Allahabad High Court
Ram Nagina Singh vs State Of U.P. & Others on 30 April, 2014
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 29
Case :- WRIT - A No. - 66995 of 2008
Petitioner :- Ram Nagina Singh
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- H.P. Mishra
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Heard Sri H.P. Mishra, learned counsel for the petitioner and learned Standing Counsel for the State authority.
The present petition has been filed for challenging the order impugned dated 18.10.1988 whereby the recovery of Rs. 6841/- allegedly paid in excess to the petitioner, was directed by the respondent no. 2, Accountant General, (Lekha and Hakdari)-I, U.P., Allahabad. A further prayer to release entire difference of arrears of pension, gratuity etc. including various allowances has also been made by the petitioner.
During the course of argument and on perusal of record, it transpires that there was a criminal case pending against the petitioner being Criminal Case No. 398 of 1995 wherein the petitioner was also detained in jail from 31.10.1995 to 31.11.1995 and on this ground provisional pension is being paid to the petitioner.
A counter affidavit has been filed on behalf of the respondents no. 3 to 5 wherein the grant of such provisional pension during the pendency of the criminal appeal was sought to be supported. It was also stated in paragraph 4 of the counter affidavit that 90% gratuity, GPF has already been paid to the petitioner and for remaining 10% GPF amount, a letter has already been written to the respondent no. 2. Insofar as the amount of Rs. 6841/- allegedly paid in excess to the petitioner, it was submitted that from the order under challenge, passed by respondent no. 2, the amount is clearly liable to be recovered from the petitioner. It was further stated that the altogether allowances like washing, food, bonus etc. have already been paid to the petitioner.
Learned counsel for the petitioner has relied upon the judgement of this Court in the case of Narendra Kumar Singh vs. State of U.P. decided on 5.10.2013. In the aforesaid judgement also the interim pension was being paid on the ground that the criminal case is pending against the petitioner. The Division Bench of this Court relied upon various decisions of the Apex Court held that pendency of criminal case is no ground for withholding the pension of the employee and a direction to pay full pension was made by the Court. It would be appropriate to abstract paragraph 7, 8, 9, 14 and 15, which is quoted below:
7. "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.
8. 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....."
9. 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.
14. 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.
15. 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."
Admittedly, no disciplinary action is pending against the petitioner and it is merely on the basis of the pendency of the criminal proceedings the petitioner is being paid interim pension.
In my opinion, the aforesaid judgement is fully applicable to the present case and the petitioner is entitled for full pension. However, since the recovery of Rs. 6841/- is being made on the basis of the direction of the Accountant General, (Lekha and Hakdari)-I, U.P., Allahabad, respondent no. 2, I find that no reason worth taking into consideration either from the report or on the basis of the argument advanced by the petitioner to interfere in the recovery being made in pursuant to the letter dated 18.10.2008. The aforesaid amount is liable to be adjusted from the payment made henceforth to the petitioner.
It is made clear that as left open by the Division Bench of this Court in Narendra Kumar Singh vs. State of U.P.(supra), it will be open to department to proceed afresh after decision in a criminal case in case the department after initiating the proceedings is satisfied that the petitioner is liable for loss caused to the department or for any misconduct if proved in such proceedings.
It is expected that the respondent will proceed with the matter, as expeditiously as possible strictly in accordance with law, preferably within a period of six months.
With the aforesaid observations, the writ petition is allowed.
Date: 30.4.2014
Puspendra
