Rajeev Sharma vs State Of U.P.& 3 Ors.
2014 Latest Caselaw 4177 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 58
 

 
Case :- WRIT - A No. - 66930 of 2013
 

 
Petitioner :- Rajeev Sharma
 
Respondent :- State Of U.P.& 3 Ors.
 
Counsel for Petitioner :- Indra Raj Singh
 
Counsel for Respondent :- C.S.C.,Shivam Yadav
 

 
Hon'ble Suneet Kumar,J.

Heard Shri Adarsh Singh holding brief of Shri I.R.Singh and Shri  Shivam Yadav appearing for Power Corporation.

The petitioner was working  as Junior Engineer with the respondent Power Corporation  since 1.4.1975, retired on 30.4.2009 on attaining the age of superannuation.  During service, petitioner was prosecuted in Criminal Case under section 7/13(2) read with Section 13(1)(D) of Prevention of Corruption Act, 1988.

Pursuant thereof, no disciplinary proceedings was initiated against the petitioner. In the trial petitioner was acquitted on 14.3.2005.

Aggrieved, Government Appeal No. 2602 of 2002 (State of U.P versus Rajeev Sharma) was filed which was admitted.

On superannuation on 30.4.2009 the petitioner approached the respondent authorities for retiral benefits including pension, when no decision was taken , the petitioner approached the court by filing writ petition no. 55327 of 2011 (Rajiv Sharma versus State of U.P and others) which was disposed of by order dated 26.9.2011 directing the authorities to decide the petitioner's representation.

By the impugned order dated 22.11.2012 passed, pursuant to the order of the Court, the Chief Engineer (Jal Vidyut), U.P Power corporation Ltd., respondent no. 3 rejected the claim of the petitioner solely for the reason that Criminal Appeal, against acquittal is pending, the retiral dues shall, thus, be paid after decision in the Criminal Appeal No.2602 of 2002.

The submission of the learned counsel for the petitioner is that the petitioner was acquitted in the criminal case, during the pendency of the trial or appeal, the respondent authorities did not initiate any disciplinary proceedings under the rules, the petitioner having since retired, on attaining the age of superannuation, there being no provision under the rules to withhold the petitioner's post retiral benefits pending criminal appeal, thus, the petitioner is entitled to the post retiral dues.

In support of his submission, the learned counsel for the petitioner has relied upon State of Jharkhand and others versus Jitendra Kumar Srivastava and another (2013) 3 UPLBEC 2369 and decision dated 1.8.2014 rendered in Writ Petition No.19693 of 2012 (Amir Lal versus Chief Election Officer and others).

In rebuttal Shri Shivam Yadav, learned counsel for the respondent Power Corporation submits that since judicial proceedings has not culminated, the state appeal is pending hence the retiral benefits cannot be released even though the petitioner has been acquitted in the criminal trial.

Rival submissions fall for consideration:

Supreme Court in State of Jharkhand and others vs. Jitendra Kumar Srivastava and another [2014 (1) AWC 159 (SC)] considered as to whether in absence of any provisions in the pension rules, State Government can withhold a part of pension or gratuity during the pendency of the departmental or disciplinary proceedings. Paragraph 11 is as follows:-

"11. Reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. ONLY when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/ gratuity when such departmental proceedings or judicial proceedings are still pending."

Division Bench of this Court in State of U.P. and others vs. Jai Prakash [(2014) 1 ADJ 207] relying upon Supreme Court judgment held that pension would include gratuity and the gratuity cannot be withheld merely due to pendency of criminal case unless there is a specific provision under the Rules. The Court was dealing with the provisions of Civil Service Regulations, 1920, which provided for withholding of gratuity Paragraphs 8, 9 and 10 are as follows:-

"8. The learned Single Judge, in the present case, has proceeded on the basis that neither in regulation 351 nor in regulation 351-A is a withholding of gratuity contemplated during the pendency of a judicial proceeding. The learned Single Judge, with respect, has overlooked the provisions of regulation 351-AA and a specific bar which is contained in regulation 919-A (3). In view of the specific prohibition which is contained in regulation 919-A (3), no death-cum-retirement gratuity would be admissible until the conclusion of a departmental or judicial proceeding. The expression 'judicial proceeding' would necessarily include the pendency of a criminal case.

9.In a judgement of a Division Bench of this Court in Shri Pal Vaish vs. U.P. Power Corporation Limited and another, 2009 (9) ADJ 45 (DB), it has been held that clause 3 of regulation 919-A is a provision which specifically deals with the payment of gratuity during pendency of departmental or judicial proceedings and in view thereof, the payment of gratuity has to be deferred until the conclusion of such a proceeding. The Division Bench also held that the payment of gratuity cannot be made in view of the bar contained in regulation 919-A during the pendency of a criminal case.

10.In a recent judgement of the Supreme Court in State of Jharkhand & Ors. vs. Jitendra Kumar Srivastava & Anr 2, the Supreme Court dealt with the provisions of Rule 43 (b) of the Pension Rules of the State of Bihar as applicable to the State of Jharkhand. Regulation 43(b) was pari materia to regulation 351-A of the Civil Service Regulations in the State of U.P. In that context, the Supreme Court held that Rule 43(b) made it clear that it was permissible for the Government to withhold pension only when a finding is recorded in a departmental inquiry or judicial proceeding in regard to the commission of misconduct while in service and rule 43(b) contains no provision for withholding gratuity when departmental or judicial proceedings are still pending. However, the Supreme Court clarified that though there was no provision for withholding pension or gratuity in the given situation, had there been any such provision in the rules, the position would have been different. In the present case, there is a specific provision contained in regulation 351-AA read with regulation 919-A(3)."

A Division Bench of this Court in writ petition no.19693 of 2012 (Amrit Lal versus Chief Election Officer and Others ) decided on 1.8.2014 observed as follows:

Firstly the pendency of the Criminal Appeal filed by the State cannot be said to be a valid ground for non payment of gratuity amount and in any case after dismissal of the appeal on 17.5.2012, there can be further no justification for not paying the gratuity amount.

The Supreme Court in Dev Prakash Tewari vs. U.P. Cooperative Institutional Service Board [LAWS (SC)-2014-6-14] was considering the case as to whether disciplinary proceedings after retirement of an employee could be continued in absence of any rule to that effect. In paragraph 6 held as follows:-

"6 ..................

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Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits."

In Corporation of the City of Nagpur versus Ramchandra (1981) 2 SCC 714, it is observed that it may not be expedient to continue a departmental enquiry on the very same charges or grounds or evidence, where the accused has been acquitted honourably and completely exonerated of the charges. At the same time, it is pointed out that merely because the accused is acquitted, the power of the authority concerned to continue the departmental enquiry is not taken away nor is its discretion in any way fettered. The same principle is reiterated in Commr.of Police versus Narender Singh (2006) 4 SCC 265.

In Commr. of Police, New Delhi and another versus Mehar Singh (2013) 7 SCC 685, Supreme Court observed that "while the standard of proof in a criminal case is that of proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on par with a clean acquittal on merit after a full-fledged trial, where there is no indication of the witnesses being won over. In R.P. Kapur versus Union of India AIR 1964 SC 787 this Court has taken a view that departmental proceedings can proceed even though a person is acquitted when the acquittal is other than honourable.

" This Court observed that the expressions "honourable acquittal", "acquitted of blame" and "fully exonerated" are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression "honourably acquitted". This Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."

Enquiry commences with the issue of charge-sheet as held in the case of Union of India vs. K.V. Jankiraman (AIR 1991 SC 2010), Union of India vs. Anil Kumar Sarkar, 2013 (4) SCC 161 and State of Andhra Pradesh vs. C.H. Gandhi, 2013 (5) SCC 111; Framing of the charge-sheet is the first step taken for holding enquiry into the allegations on the decision taken to initiate disciplinary proceedings. Service of charge-sheet on the Government servant follows decision to initiate disciplinary proceedings and it does not precede and coincide with that decision (vide Delhi Development Authority vs. H.C. Khurana 1993 (3) SCC 196). Once the enquiry was not initiated or contemplated or pending before the retirement, the same cannot be continued after retirement, unless there is a rule to that effect. The learned counsel for the respondents has failed to show any rule or circular as to whether disciplinary proceedings could be initiated after retirement and under what circumstances, the retiral dues be withheld after acquittal.

The Supreme Court in Mathura Prasad v. Union of India and others, (2007) 1 SCC (L&S) 292), held that when an employee is sought to be deprived of his livelihood for alleged misconduct, the procedure laid down under the rules are required to be strictly complied with:

"When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedure laid down under the sub-rules are required to be strictly followed: It is now well settled that a judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in the manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact, for sufficient reasons may attract the principles of judicial review."

In a recent judgement rendered by Hon'ble Supreme Court in D.D Tewari (D) Thr.Lrs. versus Uttar Haryana Bijli Vitran Nigam Ltd. & Others in Civil Appeal No.7113 of 2014 decided on 1st August 2014. The Supreme Court made the following observation in paragraph 4 & 6:

4. It is an undisputed fact that the appellant retired from service on attaining the age of superannuation on 31.10.2006 and the order of the learned single Judge after adverting to the relevant facts and the legal position has given a direction to the employer-respondent to pay the erroneously withheld pensionary benefits and the gratuity amount to the legal representatives of the deceased employee without awarding interest for which the appellant is legally entitled, therefore, this Court has to exercise its appellate jurisdiction as there is a miscarriage of justice in denying the interest to be paid or payable by the employer from the date of the entitlement of the deceased employee till the date of payment as per the aforesaid legal principle laid down by this Court in the judgement referred to supra. We have to award interest at the rate of 9% per annum both on the amount of pension due and the gratuity amount which are to be paid by the respondent.

6.For the reasons stated above, we award interest at the rate of 9% on the delayed payment of pension and gratuity amount from the date of entitlement till the date of the actual payment. If this amount is not paid within six weeks from the date of receipt of a copy of this order, the same shall carry interest at the rate of 18% per annum from the date of amount falls due to the deceased employee. With the above directions, this appeal is allowed.

Applying the law on the facts of the case in hand, petitioner was falsely implicated in a criminal case for taking bribe of Rs.500 on 22.7.1991, was enlarged on bail on the same day, thereafter placed under suspension on 27.8.1991 and on 16.11.1992, the petitioner was reinstated in service but no departmental proceedings was ever initiated against the petitioner. The petitioner was acquitted in the criminal case on 14.3.2005, even after acquittal no departmental proceedings was initiated. On 30.4.2009, the petitioner retired. Thus mere pendency of Criminal Appeal would not entitle the respondents to withhold the post retiral benefits as the petitioner was acquitted and no proceedings was initiated by the respondents, further petitioner through out the trial continued in service until retirement.

Civil Service Regulation is applicable upon the employees of the power corporation, regulation 351 AA and regulation 919 A(3), prohibits payment of death-cum-retirement gratuity until the conclusion of departmental or judicial proceeding. Division Bench in Jai Prakash (Supra) has held "judicial proceedings" would necessarily include pendency of criminal case. The question to be answered is as to whether pendency of criminal appeal, against acquittal, will include "pending judicial proceeding" In Amrit Lal (Supra), Division Bench observed pendency of criminal appeal against acquittal is not a ground for withholding the retiral dues. After acquittal there is nothing against the employee, more so, in the facts of the case, the respondents did not choose to initiate any disciplinary proceedings after acquittal nor did they examine the judgement of the trial court to find out, as to whether petitioner was acquitted 'honourably', once failing to exercise their powers under the rule to initiate any proceedings, it is not open for the respondents to withhold retiral dues, merely on pendency of criminal appeal.

The impugned order dated 22.11.2012 passed by Chief Engineer (Jal Vidyut), respondent no. 3 and order dated 6.6.2013 passed by Executive Engineer, Electricity Distribution Division, Pilibheet, respondent no. 4 is quashed.

The respondents are directed to release arrears of salary for the suspension period, retiral dues and terminal benefits of the petitioner within three months from the date of service of this order before the competent authority. Interest @ 9% is awarded on delayed payment of pension and gratuity from the date of entitlement to the date of actual payment, failing which same shall carry interest @ 18% per annum from the date the amount falls due.

With the above directions, the writ petition is allowed.

No order as to costs.

Order Date :- 8.8.2014

IB