Arun Kumar Chaturvedi vs The State Of U.P. And Others
2013 Latest Caselaw 1486 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on : 15.4.2013
 
Delivered on : 30.4.2013
 
Court No. 9
 
Case : - WRIT - A No.- 76090 of 2011
 
Petitioner : - Arun Kumar Chaturvedi,
 
Respondent : - The State of U.P. And Others
 
Petitioner Counsel : - Vijay Gautam
 
Respondent Counsel : - C.S.C. 
 

 

 
Hon'ble Ashok Bhushan, J 
 
Hon'ble Surya Prakash Kesarwani, J
 
(Delivered by Hon' Surya Prakash Kesarwani, J )
 

 
In this writ petition the petitioner has prayed for following relief:- 
 
(a) Issue, a writ, order or direction, in the nature of Mandamus, directing the Respondent Authorities to give payment of Gratuity and other retiral benefits to the petitioner alongwith 12% interest.
 
(b) Issue, a writ, order or direction, in the nature of Mandamus, directing the Respondent Authorities to pay regular pension to the petitioner, and to direct the Respondent Authorities to pay arrear difference of the regular pension to the petitioner since 1.9.2008, alongwith 12% interest.
 
(c) Issue, any other writ, order or direction, in favour of the petitioner, as this Hon'ble Court deems fit and proper in the present facts and circumstances of the case, so as to secure the ends of justice or else, the petitioner shall suffer irreparably.
 
(d) Award the cost of Petition to the petitioner. 
 
Facts

of the Case

Petitioner has retired from the post of Chief Fire Officer in Civil Police on 31.8.2008. In the year 2006, he was posted as Chief Fire Officer, Meerut. In April, 2006, an exhibition in the name of "Brands India Consumer Show" was organized by the exhibitors at Victoria Park, District Meerut for which a Pandal was built at the Victoria Park. On 10.4.2006 at about 5.30 p.m. fire broke up in the Pandal of the exhibition when about 2000 persons were there. In this incident 64 persons were killed by fire and 161 persons received serious burn injuries. Vide office memorandum dated 21.8.2008 issued by the Home Secretary, the petitioner was placed under suspension and departmental proceeding was initiated against him. A judicial enquiry was also ordered and justice O.P. Garg was appointed as enquiry officer who submitted his report dated 5.6.2006 recommending to lodge criminal case against 8 officers of the State Government including the petitioner.

From the perusal of the F.I.R. filed as Annexure No. 3 to the writ petition, it appears that against the accused, including the petitioner F.I.R. was registered under Section 304, 427, 308, 406, 420, 201 I.P.C. and Sections 109, 54, 146 Electricity Act being case Crime No. 24/09.

The departmental proceeding against the petitioner was dropped vide office memorandum dated 9.7.2010 read with corrigendum dated 10.8.2010( Annexure Nos. 6 and 7 to the writ petition) subject to the condition that it shall be subject to the result of investigation in criminal case.

From the perusal of the paragraph 1 of the writ petition and the order of this Court dated 22.4.2011 filed as Annexure No. 10 to the writ petition, it appears that earlier the petitioner has filed a Writ Petition No. 23588 of 2011 for the same relief as sought in the present writ petition. However, at the time of hearing, the petitioner confined his prayer for direction to the concerned authority to furnish the directives as requested by the Deputy Inspector General of Police, Varanasi Region Varanasi by his letter dated 21.8.2010. This writ petition was disposed of on 22.4.2011.

In paragraph 5 of the counter affidavit filed on behalf of Respondents by Sri Shashi Bhushan Dwivedi, Superintendent of Police (Security) District Varanasi, it has been stated that after superannuation of the petitioner on 31.8.2008 the following dues have been provided to the petitioner : -

(a) 90% of the G.P.F. of Rs. 7,85,491/-

(b) 10% of the GPF of Rs. 90,668/-

(c) Leave encashment of Rs. 3,42,683/-

(d) Amended Pension of Rs. 1,43,210/-

(e) Provisional Pension of Rs.15,280/- per month.

This fact has not been specifically denied by the petitioner in the paragraph No. 5 of the rejoinder affidavit rather it has been stated that no gratuity and regular pension has been paid to the petitioner till date. Thus, it is evident that a sum of Rs.13,62,052/- has been paid by the State Government to the petitioner towards his retiral dues and provisional pension of Rs.15,280/- per month is being paid.

Now, the petitioner has filed the present writ petition.

We have heard Sri Vijay Gautam, learned counsel for the petitioner and Sri R.K. Chaube, learned Standing Counsel for the Respondents.

Submission of the parties

The submission of learned counsel for the petitioner is that mere pendency of a criminal case against the petitioner is no ground to withhold the gratuity. He further submits that it is not the case of the respondents that any pecuniary loss has been caused by the petitioner. In support of his submission he has relied upon the judgment of Hon'ble Supreme Court in the case of State of U.P. Vs. Krishna Pandey AIR 1996 SC 1656 and two unreported judgments of learned Single Judge dated 20.7.2012 passed in Writ Petition No. 17141 of 2012 HC 122 AP Dev Narayan Singh Vs. State of U.P. and others and judgment dated 26.2.2013 passed in Writ Petition No. 10099 of 2013 HC 11 AP Mishri Lal Vs. State of U.P. and others and one Division Bench judgment of this Court dated 24.1.2013 passed in Special Appeal No.(D) 84/2013 (State of U.P. Vs. HC 122 AP Dev Narayan Singh).

He further submits that in view of these judgment and the provisions of Article 351A of the Civil Service Regulation( hereinafter referred to as 'Regulation') , the petitioner is entitled for gratuity and his gratuity cannot be withheld.

On the other hand, learned Standing Counsel has submitted that judicial enquiry conducted by justice O.P. Garg discloses serious allegations against the petitioner as evident from the F.I.R. Which was registered under several provisions of I.P.C. The petitioner cannot escape from his responsibility with regard to the fire incident which occurred on 10.4.2006 at Victoria Park, District Meerut when the petitioner was posted as Chief Fire Officer at Meerut and in this incident 64 innocent persons were killed by fire and 161 persons received serious burn injuries. This incident caused loss of life and property. He further submits that the stand of the petitioner in the writ petition that departmental proceeding has been dropped, is not fully correct. As evident from the office memorandum dated 9.7.2010 read with corrigendum dated 10.8.2010 (as Annexure No. 6 and 7 to the writ petition) the departmental proceeding has been dropped against him subject to the condition that decision in the departmental proceeding shall be subject to result of final decision to be taken in the pending investigation in criminal case. He submits that Article 351A can be invoked even if there may not be pecuniary loss in a given case. He placed reliance on the following judgments :-

(I)2010 Law Suit (Del) 1835 ( Lakhmindar Singh Brar Vs. Union of India and others)

(II) (1999) 9 SCC 43 ( R.Veerbhadram Vs. Government of Andhra Pradesh)

(III) (1995) SCC 105 (State of Orissa and others Vs. Kalicharan Mohapatra and another))

(IV)(1993) 1 SCC 47 ( Jarnail Singh Vs. Secretary, Ministry of Home Affairs and others)

Mr. Chaube further submits that writ jurisdiction under Article 226 of the Constitution of India is a discretionary jurisdiction and discretion should not be exercised looking at the peculiar facts of the present case. He placed reliance on the following judgments : -

AIR 1992 SC 1593 para 7( State of Punjab and others Vs. Surinder Kumar and others).

JT 2003(6)SC 20 Para 42 ( Chandra Singh Vs. State of Rajasthan and another).

JT 2008 (3) SC 284 para 15 (B.K. Muniraju Vs. State of Karnataka and others).

JT 2010 (3) SC 160 Para 5 (Mathai @ Joby Vs. George & another).

Our Findings

So far as the first submission of the learned counsel for the petitioner that departmental proceeding has been dropped against him and gratuity cannot be withheld as per provisions of Article 351A of the Regulation is concerned, we find that there is clear stipulation in the office memorandum dated 9.7.2010 read with corrigendum dated 10.8.2010 that departmental proceeding being dropped is subject to the final decision to be taken in the pending investigation pursuant to the criminal case registered against the petitioner. Thus, it cannot be said that the departmental proceeding has been finally dropped against the petitioner. Besides, it is undisputed that case Crime No. 24/09, under Section 304, 427, 308, 406, 420, 201 I.P.C and 109, 54, 146 Electricity Act appears to be pending in which the petitioner is one of the accused being Chief Fire Officer, District Meerut when the incidence occurred on 10.4.2006 at Victoria Park, Civil Lines, Meerut which caused death of 64 innocent persons by fire and serious burn injuries to 161 persons. Thus submission of learned counsel for the petitioner that in view of the provision of Article 351A of the Regulation the gratuity of the petitioner cannot be withheld, appears to be not correct in view of the fact that proceedings are yet pending against the petitioner as aforementioned.

Now on the facts of the present case we consider the effect of Article 41 and 351A of the Regulation which is reproduced below:-

"Article-41 :- Except when the term "pension" is used in contradistinction to gratuity "Pension" includes Gratuity."

"Article-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 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 :

Provided that :

(a) Such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment :

(i) shall not be instituted save with the sanction of the Governor ;

(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings, and

(iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.

(b) judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with Sub-clause (ii) (a), and

(c) the Public Service Commission, U.P., shall be consulted before final orders are passed.

Explanation. -- For the purposes of this article :

(a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or, if the officer has been placed under suspension from an earlier date, on such date ; and

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

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

(ii) in the cases 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.

Note. -- As soon, as proceedings or the nature referred to in this article are instituted, the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned."

We now proceed to examine the law laid down by Hon'ble Supreme Court while considering Article 351A of the Regulation and similar provision in other statutes. In the case of Kalicharan Mohapatra ( supra) the Hon'ble Supreme Court considered Rule 6 of the All India Services ( Death-cum- Retirement Benefits) Rules, 1958 which is paramateria with Article 351A of the Regulation and held in Para 4, 5, 6 and 7 (SCC) as under :-

"4. The appellants relied upon Rule 6 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 in support of their action. The appellants' case was that in view of the pendency of the said criminal case, they were justified in withholding the gratuity amount and also in not sanctioning the pension finally. The Tribunal has held that the said rule does not avail the appellants inasmuch as the charge against the respondent is not one of causing pecuniary loss to the Central or State Government by misconduct or negligence within the meaning of Rule 6(1). We are of the opinion that the reading of the rule by the Tribunal is unsustainable and incorrect. The rule reads thus:

"6. Recovery from pension:- 6(1) The Central Government reserves to itself 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 pension of the whole or part of any pecuniary loss caused to the Central or a State Government, if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Central or a State Government by misconduct or negligence, during his service, including service rendered or re-employment after retirement.

Provided that no such order shall be passed without consulting the Union Public Service Commission:--

Provided further that--

(a) such departmental proceeding, if instituted while the pensioner was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the pensioner, be deemed to be a proceeding under this sub-rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the pensioner had continued in service;

(b) [Omitted as unnecessary]

(c) [Omitted as unnecessary]

Explanation.- For the purpose of this rule:-

(a) a departmental proceeding shall be deemed to be instituted which the charges framed against the pensioner are issued to his or, if he has been placed under suspension from an earlier date, on such date and

(b) a judicial proceeding shall be deemed to be instituted--

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

(2) Where any departmental or judicial proceeding is instituted under sub-rule (1), or where a departmental proceeding is continued under clause (a) of the proviso thereto against an officer who has retired on attaining the age of compulsory retirement or otherwise, he shall be sanctioned by the Government which instituted such proceedings, during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service upto the date of retirement, 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; but no gratuity or death- cum-retirement gratuity shall be paid to him until the conclusion of such proceedings and the issue of final orders thereon.

Provided that where disciplinary proceeding has been instituted against a member of the Service before his retirement service under rule 10 of the All India Service (Discipline and Appeal) Rules, 1969, for imposing any of the penalties specified in clause (i), (ii) and (iv) of sub-rule 1 of rule 6 of the said rules and continuing such proceeding under sub-rule (1) of this rule after his retirement from service, the payment of gratuity or Death-cum- Retirement gratuity shall not be withheld.

(3) [Omitted as unnecessary]."

"5. A reading of sub-rule (1) of Rule 6 discloses the following features: (a) if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or (b) where a pensioner is found in a departmental or judicial proceeding to have caused pecuniary loss to the Central or State Government by his misconduct or negligence during his service (including the service rendered on re-employment after retirement), (c) the Central Government is entitled to withhold or withdraw pension or any part of it whether permanently or for a specified period. The Central Government is also entitled to order recovery from pension of the whole or part of any pecuniary loss caused to the Central or State Government. Sub-rule (2) says that (a) where a departmental or judicial proceeding is instituted under sub-section (1) or (b) where a departmental proceeding is continued under clause (a) of the proviso to sub-rule (1), (c) such employee shall be sanctioned by the government which instituted such proceedings a provisional pension not exceeding the maximum pension admissible to him during the period of pendency of such proceeding, (d) but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceedings and the issuance of final orders thereon."

"6. It is thus clear from an analysis of sub-rules (1) and (2) that where a judicial proceeding is pending against a pensioner for grave misconduct, the government is entitled to withhold gratuity amount and/or death-cum-gratuity amount and is also entitled to sanction provisional pension for the period of pendency of the said proceedings. It is not necessary that a judicial proceeding should relate to the charge of causing pecuniary loss to the Central or State Government by misconduct or negligence during his service. Sub-rule (1) of Rule 6 specifies two grounds upon which action thereunder can be taken. One is where the pensioner is found guilty of grave misconduct and the other is where he is found to have caused pecuniary loss to the Central and State Government by misconduct and negligence during his service. Sub-rule (2) provides for orders to be made during the pendency of such proceedings. It may also be mentioned that neither the All India Service (Death-cum-Retirement) Rules nor the Pensions Act, General Clauses Act or the Leave Rules [referred to in Rule 2(2)] define the expression "misconduct". It would, therefore, be reasonable and permissible to understand the said expression in Rule 6 aforesaid in the manner defined in the Prevention of Corruption Act."

"7. The Tribunal was, therefore, in error in holding that unless the charge expressly charges the pensioner with causing pecuniary loss to Central or State Government by his negligence or misconduct during his service, the action under sub-rule (2) of Rule 6 cannot be taken.

(Emphasis supplied by us )

In the case of Jarnal Singh ( supra) vide paragraph 9 (SCC) the Hon'ble Supreme Court has held as under :-

'9. Reference to some other provisions in the Central Civil Services ( Pension) Rules, 1972 supports the view we have taken. Rule 69(1)(c) provides that no gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon. This provision is indicative of the power to withhold payment of gratuity and its payment being subject to the final outcome of any pending departmental or judicial proceeding against the Government servant, Rules 71 a 73 relating to recovery and adjustment of Government dues and the express provision in R. 73(3) for adjustment of dues against the amount of death-cum-retirement gratuity payable to the Government Servant also reinforce this conclusion. Article 366 of the Constitution of India contains the definitions for the purpose of the Constitution and there in clause (17) is defined 'pension' Rules, 1972, the term 'pension' is defined to include gratuity except when the term 'pension' is used in contradiction to gratuity, in consonance with the basic concept. The contention of the appellant was, therefore, rightly rejected by the Tribunal.

In the case of Krishna Pandey ( supra), vide paragraph 4(AIR) the Hon'ble Supreme Court has held as under :

(4) A reading thereof clearly indicates that the Governor reserves to himself the power and right to withhold or withdraw pension or a part thereof, whether permanently or for a specified period. Equally, he has right to order recovery from pension of the whole or part of any pecuniary loss caused to Government when it is found in a departmental or judicial proceedings that the delinquent was guilty of grave misconduct or has caused pecuniary loss to the Government by his misconduct or negligence while he was continuing in service including the period of his re-employment after retirement. But the conditions preceding are that the departmental proceedings should be initiated only either before retirement or during re-employment and the same shall not be instituted without the sanction of the Governor. It should be in respect of an event which may have taken place not more than 4 years before the institution of such proceedings.

In the case of State of U.P. and others Versus Gulab Shankar Srivastava ( JT 2005(11) SC 201 Para 9) the Hon'ble Supreme Court has observed as under : -

"9. In the case of State of U.P. v. Brahm Datt Sharma & Another reported in [(1987) 2 SCC 179], this Court held that under regulation 351-A of U.P. Civil Service Regulations, the Government was authorized to withhold or reduce pension and merely because a Government servant retired from service on attaining the age of superannuation, he cannot escape the liability for misconduct and negligence or financial irregularities, which he may have committed during the period of his service. This decision has been followed by this Court in the case of Takhatray Shivadattray Mankad v. State of Gujarat."

In the case of Shyam Sunder Lal Vs. Shagun Chand ( AIR 1967 (All) 540-F.B.) a Full Bench of this Court observed that even pendency of a criminal appeal is a pendency of judicial proceedings during which the petitioner is only entitled to provisional pension in view of Rule 69 of the CCS ( Pension) Rules and the question of grant of regular pension would arise only after conclusion of Criminal proceedings against the petitioner.

In the case of Mangat Singh Vs. State of U.P. and another (2001) (1)ESC 326 para 8 the Division Bench of this Court held that pension under Article 351A may be withheld or withdrawn if the pensioner is found in departmental or judicial proceeding to have been guilty of misconduct or to have caused pecuniary loss to Government by misconduct and negligence during his service.

From a perusal of above noted judgments of Supreme Court it is clear to us that Hon'ble Supreme Court has laid down the law that it is not necessary that the judicial proceeding should relate to the charge of causing pecuniary loss to the Central or State Government by misconduct or negligence during his service. Law laid down in these judgments are binding on us under Article 141 of the Constitution of India .

In the case of Nathi Devi Vs. Radha Devi (JT 2005 (1) SC 1 Para 12) constitution Bench of Hon'ble Supreme Court laid down the law as under :

"It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the Legislature. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors.

So far as the judgment relied by learned counsel for the petitioner in the case of Mishri Lal ( supra), HC 122 AP Dev Narayan Singh ( supra) and the judgment in Special Appeal (D) No. 84 of 2013 in the case of State of U.P. and others Vs. HC 122 AP Dev Narayan Singh are concerned, suffice is to say that in those cases the facts were entirely different inasmuch as the allegation against the petitioner was that the accused escaped from their custody. In the present case, facts are entirely different in as much as the fire incidence occurred on 10.4.2006 at Victoria Park, Civil Lines, Meerut where the petitioner was posted as Chief Fire Officer, caused death of 64 innocent person and serious burn injuries to 161 persons and loss of property also. The F.I.R. was registered against the petitioner and others under Section 304, 427, 308, 406, 420 and 201 I.P.C.

In view of the discussions made above we find no substance in the writ petition and accordingly it is dismissed.

There is another reason for us to decline to interfere in this writ petition. Article 226 of the Constitution of India is an extra ordinary, equitable and discretionary jurisdiction and in appropriate cases Court can decline to exercise this jurisdiction. In view of the peculiar facts of the present case we decline to interfere.

Writ petition fails and is accordingly dismissed. However there shall be no order as to cost.

Date : 30.4.2013

Mukesh