit Rules, 1961 and the third set of Rules relevant are the U.P. Liberalised Pension Rules, 1961. Under Article 351 of the Civil Services Regulations, it is provided that future good conduct is an implied condition of every grant of a pension.

12. The relevant extract of Civil Service Regulation insofar as are material to decision of the issues involved in these writ petitions are being quoted herein-below:

“41. Pension- Except when the term “Pension” is used in contradistinction to gratuity, “Pension” includes Gratuity.”

“351. Future good conduct is an implied condition of every grant of a pension. The State Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner be convicted of serious crime or be guilty of grave misconduct.

The decision of the State Government on any question of withholding or withdrawing the whole or any part of pension under this regulation shall be final and conclusive.”

“351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if 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.”

……….”(b) judicial proceedings shall be deemed to have been instituted:

(i)in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal court ; and

(ii)in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to a civil court.”

“351-AA. In the case of a Government Servant who retires on attaining the age of superannuation or otherwise and against whom any departmental or Judicial proceedings or any enquiry by Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement a provisional pension as provided in Regulation 919-A may be sanctioned.”

“919-A. (1) In case referred to in Regulation 351-AA the Head of Department may authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government servant or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was placed under suspension.

(2) The provisional pension shall be authorised for the period commencing from the date of retirement upto and including the date on which after conclusion of departmental or judicial proceeding or the enquiry by the administrative Tribunal; as the case may be, final orders are passed by the competent authority.

(3) No death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings or the enquiry by the Administrative Tribunal and issue of final orders thereon.

(4)Payment of provisional pension made under clause (1) above shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of the proceedings or enquiry referred to in clause (3) but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or withheld either permanently or for special period.”

13. The relevant Rules of Retirement Benefit Rules 1961 are being quoted thus:

“2. Application. (2) The pension provisions contained in Civil Service Regulations shall continue t apply to officers governed by these rules except in so far as they are inconsistent with any of the provisions of these rules.”

“9. Miscellaneous.- (1) Governor will have the right to effect recoveries from a gratuity or family pension sanctioned under Parts II and III in the same circumstances as recoveries can be effected from ordinary pension under Article 351A of the Civil Service Regulations.

(2) No gratuity or family pension may be granted under Parts II and III if the officer was dismissed or removed for misconduct, insolvency or inefficiency. Compassionate grant may, however, be made under these Parts in accordance with Article 353 of the Civil Service Regulations.

(3) A gratuity or family pension shall be sanctioned under parts II and III after giving due regard to the provision of Article 470 of the Civil Service Regulations.

(4) Death-cum-retirement gratuity admissible in addition to pension calculated at the rate given in the annexure shall be treated as gift and recoveries of any Government dues may be effected from the same.

(5) The existing rules which apply to the grant of an ordinary pension shall also apply in respect of a gratuity or family pension that may be sanctioned under parts II and III in so far as such rules are not inconsistent with the Rules.”

14. The relevant Rule of U.P. Liberalized Pension Rules 1961 is being quoted herein-below:

10. Miscellaneous (1) Government will have the right to effect recoveries from a gratuity or family pension sanctioned under Parts I and II in the same circumstances as recoveries can be effected from an ordinary pension under Article 351-A of the Civil Service Regulations.

(2) No gratuity or family pension may be granted Parts I and II if the officer was dismissed or removed for misconduct, insolvency or inefficiency. Compassionate grant may, however, be made under these Parts in accordance with Article 353 of the Civil Service Regulations.

(3) A gratuity or family pension shall be sanctioned under Parts I and II after giving due regard to the provisions of Article 470 of the Civil Service Regulations.

(4) the existing rules which apply to the grant of an ordinary pension shall also apply in respect of a gratuity or pension that may be sanctioned under Parts I and II in so far as such rules are not inconsistent with these Rules.”

15. The earliest decision of a Division Bench, which this Court finds dealing with the issue; whether payment of gratuity can be withheld? or whether pension or part thereof can be forfeited after the retirement of U.P. Government Servant ? is in the case of Krishna Kumar, through LR vs State of U.P., 1998 (4) AWC 495. This Court considered the provisions of section 4 of the Payment of Gratuity Act, 1972 and relied upon Sub-Section (6) of Section 4, which says that gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to or destruction of property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused. This Court held that Section 4 (6) of the Act clearly empowers the Government to forfeit to the extent of damage or loss caused by the employee to the Government, the amount of gratuity due to his willful omission or negligence causing any damage or loss.

16. The aforesaid Division Bench also relied upon Article 351 A of the Civil Services Regulations and found that the petitioner therein was served with a charge sheet dated 30.01.1991 before his retirement on 31.05.1991. In the departmental proceedings, the charges were found proved. Thus, the provisions of Regulation 351 A were applicable and deduction from pension was permissible besides withholding of gratuity under sub-section (6) of Section 4 of Payment of Gratuity Act, 1972.

17. A Division Bench of this Court in Bangali Babu Mishra vs State of U.P. and others decided on 05.12.2002, reported in 2003 (3) AWC 1760 was considering the case of a U.P. Government Servant, who was caught in a trap case and FIR was lodged, in which investigation was going on and the charge sheet was filed in court on 06.11.2002. No disciplinary proceedings were initiated against the petitioner therein and he was allowed to continue in service throughout. Although, he was suspended for sometime when he was in jail, such suspension was stayed by interim order providing therein that in case charge sheet in the criminal case is served on the petitioner, it shall be open to the authorities to approach the court for vacation of the interim order. The State did not move any application for vacation of interim order because charge sheet in the criminal case was not served upon the petitioner, but had been submitted in court on 06.11.2002.

18. The writ petitioner therein retired on reaching the age of superannuation on 28.02.2001. His post retiral benefits were however, withheld and he approached this Court saying that such post retiral benefits cannot be withheld in the absence of any Rule. This Court considered the Government Order dated 28.07.1989, in particular para 3 (3) thereof, which related to departmental/judicial or administrative enquiry pending on the date of his retirement. This Court held that such Government Order did not refer to criminal proceedings at all. It distinguished between “judicial” or “departmental” proceedings and pendency of “criminal” proceedings and observed that Article 470 B of the Civil Services Regulations had been deleted. With regard to provisions of Regulation 351 A of the Civil Services Regulations, it observed that it related only to a right of the Government for ordering recovery from the pension of an officer of any amount on account of losses found in “judicial” or “departmental” proceedings having been caused to the Government by negligence or fraud of such officer during service.

19. It held that neither “departmental” nor “judicial” proceedings were initiated or pending against the petitioner and there was no ascertainment of loss caused to the Government by his negligence or fraud and since there was no provision in the Service Rules or Government Orders or any other law. It provided that even if the petitioner is subjected to any punishment in criminal proceedings, no recovery of loss could be made as there was no allegation of loss being caused to the Government due to negligence or fraud of the writ petitioner though the criminal proceedings had indeed been initiated as the petitioner had been caught in a trap case for an alleged amount of Rs. 100/- in the year 1990. A direction was issued that entire retiral dues including gratuity, pension, commutation, leave encashment, Group Insurance etc. be paid to the petitioner within a specified period.

20. A Division Bench of this Court in Bhagwati Prasad Verma vs State of U.P. through Secretary, Basic Education decided on 10.09.2017, reported in 2008 (3) ALJ 150, held that gratuity as distinct from pension, cannot be withheld under the Regulation 351-A. The Division Bench of this Court in the case of Bhagwati Prasad Verma relied upon the decision of the Supreme Court in the case of State of U.P. vs U.P. University Colleges Pensioners’ Association, 1992 (2) SCC 729, to hold that the observations made by the Supreme Court in the case of Jarnail Singh vs Secretary, Ministry of Home Affairs and others, 1993 (1) SCC 47 cannot be relied upon. Jarnail Singh’s case related to the Regulations of the Central Government and would not be applicable to the State of U.P. It went on to say that the Supreme Court in the case of U.P. University Colleges Pensioner’s Association (supra) has observed that pension and gratuity are conceptually different. The Division Bench held on the basis of judgment as afore-cited, that under Rule 351 A pension alone can be taken away and gratuity is not part of pension, and made an observation in paragraphs 23 and 24 of the said judgment, that Rule 10 of the U.P. Liberalized Pension Rules, 1961 and Rule 9 of the U.P. Retirement Benefits Rules, 1961 clearly referred to gratuity, in contradistinction with pension. Under Article 41 of the Civil Services Regulation, pension can be said to be included gratuity only when it is not used in contradistinction to pension and it came to the conclusion that under the procedure prescribed under Article 351 A of the Civil Services Regulation, only pension or part thereof, can be withheld and not gratuity.

21. It distinguished the judgment rendered in the case of the Krishna Kumar (Decd.) through LR. vs State of U.P. and others, 1998 (4) AWC 595, on the ground that the Division Bench in the afore-cited judgment of Krishna Kumar had relied upon sub-section (6) of Section 4 of the Payment of Gratuity Act, but had lost sight of section 2(e) of the said Act, which clearly provided therein that the Act shall not apply to persons holding posts under the Central or State Government.

22. In Mahesh Bal Bhardwaj vs U.P. Co-operative Federation Ltd. and another, 2007 (10) ADJ 561 (LB)(DB), the Division Bench of this Court relying upon the decision rendered in Bangali Babu Mishra vs State of U.P. and others, 2003 (3) AWC 1760, and another Division Bench decision in Kanti Prasad Sharma vs U.P. Co-operative Dairy Federation and Milk Union Centralised Services and another, (Writ Petition No. 1519 (SB) of 2002 decided on 26.04.2004); held that under the Payment of Gratuity Act, gratuity cannot be withheld of member of serving under Co-operative Federation in the absence of any Rules framed in this regard permitting withholding the retiral benefits during criminal proceedings.

23. A Division Bench of this Court in Sri Pal Vaish vs U.P. Power Corporation Ltd. and another (Civil Misc. Writ Petition No. 52565 of 2000), reported in 2009 (9) ADJ 45, considered both Krishna Kumar and Bhagwati Prasad Verma and came to the conclusion that the judgment rendered by the Hon’ble Supreme Court in the case of Jarnail Singh was a larger Bench decision consisting of three judges, wherein judgments by earlier two Division Benches in the case of D.V. Kapoor vs Union of India and others, 1990 (4) SCC 314 and F.R. Jesuratnam vs Union of India and others, 1990 (Supp) SCC 640, were considered, and the Supreme Court also considered the definition of ‘pension’ given under the Constitution of India, which was similar to the definition of pension given under the Rule 3 (1) (o) of Central Civil Services (Pension) Rules, 1972, which was as follows :

“Pension includes Gratuity except when the term pension is used in contradistinction to gratuity, but does not include Dearness Allowance.”

24. It was held by the Division Bench in the case of Sri Pal Vaish, that pension as defined under Rule 3(1) (o) of the Central Civil Services Rules had been similarly defined in Rule 41 of the Civil Services Regulations applicable to State of U.P. and which in turn was the same as defined in the Constitution.

25. The Division Bench of this Court in Sri Pal Vaish (supra) considered the U.P. Retirement Benefit Rules, 1961 and also the U.P. Liberalised Pension Rules, 1961 and held that recovery can be made from death-cum-retirement gratuity and from family pension in similar circumstances as recovery can be effected from ordinary pension under Article 351 A.

26. The Division Bench in the case of Sri Pal Vaish referred to the Supreme Court decision in the case of State of U.P. and others vs Harihar Bhole Nath, JT 2006 (9) SC 567, wherein the Supreme Court had observed that pension cannot be sanctioned as a matter of course, in view of the Regulation 470 of the Civil Service Regulations and it can be withheld if the services of an employee are not satisfactory.

27. The Division Bench of this Court in Lal Sharan vs State of U.P. and others, 2012(1)ESC 57 (All) relying upon the judgments rendered by the Hon’ble Supreme Court in the case of Deoki Nandan vs State of U.P., AIR 1971 SC 1409; State of Punjab vs Iqbal Singh, AIR 1976 SC 667 and D.S. Nakara vs Union of India, 1983 (1) SCC 305 held that pension and gratuity are in the nature of right to property and right of pensioner to their payment does not depend upon the discretion of the Government, but is governed by the Rules. It referred to Regulation 351 A of the Civil Services Regulations and considered the facts of the case of the writ petitioner therein, where it was not disputed that on the date of retirement or even till the date of institution of the said writ petition, there was any inquiry whatsoever, pending against the petitioner. In the case of the petitioner, whose retiral benefits were only withheld on the ground that enquiry can be initiated against the retired employee after conclusion of fact finding enquiry initiated for non-utilisation of certain funds (not mis-utilisation of funds), the Court held that neither criminal proceedings had been initiated nor disciplinary proceedings had been initiated and only under some misconception, retiral benefits had been withheld, which could not be done.

28. The Division Bench of this Court in Narendra Kumar Singh vs State of U.P. through Principal Secretary and others (Writ A No. 12574 of 2013 ) decided on 05.10.2013 relied upon the judgment in Mahesh Bal Bhardwaj vs U.P. Co-operative Federation Ltd. and another 2007 (10) ADJ 561 and held that since no departmental proceedings were pending against the petitioner and only criminal case was pending and that too on the charge that writ petitioner had not taken any preventive action being Inspector of Police to check a house grabbing by miscreants, and there was no charge of financial irregularity, post retiral benefits cannot be withheld. It considered the Government Order dated 28.10.1980 and held that this Government Order provides for payment of interim pension where the departmental proceedings are pending. It further found that there was no Government Order nor any provision which provided that even if, no departmental proceedings is pending still pension could be withheld.

29. A Division Bench of this Court on 07.12.2013 in Special Appeal (Defective) No. 1278 of 2013 State of U.P. and others vs Jai Prakash, 2014 (1) ADJ 207 has considered the provisions of Article 351, 351-A, 351-AA and 919 A in the following manner:

“Now, regulation 351 reserves to the State Government the right to withhold or withdraw pension or a part thereof upon a pensioner being convicted of a serious crime or being guilty of a grave misconduct. Conviction of a serious crime within the meaning of regulation 351 postulates that after a criminal trial, a pensioner has been found guilty of an offence involving a serious crime. In other words, there has to be a judicial determination by which the pensioner is convicted of a serious crime. Regulation 351-A reserves to government the right to withholding or withdrawing of pension and the right to order a recovery from the pension, if a pensioner is found in departmental or judicial proceedings to be guilty of grave misconduct or to have caused a pecuniary loss to the Government by his misconduct or negligence. Hence, regulation 351-A operates in two areas:

(i) if the pensioner is found in departmental or judicial proceedings to be guilty of grave misconduct;

or

(ii) if the pensioner is found in departmental or judicial proceedings to have caused pecuniary loss to the government by his misconduct or negligence, during service or on re-employment.

Government has the power to withhold or withdraw the pension and a power to recover any pecuniary loss suffered. Regulation 351-A postulates that there has to be a determination in departmental or judicial proceedings. Regulation 351-AA deals with a situation where a departmental or judicial proceeding or any enquiry by the Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement in which case a provisional pension under regulation 919-A may be sanctioned. Where a departmental or judicial proceeding is pending on the date of retirement, regulation 351-AA stipulates that a provisional pension would be admissible and the modalities for the payment of a provisional pension are prescribed under regulation 919-A. Regulation 919-A (1) makes a reference to the situation which is referred in regulation 351-AA and authorises the payment of a provisional pension by the Head of Department. The provisional pension is to be authorised for the period commencing from the date of retirement upto and including the date of conclusion of departmental or judicial proceedings or, as the case may be, the enquiry by the Administrative Tribunal. Regulation 919-A (3) contains an expression prohibition on the payment of death-cum-retirement gratuity to a government servant until the conclusion of the departmental proceeding, judicial proceeding or as the case may be, an enquiry by the Administrative Tribunal. Regulation 41 provides that except when the term ‘Pension’ is used in contradistinction to gratuity, ‘Pension’ would include gratuity. Consequently, regulation 919 (3) which contains a bar on the payment of gratuity till the conclusion of a departmental or judicial proceeding would allow the payment of a provisional pension stipulated in clause (1) of regulation 919-A.

The learned Single Judge, in the present case, has proceeded on the basis that neither in regulation 351 nor in regulation 351-A is a withholding of gratuity contemplated during the pendency of a judicial proceeding. The learned Single Judge, with respect, has overlooked the provisions of regulation 351-AA and a specific bar which is contained in regulation 919-A

(3). In view of the specific prohibition which is contained in regulation 919-A (3), no death-cum-retirement gratuity would be admissible until the conclusion of a departmental or judicial proceeding. The expression ‘judicial proceeding’ would necessarily include the pendency of a criminal case.”

30. The aforesaid Division Bench judgment has relied upon another Division Bench of this Court in Sri Pal Vaish vs U.P. Power Corporation Ltd. and another, 2009 (9) ADJ 45, wherein it has been held that clause 3 of Regulations 919 A is a provision which specifically deals with payment of gratuity during the pendency of departmental or judicial proceedings and in view there of the payment of gratuity has to be deferred until conclusion of such proceedings. The Division Bench also held that payment of gratuity cannot be made in view of bar contained in Regulation 919 A, during the pendency of the criminal case and came to the conclusion that the respondent therein could be granted the provisional pension and gratuity could be withheld till the conclusion of criminal trial pending against him.

31. In the aforesaid decision in Jai Prakash’s case (supra) came up for consideration in State of U.P.vs Faini Singh (supra), the Division Bench after agreeing with the proposition of law laid down in Jai Prakash’s case opens up another question to be considered namely, whether the power under Article 351 AA read with section 919 A can be used mechanically on the pendency of any judicial proceedings against the Government Servants without considering the allegations against him. The Court observed that the power vested in the authority has to be utilised bonafidely for the purpose for which such power is given. The discretion given has to be exercised judiciously. Considering the facts of the case, the Division Bench quashed the order impugned for this reason, and not for the reason that there existed no provision to withhold gratuity and pension during pendency of judicial or departmental proceedings (see para 21 of the judgment in Faini Singh).

32. In Shiw Narayan Singh vs State, Special Appeal No. 669 of 2016 decided on 11.09.2017, the Division Bench of this Court was considering the case of a Platoon Commander in PAC, who retired on 31.10.2013. His gratuity was withheld because of pendency of a criminal case under Sections 451, 453, 120-B IPC and section 132 of Unlawful Activities (Prevention) Act, 1967. The order withholding gratuity was challenged in Writ Petition No. 234 of 2013 and the Court relied upon Division Bench in State vs Jai Prakash, 2014 (1)ADJ 207 to conclude that there was a provision in Civil Service Regulation for withholding gratuity. This order was challenged in Special Appeal. The Division Bench held that under sub-rule (2) of Rule 2 of 1961 Rules it was specifically provided that Civil Service Regulation shall continue to apply insofar as the provision therein are not contrary to Rules of 1961 the provision for withholding of gratuity not being provided in the Rules of 1961, the question of conflict with Civil Service Regulation would not arise at all. There is a specific mention in Rule 9 of the Rules of 1961 of Civil Service Regulation, Article 351-A and therefore Rules of 1961 would prevail insofar as 351-A is concerned but since in Rule 9 there is no mention of power under Article 351-AA, then the Civil Service Regulation would prevail. The Division Bench in Shiv Narayan Singh also noticed that the Division Bench in Jai Prakash had noticed Bhagwati Pal Verma and distinguished the same and therefore, it found the later Division Bench to have laid down the correct position in law. It dismissed the appeal on 11.09.2017.

33. Learned counsel for the petitioners have cited several Single Judge decisions to buttress their arguments that in their case departmental proceedings were not initiated and only on the basis of criminal proceedings being pending, orders cannot be issued for withholding pension. These are:- Writ A No. 73359 of 2010 (Jai Prakash vs State of U.P. and others) decided on 10.05.2013, Writ Petition No. 13894 of 2009 (Radhey Shyam Shukla vs State of U.P. and another) decided on 03.08.2009 and Writ Petition No. 67791 of 2014 (Shiv Sewak Prasad Mishra vs State of U.P. and others) decided on 13.01.2015.

34. Hon’ble Single Judges therein have referred to decisions of other writ petitions, namely, Writ Petition No. 25554 of 2010 (Lalta Prasad Yadav vs State of U.P. and others) decided on 15.05.2013, Writ Petition No. 26972 of 2013 (Santosh Kumar Singh vs State of U.P. and others) decided on 14.05.2013, Writ Petition No. 10099 of 2013 (Head Constable 11 AP Mishir Lal vs State of U.P. and others) decided on 26.02.2013, and Writ Petition No. 17141 of 2012 (Head Constable 122 AP Deo Narain Singh vs State of U.P. and others) decided on 20.07.2012.

35. I have considered all these judgments rendered by Judges sitting in Co-ordinate jurisdiction and they have either placed reliance upon the Payment of Gratuity Act, or the judgments rendered in the case of Bangali Babu Mishra (supra) and other Division Benches following the said Division Bench decision as aforesaid, and held that during the pendency of the criminal proceedings, wherein there is no charge of having caused loss to the State Government, and final punishment wherein would not result any recovery being initiated by the State Government against such employees, the pension and gratuity cannot be withheld.

36. The question before this Court is whether Payment of Gratuity Act can at all be applied in the case of U.P. Government Servants in view of specific bar under section 2 (e) of the said Act?

37. The question before this Court also is whether earlier Division Benches having not considered specifically Regulation 351 AA, introduced by way of 10th Amendment in the Civil Service Regulations in 1983, and Regulation 919 A, could be said to be laying down correct law in ignoring applicable Statutory Provisions?

38. The question before this Court also is whether judgment rendered by Division Bench in Bangali Babu Mishra (supra) having attained finality, it having not being challenged by the State Government in appeal before Hon’ble the Supreme Court, can it be said that it is a binding precedent which ought not to be ignored?

39. The question before this Court also is whether the definition of “judicial proceedings” as given in Bangali Babu Mishra, and whether its interpretation that “judicial proceedings” will not include any criminal proceedings, is a correct appreciation of the language of relevant Statutory Provisions?

40. Certain Division Benches as stated herein-above have referred to judgments of the Hon’ble Supreme Court viz. Deokinandan vs State of Bihar, AIR 1971 Supreme Court 1409, State of Punjab and another vs Iqbal Singh, AIR 1976 Supreme Court 667, D.S. Nakara vs Union of India, 1983 (1) SCC 305, which in turn have also referred to other judgments of Hon’ble Supreme Court.

41. I have considered the law as laid down in the case of Deokinandan vs State of Bihar AIR 1971 SC 1409 as followed in State of Punjab and another vs Iqbal Singh and D.S. Nakara vs Union of India.

42. In Deokinandan (supra), the Hon’ble Supreme Court considered the question whether right to receive pension by a Government Servant is a right to property so as to attract Article 19(1)(f) and 31(1) of the Constitution of India to make a writ petition under Article 32 of the Constitution maintainable before the Supreme Court. It came to the conclusion that grant of pension does not depend upon an order being passed by the authority to that effect. The right to receive pension flows to an officer not because of the order passed under the relevant Pension Rules but because he has served the Government for long. The Pension Rules are only required for the purpose of quantifying the amount to be received by a retired employee.

43. In Iqbal Singh, the Supreme Court held that pension is not a bounty payable on the sweet will and pleasure of the Government, and the right of Government Servant to receive it is ‘property’ under Article 31 (1), and the State cannot withhold the same by mere executive order. Since, it adversely affected the Civil Servant, such an order could not have been passed without giving him reasonable opportunity.

44. In D.S. Nakara, the Court held that pension was not a bounty, and proceeded to state that a Government employee would earn pension by rendering long and efficient service.

45. However, none of the Division Benches as referred to herein-above have referred to law as settled by the Hon’ble Supreme Court in U.P. State Sugar Corporation Ltd. and others vs Kamal Swaroop Tondon, 2008 (2) SCC 41, wherein the Hon’ble Supreme Court in paragraphs 14 to 28 has referred to several judgments rendered by it, and held that retiral benefits are earned by an employee for long and meritorious services, and gratuity is paid to such an employee for his dedicated and devoted work, and still came to the conclusion that departmental enquiry can be initiated against a Government Servant after his superannuation, and pension can be reduced and gratuity can be withheld. It also held that such proceedings cannot only be initiated before an employee retires, but can also continue after his retirement or they may be initiated, even after their retirement and in all such cases, the Government is entitled to recover any pecuniary loss suffered by it due to negligence or serious misconduct of the employee.

46. Some of the Division Benches have observed that when the Government does not propose to recover any loss caused to it even after conclusion of the criminal proceedings as the charge does not relate to great loss or embezzelment but relates to moral turpitude or violent behaviour, the pension and gratuity of such an employee could not be withheld. However, this Court is also aware that all pension and gratuity is subject to good conduct of an employee not only when he is on duty but also when he is not.

47. The question before this Court is also whether the observation made by this Court that in case no pecuniary loss is incurred by the Government due to negligence or serious misconduct by an employee, pension or gratuity cannot be withheld can be said to be correct?

48. In G. Veerappa Pillai vs Raman and Raman Lal, AIR 1952 SC 192, the Constitution Bench of the Supreme Court while referring to writs issued under Article 226 of the Constitution observed that they are “obviously intended to enable the High Court to issue them in grave cases ………………., which has resulted in manifest injustice”.

49. Again in Sangram Singh vs Election Tribunal, AIR 1955 SC 425, dealing with ambit and scope of powers of High Courts under Article 226 of the Constitution, the Hon’ble Supreme Court had observed in paragraph 14 as under:

“14. That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case. (emphasis supplied)”

50. The Hon’ble Supreme Court has observed in Secretary ONGC Ltd. vs V. U. Warrier, 2005(5) SCC 245, that “in our judgment, considering all these facts, the High Court was wholly unjustified in exercising extraordinary and equitable jurisdiction in favour of the petitioner-respondent herein-and on that ground also, the order passed by the High Court deserves to be set aside.”

51. Therefore, a question would arise whether a Government Servant facing trial/appeal in a criminal case, being charged of serious or heinous crime, could still be granted relief by this Court in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India for pension and gratuity from Public Exchequer, without being finally absolved of all charges by a Competent Court of Law?

52. The issues involved in both the writ petitions relate to (a) whether pension and gratuity can be withheld during the pendency of criminal proceedings? (b) whether the words, “judicial proceedings” used in Article 351 A of the Civil Services Regulations be treated to be same as criminal proceedings? (c) whether Payment of Gratuity Act would apply to employees of the State Government? (d) whether pension alone can be withheld and not gratuity? (e) whether extraordinary relief as envisaged under Article 226 of the Constitution can be refused as a matter of discretion by the High Court? (f) whether judgements rendered by the Division Benches of this Court in (i) Bangali Babu Mishra vs State of U.P. and others, 2003 (3) AWC 1760 decided on 05.12.2002; (ii) Bhagwati Prasad Verma vs State of U.P. through Secretary, Basic Education (Manu/UP/1246/2007) decided on 10.09.2007; (iii) Mahesh Bal Bhardwaj vs U.P. Co-operative Federation Ltd. and another , 2007 (10) ADJ 561 decided on 21.11.2007; (iv) Lal Sharan vs State of U.P. and others, 2012 (1) ESC 57 (All); (v) Narendra Kumar Singh vs State of U.P. (Writ A No. 12574 of 2013 decided on 05.10.2013, which hold that pension and gratuity cannot be withheld during the pendency of criminal proceedings, lay down the correct law, in view of the judgments of Division Benches of this Court in (i) Krishna Kumar (Decd.)vs State of U.P. and others, 1998 (4) AWC 595; (ii) Sri Pal Vaish vs U.P. Power Corporation Ltd. another (Writ Petition No. 52565 of 2000) decided on 13.08.2009; (iii) State of U.P. and others vs Jai Prakash, (Special Appeal (Defective) No. 1278 of 2013) decided on 07.12.2013? (iv) State of U.P. and others vs Faini Singh, Special Appeal (D) No.416 of 2014 decided on 25.04.2014 and (v) Shiv Narayan Singh vs State of U.P., Special Appeal No. 669 of 2016 decided on 11.09.2017.

53. Let this matter be placed before the Hon’ble Chief Justice for constitution of a Larger Bench to decide the aforesaid substantial question of law, at the earliest.

Order Date :- 05.10.2017

Sazia

 

 

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