Shyam Narayan Dubey vs State Of U.P. Through Prin. Secy. ...
2013 Latest Caselaw 5788 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 1537 of 2013
 

 
Petitioner :- Shyam Narayan Dubey
 
Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors.
 
Counsel for Petitioner :- Ramesh Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Sri Ramesh Singh, learned counsel for petitioner, Sri Pankaj Patel, learned Additional Chief Standing counsel and perused the record.

By means of the present writ petition, the petitioner has challenged the impugned order dated 21.12.2012 passed by Superintendent of police, Unnao/O.P.No. 4 by which the post retrial dues/gratuity payable to the petitioner after his retirement on 31.12.2012 has been withheld on the ground that a criminal case is pending against him.

Undispute facts of the present case are that the petitioner initially selected/appointed on the post of Constable in the Civil Police, State of U.P. retired from service on 31.12.2012 from the post of Sub-Inspector (Special Class), after attaining the age of superannuation.

On 21.12.2012, Superintendent of Police, Unnao passed the impugned order on the ground that the post retrial dues/gratuity cannot be paid to the petitioner till the disposal of criminal case No.36 of 2008 pending against him.

Learned counsel for petitioner has challenged the said order on the ground that petitioner while working and discharging his duties as Sub-Inspector (Special Class), made certain investigations in the capacity of Investigating Officer and on the basis of the evidence collected during the investigation against one Sri Vijay Mishra lodged an FIR against him.

Subsequently, Sri Vijay Kumar Mishra moved an application under Section 156(3) Cr.P.C. and on investigation a final report was submitted by the Investigation Officer on the basis of evidence collected during investigation. But, Sri Vijay Kumar Mishra, filed a protest petition, the Judicial Magistrate, Fatehpur, by order dated 18.12.2008 rejected the final report and summoned the petitioner along with others under Sections 323/504/506/342/392/427 I.P.C. Accordingly, the petitioner and other officers surrendered before the competent criminal court, released on bail.

Thereafter, the petitioner along with the other officers gave an application/objection dated 15.03.2011 claiming protection under Section 197 Cr.P.C. that they cannot be prosecuted unless proper sanction has not been obtained from the competent authority, rejected by order dated 28.04.2011 by Judicial Magistrate, Fatehpur, challenged by filing criminal revision No. 106/2011, rejected by order dated 02.06.2011 by Sessions Judge, Fatehpur. The said order has been challenged by filing Application under Section 482 (application under Section 482 No. 1092 of 2011, Rajendra Kuamr Tiwari Vs. State of U.P. and others) before this Court at Allahabad , on 14.10.2011, an order passed, relevant portion of the same reads as under:-

"In view of the above till the next date of listing no coercive action shall be taken against the applicants in Criminal Case No.3289 of 2009, State Vs Amar Bahadur Singh and others, under Section 323,504,506,342,395,427 IPC Police Station Husainganj, District Fatehpur."

In view of the said factual background, Sri Ramesh Singh, learned counsel for petitioner submitted that the impugned order dated 21.12.2012 (annexure No. 1) passed by O.P.No. 4 withholding the post retrial dues/gratuity payable to the petitioner is an action wholly illegal and arbitrary in nature and contrary to the provisions as provided under Sub-Clause 6(6) of the Payment of Gratuity Act. Because no disciplinary proceeding or departmental proceeding has ever been initiated against the petitioner till the date of his retirement, so on the basis of criminal case pending against him, the O.P.No. 4/Superintendent of Police, Unnao has got no authority to withhold the post retrial dues/gratuity payable to the petitioner in view of the law as laid down by this Court in the case of Bangali Baboo Mishra Vs. State of U.P. and others, 2003 (3) AWC 1760, Brahma Lal Vs. Union of India, 2004 (22) LCD 486, Amod Prasad Rai Vs. State of U.P. and another, 2009 (27) LCD 1005., Som Prakash Rekhi Vs. Union of India and others, 1981 (1) SCC 449 and Dr. Sheetla Prasad Nagendra Vs. Gorakhpur University and others, 1998 (16) LCD 1277., hence the impugned order being contrary to law, liable to be set aside.

Sri Pankaj Patel, learned Additional Chief Standing Counsel while defending the impugned order submits that a criminal case No. 36 of 2008 under Sections 323/250/506/342/392/420 I.P.C., Police Station, Hussainganj, Fatehpur has been lodged against the petitioner still pending before the competent criminal court/Judicial Magistrate, Fatehpur, so in view of the said fact as well as the Government Order dated 28.08.1980 (specially clause-2 of the said Government Order), the O.P.No. 4 is fully empowered to withhold the post retrial dues/gratuity of the petitioner, the said clause of the Government Order reads as under:-

"इस प्रश्न पर गंभीरतापूर्वक विचार करने के उपरांत तथा इस बात को देखते हुए की राज्य में प्रयुक्त नियमो और आदेशो के अंतर्गत सामान्यतः सेवा निवृत कर्मचारी को पेंशन तथा ग्रेचुइति के अंतिम रूप से निर्धारित न हो सकने पर अंतिम पेंशन/ग्रतुइत्य स्वीकार किये जाने की व्यस्था है, श्री राज्यपाल महोदय ने सहर्ष यह आदेश प्रदान किये है की सेवा निवृत होने वाले ऐसे राज्य कर्मचारियों को, जिनके विरुद्ध सेवा निवृति के समय विभागीय न्यायिक कार्यवाही अथवा प्रशाश्निधिकरण/सतर्कता जाँच चल रही हो अथवा किया जाना अस्तित्व हो अनंतिम पेंशन का भुगतान अधिकृत कर दिया जाए किन्तु ग्रतुइत्य का भुगतान किसी भी दशा में उक्त कारवाही या जाँच पूरी होने और अंतिम निर्णय होने के पूर्व न किया जय | ग्रतुइत्य को धनराशी से वह कटौतिया की जायेंगे जिनका उल्लेख विभागीय प्रशानिक/कार्यवाही इत्यादि के फलस्वरूप पारित आदेश में किया गया हो | ऐसे मामलो में अनंतिम पेंशन की स्वीकृति निम्न व्यस्था के अधीन के होगी."

Thus, he submits that there is no illegality or infirmity in the impugned order dated 21.12.2012 (Anneuxre No. 1) passed by Superintendent of Police, Unnao/O.P.No. 1 withholding the post retrial dues/gratuity payable to the petitioner on the ground that the criminal case is pending, so writ petition lacks merit and liable to be dismissed.

I have heard learned counsel for parties and gone through the record.

On the basis of the factual controversy, as stated above, the core question to be decided in the present case "whether the action on the part of O.P.No. 4/Superintendent of Police, Unnao thereby withholding the post retrial dues/gratuity payable to the petitioner after his retirement on the sole ground that a criminal proceeding is pending against him when no financial loss has been caused by the petitioner during the tenure of his services or the matter in which the criminal case is pending in respect to the duties/work done by him in the department.

A Division Bench of this Court in the case of Bangali Baboo Mishra Vs. State of U.P. and others, 2003 (3) AWC 1760, held as under:-

"A bare perusal of the aforesaid paragraph of the Government order reveals that it relates to such a Government servant against whom some departmental/ judicial or administrative enquiry is pending on the date of retirement. It nowhere provides that if criminal proceedings are pending, even then the said Government order would apply. Suffice it would to mention that such a provision could not have been made for the simple reason that unless departmental proceedings have been initiated or some judicial or administrative proceedings have been initiated for the purpose of determining the guilt of the Government servant during the course of service, mere pendency of the criminal proceedings cannot be a ground for taking any action against the petitioner with respect to payment of his post-retiral dues. It may be taken note of that Rule 470B of the Civil Service Regulations is no more available as the same has been deleted. Any departmental enquiry with respect to a Government servant, cannot be either initiated or continued after he reaches the age of superannuation otherwise in accordance with the provisions of Regulation 351A of the Civil Service Regulations as per the aforesaid Regulations. The aforesaid regulation is being reproduced below :

"351A. The Provincial Government reserve to themselves the right to order the recovery from the pension of an officer who entered service on or after 7th August, 1940 of any amount on account of losses found in judicial or departmental proceeding to have been caused to Government by the negligence or fraud of such officer during his service :

Provided that :

(1) such departmental proceedings, if not instituted while the officer was on duty.

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

(ii) shall be instituted before the officer's retirement from service or within a year from the date on which he was last on duty whichever is later ;

(iii) shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty ; and

(iv) shall be conducted by such authority and in such places whether in India or elsewhere, as the Provincial Government may direct ;

(2) all such departmental proceedings shall be conducted, if the officer concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made ; and

(3) such judicial proceedings, if not instituted while the officer was on duty, shall have been instituted in accordance with Sub-clauses (ii) and (iii) of Clause (1)."

8. The aforesaid Regulation also cannot be of any assistance in the instant case as it reserves a right to the Government for ordering recovery from the pension of an officer who entered service on or after 7th August, 1940, 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 the service. It is not the case of the opposite parties that any departmental proceedings or judicial proceedings were initiated or pending against the petitioner for any alleged losses caused to the Government by his negligence or fraud during his service. The Government order has to be read in the light of the provisions of aforesaid Regulations and any interpretation enlarging the scope of the Government order would mean to read beyond the terms of the Government order and the same would also be rendered contrary to the provisions of Regulation 351A of the Civil Service Regulations, which would not be permissible.

9. The petitioner was subjected to a trap case for an alleged amount of Rs. 100 in the year 1990. The State could not even submit charge-sheet prior to the filing of the writ petition and it was only when this petition was filed in this Court, it has been informed by the learned standing counsel that charge-sheet has been submitted in the Court on 6th November, 2002. We are not commenting on the criminal proceedings which may take its own course but would like to observe that the State should be prompt in concluding the criminal proceedings, if initiated against the Government servant and the matter should not be allowed to linger as it some times gives undue advantage to the charged Government servant and sometimes, it adversely affects the Government servant and his family. The right of speedy trial, being a fundamental right as declared by the Apex Court could not be defeated or marred in any manner. Since there is no provision under any of the Service Rules or the Government orders or any other law and at least no such provision has been cited before us by the learned standing counsel, even if the petitioner is subjected to any punishment in the criminal proceedings that would be of no consequence so far his service tenure or service benefits are concerned. In view of the above, we are of the view that the action of opposite parties in not releasing the entire post-retiral benefits or dues to the petitioner on the ground of pendency of criminal proceedings in a trap case, cannot be said to be reasonable or legal.

10. We, therefore, allow the writ petition. A mandamus is hereby issued directing the opposite parties to release the entire post-retiral dues of the petitioner including the gratuity, pension, commutation, leave encashment, Group Insurance etc. which shall be paid to the petitioner within a period of three months from the date the certified copy of this order is produced before the authorities concerned. The petitioner shall be allowed to continue to be paid provisional pension within the aforesaid period. The opposite parties shall fix the final pension and shall pay the same regularly thereafter. The arrears of the entire amount such as difference of pension shall also be paid to the petitioner within the aforesaid period of three months."

In the case of Brahm Lal Vs. Union of India, 2004 (2) LCD 486, this Court after taking into consideration the law as laid down by Hon'ble the Supreme Court in the case of Som Prakash Rekhi Vs. Union of India and others, 1981 (1) SCC 449, R. Kapur VS. Director of Inspection (Painting and Publication) Income Tax and antoher,, 1994 (6) SCC 589, Dr. Sheetla Prasad Nagendra Vs. Gorakhpur University and others, held that withholding or deduction of post retrial dues including gratuity or provident fund cannot be stopped as a set for outstanding dues against a retired employees.

After considering the relevant provisions of Payment of Gratuity Act, 1972, quoted as under:-

"Section 4 Sub-clause (1) says that gratuity shall be payable to an employees on the termination of his employment after he has rendered continuous service for not less than five years--(a) on his superannuation; (b) on his retirement or resignation; or (c) on his death or disablement due to accident or disease; and Sub-clause (6) reads as under:

(6). Notwithstanding anything contained in Sub-section (1)--

(a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss or destruction of property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused;

(b) the gratuity payable to an employee may be wholly or partially forfeited--

(i) If the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or

(ii) If the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment."

This Court in the case of Amod Prasad Rai Vs. State of U.P. and another, 2009 (27) LCD 1005, after considering the abovesaid provisions of Payment of Gratuity Act, held as under:-

"Para No. 14 - Since I am satisfied that the amount has wrongly been recovered from the gratuity payable to the petitioner and is contrary to the provisions of the Act, I am not entering into the other aspect of the case that whether the enquiry was conducted in accordance with law or not.

Para No. 15 - At this juncture, it is useful to mention that withholding the gratuity is not permissible under any circumstance other than those enumerated in Section 4(6) of the Act and right to gratuity is a statutory right. See K.C. Mathew v. Plantation Corporation of Kerala Ltd. 2000 II LLJ 637 (Ker)."

In the case of Radhey Shyam Shukla Vs. State of U.P. and others, 2009 (4) UPLBEC 3045, it is held as under:-

"Normally, as urged by the learned Standing counsel, "judicial proceedings" would also include a criminal trial. However, the meaning ascribed to a word has to be given keeping in mind the intention of the legislature and the object which it sought to achieve while using it. A reading of the aforesaid provision shows that "judicial proceeding" has been used for the purpose of any administrative action or which may have given rise to a "judicial proceeding" relating to the conduct of the Government servant. One of the main object of withholding gratuity is to compensate the Government the loss caused by the Government servant in his functioning as such. In the present case the criminal case relates to two individuals and the trial cannot in any manner fix responsibility of any loss to the Government. In fact, there is no case set up in the counter affidavit that the decision in the pending criminal trial between two individuals would in any way enable the Government to realize any alleged loss. In fact no loss has even been attributed to the petitioner. A Division Bench of this Court in the case of Bangali Babu Misra Vs. State of U.P. and others [2003 (3) AWC 1760] has considered the effect of the Government order which has been incorporated in the Rules and has held that mere pendency of criminal proceedings would not authorise withholding of post retiral benefits including gratuity. The aforesaid decision has been followed subsequently in the case of Mahesh Bal Bhardwaj Vs. U.P. Cooperative Federation Ltd. and another [2007 (10) ADJ 561]. "

In the case of Mahesh Bal Bhardwaj Vs. U.P. Cooperative Ltd. and others Vs. U.P. Cooperative Federation Ltd. and others, 2007 (10)ADJ 561, this Court held as under:-

"We are thus, of the considered opinion that gratuity and other post retiral dues, to which the petitioner is otherwise entitled under 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. The delay in making the payment of gratuity, therefore, entitles the petitioner to get the statutory interest as provided under Section 7 of the Payment of Gratuity Act."(The same view was further reiterated by means of judgment and order dated 30.08.2012 passed by this Court in Writ Petition No. 582 of 2010 (Ram Pal Singh Vs. State of U.P. and others).

In regard to withholding of post retrial dues/gratuity, a Division Bench of this Court by means of judgment and order dated 24.01.2013 passed in Special Appeal Defective No. 84 of 2013 (State of U.P. Vs. Narain Singh), relevant portion quoted as under:-

"That Regulation 351-A expressly provides that withholding is permissible only if the pensioner is found guilty either in departmental or judicial proceedings.

The case of appellants is that some judicial proceedings are pending. There is no case on facts that the private respondent has been found guilty either in a departmental proceeding or in a judicial proceeding. It is not even there case that any determination has been made regarding the respondent having caused any pecuniary loss to the Government.

In the circumstances, this appeal is totally without merit, and is accordingly dismissed. "

In the case of Harnam Singh Yadav Vs. State of U.P. and others, 2012 (30) LCD 662, this Court after considering the para No. 2 of the Government Order dated 28.10.1980, held as under:-

"Para No. 6 - Learned counsel for opposite party laid emphasis upon the G.O. Dated 28.10.1980 in which in para 2 provisions have been made regarding payment of interim pension. A bare perusal of the aforesaid para of the aforementioned G.O. reveals that it relates to such government servant against whom some departmental judicial or administrative inquiry is pending on the date of retirement. But it nowhere provides that if criminal proceedings are pending even then the said G.O. would be applicable. Suffice, it would be to mention that such a provision could not have been made for the simple reason that unless departmental proceedings have been initiated or some judicial or administrative proceedings have been initiated for the purpose of determining the guilt of the government servant during the course of his service, mere pendency of a criminal proceedings cannot be a ground for taking any action against the petitioner with respect to payment of his post retiral dues.

Para No. 9 - A bare perusal of the aforesaid section makes it abundantly clear that the circumstances as enumerated in the aforesaid section does not extended at all in the case of the petitioner, therefore, the order of stopping the gratuity of the petitioner was not in accordance with law. This court in the case of Amod Prasad Rai vs. State of U.OP. And another reported in [2009 (27) LCD 1005] has held that withholding of gratuity is not permissible in any circumstance other than those enumerated in section 4 (6) of the Payment of Gratuity act and held that right to gratuity is a statutory right. It is no where the case of the opposite party that because of the aforementioned criminal proceeding any loss was occasioned to the department or such an offence was committed during the course of his employment. It is also nowhere the case of the opposite party that any amount has to be recovered from the petitioner as out standing dues against him towards the department. This court in the case of Radhey Shyam Shukla vs. State of U.P. and others reported in [(2009) 2 UPLBEC 3045] has held as under ,

"Normally, as urged by the learned Standing counsel, "judicial proceedings" would also include a criminal trial. However, the meaning ascribed to a word has to be given keeping in mind the intention of the legislature and the object which it sought to achieve while using it. A reading of the aforesaid provision shows that "judicial proceeding" has been used for the purpose of any administrative action or which may have given rise to a "judicial proceeding" relating to the conduct of the Government servant. One of the main object of withholding gratuity is to compensate the Government the loss caused by the Government servant in his functioning as such. In the present case the criminal case relates to two individuals and the trial cannot in any manner fix responsibility of any loss to the Government. In fact, there is no case set up in the counter affidavit that the decision in the pending criminal trial between two individuals would in any way enable the Government to realize any alleged loss. In fact no loss has even been attributed to the petitioner. A Division Bench of this Court in the case of Bangali Babu Misra Vs. State of U.P. and others [2003 (3) AWC 1760] has considered the effect of the Government order which has been incorporated in the Rules and has held that mere pendency of criminal proceedings would not authorise withholding of post retiral benefits including gratuity. The aforesaid decision has been followed subsequently in the case of Mahesh Bal Bhardwaj Vs. U.P. Cooperative Federation Ltd. and another [2007 (10) ADJ 561]."

Accordingly, reliance placed by learned State counsel that para No. 2 of the Government Order dated 28.10.1980, the action on the part of O.P. No. 4 thereby withholding the post retiral dues/gratuity of the petitioner on the ground that a criminal case is pending against him in respect to the incidence which takes place prior to his retirement has got no force and rejected.

Recently Hon'ble the Apex Court in Civil Appeal N o. 670 of 2013 ( State of Jharkhand and others Vs. Jitendra Kumar Srivastava and others) (arising out Special Appeal Petition (Civil) No. 1247 of 2009) by means of judgment and order dated 14.08.2013 held as under:-

"Para No. 2 - Crisp and short question which arises for consideration in these cases is as to whether, in the absence of any provision in the Pension Rules, the State Government can withhold a part of pension and/or gratuity during the pendency of departmental/ criminal proceedings?

Para No. 7 - It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service. Conceptually it is so lucidly described in D.S. Nakara and Ors. Vs. Union of India; (1983) 1 SCC 305 by Justice D.A. Desai, who spoke for the Bench, in his inimitable style, in the following words:

"The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service?

-

What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.

The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors.[1971] Su. S.C.R. 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect 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 reaffirmed in State of Punjab and Anr. V.s Iqbal Singh, (1976) IILLJ 377SC".

Para No. 8 - It is thus hard earned benefit which accrues to an employee and is in the nature of "property". This right to property cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India.

Para No. 13 - In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum--

Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court.

Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in "property".

Para No. 14 - Article 300 A of the Constitution of India reads as under:

"300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law."

Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.

Para No. 15 - It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold -

even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different."

Thus, keeping in view the facts of the instant case that petitioner is retired employee of the Police Department of the State of U.P. and prior to his retirement, a criminal case is pending against him in respect to the work discharged by him in the official capacity by which no financial loss has been occurred to the government which is to be recovered from him later on the basis of outcome of the criminal case which is pending against the petitioner on the basis of which his post retiral dues/gratuity payable to the petitioner has been withheld, so the impugned order dated 21.12.2012 passed by O.P.No. 4 thereby withholding the post retiral dues/gratuity of the petitioner on the ground that the criminal proceeding is pending against him and the same may be payable to him after result of the said criminal case is contrary to law, liable to be set aside.

For the foregoing reasons, writ petition is allowed, impugned order dated 21.12.2012 passed by O.P.No. 4 is set aside.

Order Date :- 13.9.2013

Ravi/