Hardwari Lal Vashistha vs State Of U.P. Thru' Secy. Food & ...
2013 Latest Caselaw 7506 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 21  
 
                                                                  Reserved on 10.12.2013
 
Case :- WRIT - A No. - 11852 of 2004
 

 
Petitioner :- Hardwari Lal Vashistha
 
Respondent :- State Of U.P.  through Secretary Food & Civil Supplies and others
 

 
Counsel for Petitioner :- Sri Kripa Shanker Singh and Sri Ashutosh Tripathi
 
Counsel for Respondents :- C.S.C.
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Bharat Bhushan,J.

(Delivered By Hon. Rakesh Tiwari,J.)

Heard learned counsel for the petitioner and learned Standing Counsel for respondents.

The background of the case is that petitioner was appointed as Area Rationing Officer in department of Food and Civil Supplies U.P. in the year 1973. He was promoted as District Supply Officer in January, 1974.

During his service tenure, he was posted at various places. The Government vide G.O. dated 30.8.1976 provided preference to some unions for nomination of agent with regard to import of slack coal and soft coke import distribution. In May, 1983 after being transfered from district Aligarh to Mathura as District Supply Officer, petitioner is said to have on the report submitted by the Supply Inspector, issued a licence on 12.2.1985 to a firm M/s India Coal Company.

On the recommendation of the petitioner during period of February, 1985 to June 1985 coal was alloted to the firm M/s India Coal Company (hereinafter referred to as the 'Firm') but Form No. 36 was not issued to it by the Trade Tax Department and, as such, tax liability upon the firm could not be imposed. Subsequently, the licence of the firm was cancelled on 30.1.1986 and the Under Secretary confidential Section 8, Lucknow issued direction for investigation of petitioner's conduct wherein it was revealed that there was a tax evasion by the said firm situated at 11/38, Sita Nagar, Agra and the matter was referred to economic offences wing. On reference to the Station Officer, Loha Mandi, Agra, FIR was lodged against the Firm as Case No. 761/1999 under Sections 420, 467, 468, 471,120-B IPC and under Section 13(2) of Prevention of Corruption Act against the petitioner, Hardwari Lal Vashistha. From perusal of the F.I.R., it appears that allegation against the petitioner was that he was colluded with the said firm and had issued licence at the forged address.

The order dated 27.3.2003 reads thus:

" la[;k&jk&[email protected]&1&2003&97 fofo/[email protected]

izs"kd]

Jh tokgj yky]

vuq lfpo]

mRrj izns'k 'kkluA

lsok esa]

vk;qDr]

[kkn~; rFkk jln foHkkx]

m0iz0 tokgj Hkou] y[kuÅA

[kkn~; rFkk jln vuqHkkx&1 y[kuÅ% fnukad 27 ekpZ 2003

fo"k;%& Jh ,p0,y0 of'k"B] lsokfuo`Rr ftykiwfrZ vf/kdkjh dks isa'[email protected];qVh Lohd`r fd;s tkus ds laca/k esaA

egksn;]

mi;qZDr fo"k;d vki ds i= la[;k&[email protected]/[email protected]@77 nh0lh0] fnukad 15-01-2003 ds lanHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd bl laca/k esa foRr foHkkx ls ijke'kZ izkIr fd;k x;k] 'kklukns'k fnukad 28-7-1989 ds izLrj&[email protected]@[[email protected] ds mi izLrj&3 ds izkfo/kkuqlkj ,sls ljdkjh lsodksa dks] ftuds fo:) lsokfuo`fRr ds fnukad dks] foHkkxh;@U;kf;d vFkok iz'kklukf/kdj.k dh tkap py jgh gks vFkok iz'kklukf/kdj.k dh tkap fd;k tkuk visf{kr gks] 'kklukns'k la[;k&lk&3 [email protected]&80&909&79] fnukad 28-10-80 ds vuqlkj vufUre isa'ku dk Hkqxrku dj fn;k tk;sxk fdUrq xzsP;qVh dh iw.kZ /kujkf'k rc rd jksdh tk;sxh] tc rd ,slh tkap dk ifj.kke izkIr u gks tk;A xzsP;qVh dh /kujkf'k ls og dVkSfr;ka dh tk;sxh] ftudk mYys[k foHkkxh;@iz'kklfud dk;Zokgh ds QyLo:i ikfjr vkns'k esa fd;k x;k gksA

2& vr% d`i;k rn~uqlkj izdj.k esa vxzsrj dk;Zokgh djus dk d"V djsaA

Hkonh;]

tokgj yky

vuq lfpoA"

A perusal of the above order shows that Under Secretary, Government of U.P. has passed the order on the reference of G.O. dated 28.7.1989 vide para-5 (2) (kha) which provides that any retired government employee against whom, any departmental proceedings or judicial proceedings is pending on the date of his retirement then they shall be paid an ad-interim pension but gratuity shall be withheld till he is exonerated from the proceedings or as ordered by the departmental/administrative order.

The petitioner's case is that he retired from service on 28.2.2001 when neither any departmental proceedings nor any judicial proceedings were pending against him, hence 10% deduction from pension order or withholding of gratuity cannot be passed against him: that as per G.O. dated 30.11.1984 (annexure-5) as such petitioner is entitled for 10% interest after one year on the amount of gratuity withheld. It is stated that till date of retirement, no charge-sheet has been submitted, therefore, in terms of Regulation 351-A, no charge-sheet or judicial proceedings could have been initiated against him.

The contention of learned counsel for the petitioner is that petitioner retired on 28.2.2001 as District Supply Officer. It is stated that when his pension papers were forwarded then the impugned order dated 21.3.2003 was passed on the basis of paragraph 5(2) (kha) (iii) of the Government Order dated 28.7.1989 issued by Finance Department in pursuance of Regulation 351-A of Civil Services Regulation which is applicable to the employees for pension to the State of U.P. According to him, it is clear from record that FIR was lodged against the petitioner on 3.11.1999 in relation to an incident which allegedly occurred on 13.11.1984 of granting licence for lifting coal etc and the investigation was handed over to Economic Offences Wing. Therefore, on the date of retirement on 28.2.2011 neither the Regulation 351-A of the Civil Services Regulation were applicable nor any departmental and criminal proceedings were pending against him. It is asserted that from perusal of the Regulation 351-A, it is apparently clear that merely an F.I.R. was lodged mentioning the name of the petitioner which was being investigated by the economic offences wing and neither any charge-sheet was submitted nor any departmental proceeding was initiated against him, as such the impugned order is not sustainable in the eyes of law.

It is further submitted that petitioner filed an application under Section 482 Cr.P.C. before this Court for quashing the proceedings aforesaid in Crl. Misc. Application No. 781/2003 in which counter affidavit was filed on 23.7.2004. In paragraphs 8 and 9 of the counter affidavit, it has been admitted that neither any charge-sheet has been filed nor any criminal proceedings is pending against the petitioner. In the affidavit there is a report of Investigator bearing No. EOW (Invest) 191/1999 which is a confidential letter based on the report of investigator dated 26.12.2000. On perusal of the aforesaid report a recommendation has been made that a criminal case under Section 420, 467, 468, 471 and 120 B IPC and 13(2) of the Prevention of Corruption Act is made out against the petitioner and as such criminal proceeding was recommended against Manoj Kumar Srivastava the then Sales Tax Officer, Agra and the petitioner though only departmental proceeding was recommended against one Ambrish Bahadur Saxena the then Senior Assistant of Trade tax Office, Division-4, Aligarh. An order dated 02.08.2001 under Section 197 Cr.P.C. was also obtained by the Government from the H.E. The Governor.

On the basis of these documents, it is argued by learned counsel for the petitioner that a Divison Bench of Hon. Yatindra Singh,J. and Hon'ble Mahendra Dayal,J. passed the following order ignoring the provisions of Section 351-A of Civil Services Regulation:

"List this case after decision in the criminal case mentioned in para-6 of the Supplementary Counter affidavit dated 04.07.2012"

The criminal case mentioned in the order aforesaid is Criminal Case No.769 of 1989 in which charge-sheet has been filed against the petitioner on 31.12.2008 who preferred Special Leave to Appeal (Civil) No. (s) 35132of 2012 before the Apex Court which was dismissed directing the High court to hear and decide the present writ petition. It appears that the Court on 16.1.2013 made a query from the counsel for the respondent as to how pecuniary loss alleged to have been shown to have been caused, has been arrived at. The query was replied by means of a short reply dated 18.4.2013 annexing therewith the case diary dated 24.11.2010 which according to counsel for the petitioner had already been rejected vide order dated 12.7.2007.

The order impugned has been assailed by the petitioner on the ground that departmental proceedings had never been initiated against the petitioner nor was pending till date of his retirement and the criminal proceedings on the basis of the F.I.R. dated 3.11.1999 in respect of an incident which allegedly had occurred on 13.11.1984, a charge-sheet has been filed on 13.12.2008 whereas the instant writ petition is pending since 20.3.2004. Therefore, in view of the Regulation 351-A of the Civil Services Regulation neither any departmental proceedings nor any criminal proceedings was pending against the petitioner on his date of retirement i.e. 28.2.2001, hence his post retiral benefits (pension and gratuity) cannot be withheld as laid down by the Apex Court in Civil Appeal No. 6771 of 2013 (arising out of Special Leave Petition (Civil) No. 1428 of 2009 (State of Jharkhand and others Vs. Jitendra Kumar Srivastava and another). The Apex Court considered Article 300 A of the Constitution while deciding the aforesaid appeal vide judgment and order dated 14.8.2013 held that pension and gratuity is property of the employee and and this right cannot be taken away from him without due process of law.

Learned counsel for the petitioner submits that in the aforesaid case, Rule 43-B of Bihar Pension Act which is pari materia to the Regulation 351-A of the Civil Services Regulation is applicable to the State in respect of an employee whose pension and gratuity cannot be withheld for the reasons that pendency of a department proceedings or a criminal proceedings is in existence. Hence, in the aforesaid circumstances, the impugned order dated 27.3.201 is liable to be quashed and petitioner is entitled for a direction for payment of his gratuity with interest @ 10% per annum as per law laid down by the Apex Court.

Per contra learned counsel for respondent has relied upon the counter affidavit of Sri Girdhari Lal, Assistant Commissioner (Food) Allahabad Division Allahabad in which it is stated that the petitioner granted licence to firm namely Coal India Agency on the address 3/223, Shyam Nagar, Aligarh wherein the firm obtained registration certificate from Sales Tax Department at address 39/34, Karwan Loha Mandi, Agra. On 13.2.1985, 12.3.1985, 12.4.1985, 12.6.1985, 13.6.1985 and 02.07.1985 huge quantity of coal was allotted to the firm in question at the address 3/223, Shyam Nagar, Aligarh where the said firm is neither situated nor was in existence.

It is stated that the case of State of Jharkhand and others (Supra) is a case of pension under the Ad-hoc Pension Rules payable under the Ad-hoc pension Rules wherein Rule 43 (b) has been considered. It is not pari materia of Regulation 351-A of Civil Services Regulation applicable in the State of U.P.

In rebuttal, counsel for the petitioner submits that the letter written by DIG (Estern), Economic Offence wing Lucknow to Principal Secretary, clearly shows that petitioner has not given any information to Sales Tax Department about coal allotment, therefore, the tax cannot be assessed and imposed for which petitioner is found guilty.

Upon hearing learned counsel for the parties and on perusal of the record the admitted facts are that impugned order dated 27.3.2003 has been passed on the basis of Government Order dated 28.7.89 issued by the Finance Department; that an FIR was lodged against the petitioner on 3.11.1999 in relation to an incident occurred on 13.11.1984 with regard to grant of licence for lifting coal; that Regulation 351-A of the Civil Services Regulation is applicable to the employees of the State of U.P. and the parties are also not in dispute that criminal proceedings had been initiated against the petitioner when the matter was investigated by the Economic Offences Wing. Record shows that the petitioner had filed an application under Section 482 Cr.P.C. before this Court for quashing the proceedings in Criminal Misc. Application No. 781 of 2003,hence it cannot be said that no administrative action/criminal proceedings were pending against the petitioner; that in fact in Criminal Case No. 769 of 1989 chargesheet had been filed against the petitioner on 31.12.2008 against which Special Leave to Appeal filed before the Apex Court was dismissed directing the High Court to hear and decide the writ petition. The Economic Offences Wing (Invest) report no. 191/1999 shows that a recommendation has been made against the petitioner stating that a criminal case under Sections 420,467,468,471 and 120-B IPC and 13(2) of the Prevention of Corruption Act is made out against him. In the circumstances, it cannot be said that no administrative or criminal proceedings were pending against the petitioner. In this backdrop, we are of the firm view that regulation 351-A of the Civil Services Regulation is attracted. The petitioner had issued a licence to a fake firm, which was not in existence at the address given and, therefore, it cannot be said that the firm was in existence at the address given. In the facts and circumstances of the case, the case of State of Jharkhand (supra) as stated earlier, is based on entirely different facts. The petitioner had also not given any information to the DIG (Estern), Economic Offences Wing, Lucknow or the Principal Secretary about the coal allotment, therefore, his implication in the case cannot be said to be forged one. A huge amount of loss has been suffered by the Government due to allotment of coal by the petitioner to a fake firm.

For all the reasons stated above, the writ petition is dismissed. No order as to costs.

Dated 18.12.2013

Meenu/CPP/-