Narendra Kumar Singh vs State Of U.P.Thru Principal ...
2013 Latest Caselaw 6322 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 12574 of 2013
 

 
Petitioner :- Narendra Kumar Singh
 
Respondent :- State Of U.P.Thru Principal Secretary & Ors.
 
Counsel for Petitioner :- Nisheeth Yadav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajes Kumar,J.

Hon'ble Mahesh Chandra Tripathi,J.

Heard learned counsel for the petitioner and learned Standing Counsel.

By means of the present writ petition, the petitioner is challenging the order dated 07.01.2013 passed by the Inspector General of Police, Department of Intelligence, by which interim pension of the petitioner has been allowed to the extent of Rs.15,010/- on the ground that in a criminal case, charge sheet has been submitted against the petitioner, which is pending before the Court.

Brief facts of the case are that the petitioner retired on 31.07.2012 from the post of Deputy Superintendent of Police. It appears that when the petitioner was posted as Inspector at Mainpuri in 2001,  a first information report has been lodged by one Sri Bharat Singh Chauhan against Updesh Singh Chauhan and Prempal Singh. The charge-sheet was submitted and the investigation has been transferred to the C.B.(C.I.D). In the enquiry proceedings, the C.B.(C.I.D) found that the petitioner did not take any preventive measures, rather in collusion with Updesh Singh Chauhan, intended to get the house occupied/grabbed.  For such charges, charge-sheet has been submitted against the petitioner.  The petitioner filed Criminal Misc. Application under Section 482 Cr.P.C. being No.10149 of 2009, Narendra Kumar Singh Vs. State of U.P. and another before this Court. This Court vide order dated 06.05.2009 after recording the reasons, passed  an interim order that no coercive action shall be taken against the applicant. According to the petitioner, the aforesaid Criminal Misc. Application, under Section 482 Cr.P.C. is pending. It appears that on the basis of the charge-sheet filed by C.B.(C.I.D) in the enquiry report, a departmental proceedings has been initiated against the petitioner and vide order dated 03.06.2003  passed by Superintendent of Police, Mainpuri , the integrity of the petitioner  has been withheld. Against the said order, the petitioner filed appeal before the D.I.G., Agra, which has been allowed and the integrity has been certified. However, it has been observed that after the decision in the criminal case,  it will be open to the department to initiate a fresh proceeding.

The contention of the petitioner is that no departmental proceeding is pending against the petitioner at present and, therefore, submission is that the petitioner is entitled for full pension. It is further submitted that mere pendency of criminal proceeding will not disentitle the petitioner to get full pension, inasmuch as there is no charge of the financial irregularities. Reliance is placed on the Division Bench decision of this Court in the case of Mahesh Bal Bhardwaj Vs. U.P. Cr-operative Federation Ltd. and another, reported in 2007(10) ADJ, 561 and the decision of learned Single Judge in the case of Radhey Shyam Shukla Vs. State of U.P. and another, reported in 2009 (7) ADJ, 379 and Division Bench decision of this Court in the case of Lal Sharan Vs. State of U.P. and others, reported in 2012 (1) ESC, 57 (Alld.).

Learned Standing Counsel states that it is true that at present no department proceeding is pending against the petitioner but if the petitioner will be punished in the criminal proceedings, the liberty has been given by the appellate authority, to initiate a fresh proceeding and, therefore, the interim pension allowed to the petitioner is wholly justified.

We have considered the rival submissions. Admittedly, there is nothing on record to suggest that any departmental proceeding is pending against the petitioner. There is no such averment in the counter affidavit. Merely because a criminal case is pending that too of a charge that he has not taken any preventive action, full pension can not be withheld. There is no charge of any financial irregularities.

We are of the view that on the facts and circumstances, full pension can not be denied. 

In the case of Deoki Nandan Shan Vs. State of U.P., reported in in AIR 1971 SC, 1409, the Apex Court ruled that the pension is a right and payment of it does not depend upon the discretion of the Government but is governed by the Rules and the Government servant coming within those Rules is entitled to claim pension and grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount, having regard to service and other allied matters, that it may be necessary for the authority to pass an order to that effrect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was further affirmed by the Apex Court in the case of State of Punjab Vs. Iqbal Singh, reported in AIR 1976, SC, 667.

In the case of D.S.Nakara Vs. Union of India, reported in (1983) 1 SCC, 305, the Apex Court has observed as under :

"From the discussion three things emerge : (1) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch....."

The ratio laid down in these cases had been subsequently followed by the Apex Court in series of its decisions including the case of Secretary, O.N.G.C. Limited Vs. V.U.Warrier, reported in 2005 (5) SCC, 245.

Division Bench of this Court in the case of Mahesh Bal Bhardwaj Vs. U.P. Co-operative Federation Ltd. and another (Supra)  has held that gratuity and other post retiral dues, which the petitioner is otherwise entitled under the Rules, could not have  been withheld either on the pretext that criminal proceedings were pending against the petitioner or for the reason that on the outcome of the criminal trial, some more punishment was intended to be awarded.

Learned Single Judge of this Court in the case of Radhey Shyam Shukla Vs. State of U.P. and another (Supra)  has also taken the similar view and has held that mere pendency of the criminal proceedings would not authorize withholding of gratuity.

Division Bench of this Court in the case of Lal Sharan Vs. State of U.P. and others (Supra)  has held that mere intention to obtain sanction for initiating disciplinary enquiry could not be basis for withholding the post retiral dues unless sanctioned, granted and the disciplinary proceedings started.

Apex Court in the case of State of Punjab and another Vs. Iqbal Singh, (Supra) has further held that since the cut of the pension and the gratuity adversely affects the retired employee as such order can not be passed without giving reasonable opportunity of making his defence.

We have also perused the Government Order dated 28.10.1980, annexure-CA-1 to the counter affidavit, which has been made basis for withholding the part of the pension and allowing the interim pension. This Government Order provides the payment of  interim pension where the departmental proceeding are pending. None of the circular,  Government Order or any provision has been referred before us, which provides that where no departmental proceeding is pending, still the pension can be withheld.

In view of the above, the writ petition is allowed and mandamus is being issued to the respondents to pay full pension to the petitioner within a period of two months from the date of presentation of the certified copy of this order. However, it will be open to the department to proceed afresh after the decision in the criminal case as observed by the appellate authority while certifying the integrity of the petitioner in accordance to law.

Order Date :- 5.10.2013

R./