Surendra Pal vs State Of U.P. Through Prin. Secy. ...
2015 Latest Caselaw 5519 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Judgment reserved on: 29.10.2015
 
           Judgment delivered on:17.12.2015
 

 
Court No. - 10
 

 
Case :- SERVICE SINGLE No. - 296 of 2015
 

 
Petitioner :- Surendra Pal
 
Respondent :- State Of U.P. Through Prin. Secy. Deptt. Of Home Lko. & Ors.
 
Counsel for Petitioner :- Rajeev Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajan Roy,J.

Heard Shri Rajeev Singh, learned counsel for the petitioner and learned Standing Counsel for the State.

By means of this writ petition a challenge has been made to an order dated 17.12.2014 passed by the Superintendent of Police, Barabanki intimating the petitioner about his impending retirement on 31.12.2014 and also communicating that in view of Government Order dated 28.10.1980, provisional pension of Rs. 14,305/- and admissible allowances payable per month was being sanctioned but the gratuity would be payable only after conclusion of the criminal proceedings pending against him.

The challenge is primarily on the ground that there is no provision under which the gratuity of the petitioner could be withheld. Reference has been made in this regard to Regulation 351-A, 351-AA and 919-A of the Civil Service Regulations as also the provisions of the Payment of Gratuity Act, 1972 and the decision reported in 2014 (32) LCD 381, Shyam Narayan Dubey Vs. State of U.P. and Others. It has been submitted that no financial loss has been caused on account of any action of the petitioner, therefore, gratuity can not be withheld. Reliance has been placed upon the decision of the Division Bench of this Court in the case of Bengali Babu Misra Vs. State of U.P. and another, 2003 (50)ALR 538 as also another decision of this Court in the case of Mahesh Bal Bhardwaj Vs. U.P. Co-operative Federation Ltd. and another, 2007 (10) ADJ 561 (LB)(DB).

Learned Standing Counsel on the other hand opposed the claim of the petitioner relying upon a recent Division Bench judgment dated 17.12.2013 rendered in Special Appeal Defective No. 1278 of 2013, State of U.P. and others Vs. Jai Prakash.

Learned counsel for the petitioner also relied upon the judgment of the Division Bench dated 25.04.2014 rendered in Special Appeal Defective No. 416 of 2014, State of U.P. And others Vs. Faini Singh to contend that even if gratuity could be withheld, it could not have been done mechanically but only after due application of mind to the facts of the criminal case and the alleged conduct of the petitioner in respect thereof.

The petitioner herein has retired from service on 31.12.2014. While in services, he was arrested by the Anti Corruption Organization for accepting illegal gratification of Rs. 1,000/- from an accused, namely, Amar Singh. As per the petitioner's own averments made in the paragraph no. 5 of the writ petition, a criminal trial i.e. S.T. No. 60 of 2006, Case Crime No. 26 of 2006, under Section 7/13 (2) of Prevention of Corruption Act is pending in the Court of Special Judge, Anti Corruption, Gorakhpur, therefore, obviously the charge sheet has been filed against the petitioner.

Regulation 351-A reads as under:-

"351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused Government, if the pensioner is found in departmental or Judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement."

Explanation (b) to the second proviso of Regulation 351-A, inter alia, provides as follows:

"(b) judicial proceedings shall be deemed to have been instituted:

(i)in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal court ; and

(ii)in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to a civil court."

Regulation 351-AA reads as under:-

"351-AA. In the case of a Government Servant who retires on attaining the age of superannuation or otherwise and against whom any departmental or Judicial proceedings or any enquiry by Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement a provisional pension as provided in Regulation 919-A may be sanctioned."

Regulation 919-A, which reads as under:-

"919-A. (1) In case referred to in Regulation 351-AA the Head of Department may authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government servant or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was placed under suspension.

(2) The provisional pension shall be authorised for the period commencing from the date of retirement upto and including the date on which after conclusion of departmental or judicial proceeding or the enquiry by the administrative Tribunal; as the case may be, final orders are passed by the competent authority.

(3) No death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings or the enquiry by the Administrative Tribunal and issue of final orders thereon.

(4)Payment of provisional pension made under clause (1) above shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of the proceedings or enquiry referred to in clause (3) but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or withheld either permanently or for special period."

So far as the contention of the counsel for the petitioner that there is no provision for withholding the gratuity on mere pendency of a criminal case is concerned, the same is misconceived for the reason such provision is contained in Regulation 919-A.

The issue in question has already been considered by several Division Benches of this Court. This issue came up for consideration in a Special Appeal before this Court in the case of Jai Prakash (supra). The learned single Judge of this Court had held that there was no provision under which gratuity payable to a government servant could have been withheld merely on account of pendency of judicial proceedings as there was no provision for doing so. The Division Bench had the occasion to consider the provisions of Regulations 351, 351-A, 351-AA and 919-A. It opined that the provisions of Regulation 351-A were applicable in a situation where a departmental or judicial proceedings had come to an end and the petitioner had been found guilty of grave misconduct therein or if the petitioner is found in departmental or judicial proceedings to have caused pecuniary loss to the government for his misconduct or negligence during service or on reappointment. In such a situation, the Government had the power to withhold or withdraw the pension and power to recover any pecuniary loss suffered. Regulation 351-A postulated a determination in departmental proceedings and judicial proceedings. However, Regulations 351-A and 919-A dealt with a situation where departmental or judicial proceeding or any inquiry by the Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement in which cases a provisional pension under Regulation 919-A may be sanctioned. Where a departmental or judicial proceeding is pending on the date of retirement, regulation 351-AA stipulates that a provisional pension would be admissible and the modalities for the payment of a provisional pension are prescribed under Regulation 919-A. Regulation 919-A (3) contains an expression prohibition on the payment of death-cum-retirement gratuity to a government servant until the conclusion of the departmental proceeding, judicial proceeding or as the case may be, an inquiry by the Administrative Tribunal. The Division Bench also took note of Regulation 41 of the Civil Service Regulations which provides that except when the term 'Pension' is used in contradistinction to gratuity, 'Pension' would include gratuity. It held consequently that Regulation 919 (3) which contains a bar on the payment of gratuity till the conclusion of a departmental or judicial proceeding would allow the payment of provisional pension stipulated in Clause (1) of Regulation 919-A.

Based on the aforesaid reasoning it held that the learned Single Judge had overlooked the provisions of Regulation 351-AA and a specific bar which is contained in Regulation 919-A (3). It was further held that 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 including the pendency of a criminal case.

The Division Bench in Jai Prakash's case (supra) also took note of in earlier Division Bench in the case of Sri Pal Vaish Vs. U.P. Power Corporation Limited and another reported in 2009 (19) ADJ 54 and the decision of the Supreme Court in the case of State of Jharkhand Vs. Jitendera Kumar Srivastava and Anr., JT 2013 (11) SC 35.

The Division Bench in Sri Pal Vaish's case (supra) has also 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 had to be deferred until the conclusion of such a proceeding. The payment of gratuity could not be made during the pendency of a criminal case.

The Division Bench in Jai Prakash's case (supra) specifically noted that in the case of State of Jharkhand (supra) there was no provision for withholding gratuity when departmental or judicial proceedings were 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, thus, it held that this judgment of the Supreme Court had no application with respect to the employees of the State of Uttar Pradesh as there is specific provision contained in Regulation 351-AA read with Regulation 919-A(3). The Division Bench upheld the order of the Superintendent of Police withholding the payment of gratuity until the conclusion of the criminal trial as being in tune with the aforesaid Regulations.

The aforesaid decision in Jai Prakash's case (supra) came for consideration before another Division Bench in Faini Singh's case (supra) and the said Division Bench after agreeing with the proposition of law laid down in Jai Prakash's case (supra) observed in para 10 that the discussion in State of U.P. Vs. Jai Prakash's case (supra) opens up another question to be considered namely whether the power under Section 351-AA read with Regulation 919-A can be used mechanically on the pendency of any judicial proceedings against the government servant, without considering the allegations against him. The Court observed that the power vested in the authority has to be utilized bonafidely for the purposes for which such power is given. The discretion given should not consume the power for which such discretion is to be exercised. The Court further opined that the existence of the power by itself does not justify the exercise of power. Considering the facts of the case before it the said Division Bench quashed the impugned order for this reason and not for the reason that there was no provision for withholding the gratuity. In the said case, facts of the said case were very different from the facts of the present case and presented a peculiar situation where the petitioner was a guarantor of the loan taken by one Shri Ram, evidence was collected by the C.I.D. regarding giving of some amount by Shri Ram to the petitioner from his bank account, there was no allegation in the F.I.R. attributing any act of deception or fraud on the part of Faini Singh the petitioner. The Court was of the view that even if he was beneficiary of the loan, which was taken by playing fraud, he had deposited the entire amount as the guarantor when he received a show cause notice. These circumstances were neither examined nor considered by the competent authority while exercising powers under Regulation 351-AA read with Regulation 919-A in withholding the gratuity and in withholding pension to be paid to him, therefore, the Court opined in Para 21 in Faini Singh's case (supra) as under:-

"21. We may point out that a mere pendency of any judicial proceeding cannot be a ground to exercise the powers under Article 351AA read with Regulation 919A for withholding the retiral dues. The nature of allegations and the gravity of charge has to be taken into consideration by the competent authority before making an order to withhold the retiral dues. In case the pendency of any judicial proceeding is held to be sufficient, a minor offence or even a parking ticket may be a ground to withhold the pension of a retired employee. Such a situation is not contemplated under the powers conferred on the competent authority under the Civil Services Regulations".

It is not out of place to refer another Division Bench's Judgment in the case of Bhagwati Prasad Verma Vs. State of U.P. and others rendered in Civil Misc. Writ Petition No. 52482 of 2003 decided on 10.09.2007 wherein this Court considered the provisions of Rule 10 of U.P. Liberalization Pension Rules, 1961 and Rule 9 of U.P. Retirement Benefit Rules, 1961 and came to the conclusion that the payment of gratuity could not have been stopped by the concerned Officer as also that the term 'Pension' used in Article 351-A of the Civil Service Regulation did not include gratuity. The action impugned therein was quashed also on the ground that the manner in which power was exercised, was not sustainable as it was not in accordance with the principles of natural justice as also other mandatory statutory provisions.

On consideration of the said judgment, I find that the issues involved therein were different from the one involved herein. In that case, the departmental proceedings had been concluded and thereafter the action impugned had been taken. It is in this light that Rule 9 & 10, referred herein above, were considered. It was not a case where the gratuity was temporarily withheld on account of pendency of departmental or judicial proceedings. Moreover, Rule 9 & 10 of the above mentioned Rules of 1961 relate to recovery of gratuity and family pension i.e. the action contemplated therein, is, after the conclusion of the departmental and judicial proceedings, therefore, the said provisions apply to a different fact situation. The Division Bench in Bhagwati Prasad Verma's case did not have the occasion to consider Article 919-A Sub Rule 3 which directly deals with the issue of withholding of gratuity during pendency of such proceedings. It is not in dispute that the provisions contained in Civil Service Regulations are also applicable in matters pertaining to the payment or withholding of pension, gratuity etc. The Division Bench judgment in Bhagwati Prasad Verma's case does not lay down any proposition of law to the contrary. In fact, a perusal of the same reveals that it impliedly accepts the application Civil Service Regulations also for the purpose of withholding of pension under Article 351-A and opines that so far as withholding of gratuity, family pension under the said provision are concerned, the same could be done only under the aforesaid Rules of 1961.

The said judgment in the case of Bhagwati Prasad Verma (supra) was considered in the subsequent Division Bench's Judgment in the case of Sri Pal Vaish (supra) wherein it was held that gratuity could be withheld on account of pendency of criminal proceedings in a Court in view of the provisions contained in Article 919-A(3) and it has also held that Bhagwati Prasad Verma's case dealt with a different issue and was not applicable with regard to the field in which Article 919-A(3) operates. It also held that the word 'pension' used in Article 351 includes gratuity.

Paragraph 15 of the said judgment is being quoted hereunder:-

"15. The provisions of the aforesaid rule 10(1) of the U.P. Liberalised Pension Rules and 9(1) of the Retirement Benefit Rules, 1961 apply to a case of recovery where gratuity or family pension has already been sanctioned. Clause 3 of Regulation 919-A specifically provides that no death-cum-retirement gratuity shall be paid to the government servant until the conclusion of the departmental or judicial proceedings. The effect of class 3 of Regulation 919 A is that the question of sanction of gratuity to a person against whom on the date of his retirement a criminal case or disciplinary proceedings were pending, would not arise. The Apex Court in State of U.P. & Others Vs. Harihar Bhole Nath JT 2006(9) 567 has observed in para 16 that pension cannot be sanctioned as a matter of course in view of Regulation 470 of the Civil Service Regulations and can be withheld if the services of the employee are not satisfactory. We are in respectful agreement with the view of the Division Bench in Bhagwati Prasad Verma (supra) case that the provisions of the U.P. Liberalized Pension Rules and Retirement Benefit Rules are special provisions. They were also enacted later and would therefore prevail over the Civil Service Regulations. However, it is clear from the provisions of Rule 9 of the U.P. Retirement Benefit Rules 1961 and Rule 10 of U.P. Liberalized Pension Rules 1961 that these provisions for recovery would be applicable only where gratuity has been sanctioned. These Rules 9 and 10 of the aforesaid Rules do not cover the subject of payment of gratuity during the pendency of the departmental or judicial proceedings. Clause (3) of Regulation 919-A is a provision which specifically deals with this subject and in view of this provision, payment of death-cum-retirement gratuity has to be deferred until the conclusion of the departmental or judicial proceedings. The Division Bench in Bhagwati Prasad Verma's case (supra) was not dealing with the cases where departmental or judicial proceedings may have been pending. That was a case where the departmental proceedings had been concluded. The decision in Bhagwati Prasad Verma case (supra) therefore is distinguishable. No doubt the provisions of Rule 9 (1) of U.P. Retirement Benefit Rules 1961 and Rule 10 of U.P. Liberalized Pension Rules 1961 would prevail in the matter of recovery from pension sanctioned but in respect of other matters including stoppage of pension and gratuity during pendency of departmental or judicial proceedings the Civil Service Regulation would continue to apply. There however appears to be nothing in Rule 10 (1) of the Liberalised Pension Rules 1961 or in Rule 9 (1) of the U.P. Retirement Benefits Rules, 1961 which may militate against interpreting the word ' pension' in Regulation 351A to include gratuity. These 1961 rules rather provide that the Governor has a right to make recovery from gratuity or family pension in similar circumstances as recoveries can be effected from ordinary pension under Article 351A of the Civil Service Regulations. The words "gratuity" and "pension" in rule 10 (1) and Rule 9 (1) have no doubt been used in contradistinction to each other but that contradistinction is not to be found in Regulation 351A. It appears that the provisions of clause 3 of Regulation 919-A supplement Regulation 351-A. Regulation 919-A operates during the period of pendency of departmental or judicial proceedings whereas Regulation 351-A is of wider scope and covers also final orders of recovery forfeiture or withholding of pension and gratuity. This conclusion that the word pension in Regulation 351-A includes gratuity in our opinion flows out of a reading of Regulation 351-A together with the definition of pension in Regulation 41, the provision of gratuity in regulation 474 which deals with amount of pension and the inclusion of regulation 474 in Part III which bears the heading 'Ordinary Pension' as also from the scheme of Regulation 919-A and the decisions of the Apex Court in Jarnail Singh's case where a similar definition of pension in the Central Civil Service Pension Rules was involved and from the observations of the apex court in paragraph 11 of the reports in State of U.P. And others Vs. Harihar Bhole Nath [JT 2006 (9) SC 567] that Regulation 351-A takes care of recovery of pecuniary loss from pension and gratuity. We are bound by the decisions of the Apex in Harihar Bhole Nath and Jarnail Singh and would therefore follow these decisions. It appears that the provisions of the Regulation 474 of the Civil Service Regulations and those of Regulation 919-A were not brought to the notice of the Division Bench in Bhagwati Prasad Verma (Supra) case. We are however in agreement with the view taken therein that in matters of recovery of gratuity and family pension Rules 10 and 9 respectively of the Liberalized Pension Rules, 1961 and Retirement Benefit Rules 1961 which are special provisions and were enacted after Regulation 351-A would prevail. This interpretation however does not affect the view we have taken that the word 'pension' in Regulation 351-A includes gratuity. Moreover there appears to be no inconsistency between the provisions for recovery under the 1961 Rules and Regulation 351-A. The 1961 Rules rather provide that recovery thereunder would be permissible in the same circumstances as provided under Regulation 351-A. So far as the present case is concerned it is clear that under the provisions of Regulation 919-A the petitioner is not entitled to payment of gratuity during the pendency of the criminal case. The provisions/Regulation 919-A have been enacted after the 1961 Rules. In view of the undisputed position that the criminal case is pending against the petitioner no case for interference under Article 226 has been made out."

The said judgment in Shri Pal Vaish's case was considered by the Division Bench of this Court in Jai Prakash's case (supra) which has already been referred herein above.

In view of the above, it is evident that the provisions of the Rule 9 of the U.P. Retirement Benefit Rules, 1961 containing the provisions for recovery would be applicable where gratuity has been sanctioned. These Rules do not cover the subject of payment of gratuity during the pendency of departmental or judicial proceedings. Clause (3) of Regulation 919-A specifically deals with this subject and in view of this provision, payment of death-cum-retirement gratuity has to be deffered until the conclusion of the departmental or judicial proceedings. The provisions contained in Rule 9 of U.P. Retirement Benefit Rules, 1961 and Rule 10 of U.P. Liberalization Pension Rules, 1961 as also Regulation 351-A are applicable only on the conclusion of departmental or judicial proceedings and not during their pendency. It is the provision contained in Regulation 351-AA and 919-A which is applicable during pendency of such proceedings as has also been held by this Court vide judgment dated 10.12.2014 passed in Writ-A No. 61683 of 2014 following judgment of the Division Bench in Sri Pal Vaish's case (supra).

In view of the above discussion, the legal position which emerges is that there is a specific provision contained in Regulation 919-A (3) under which payment of gratuity is inadmissible until the conclusion of a departmental or judicial proceeding or as the case may be, an inquiry by the Administrative Tribunal. This is a temporary non payment of gratuity which can not be termed as a final withholding or withdrawing the gratuity as is permissible under Regulation 351-A. Thus, the provisions of Regulation 351-A apply where such proceedings have been concluded and a determination has been made therein, whereas, the Regulation 351-AA and Regulation 919-A apply where such proceedings are pending. While under the former provision there is a final withholding or withdrawing of pension or gratuity, there is only a temporary non payment of the said amounts under the latter provisions. However, the fact that there is a provision as aforesaid contained in Regulation 315-A and 919-A does not mean that in every case the authority competent has to necessarily refuse payment of gratuity till the conclusion of such proceedings blindly i.e. without applying his mind to the facts of the case and seriousness of the offence and role of the employee therein, as, has been held in Faini Singh's case (supra). In a given case a minor offence may not form a valid ground for non payment of regular pension or gratuity under the said provisions.

The aforesaid judgment of the Division Bench in Jai Prakash and Faini Singh's case (supra) has been followed by this Court in Writ-A No. 61683 of 2014 above mentioned.

In view of above, the first contention of the counsel for the petitioner that there is no provision of law under which gratuity could be withheld during pendency of criminal trial is rejected.

As far as reliance placed by him upon the provisions of the payment of Gratuity Act and the decision rendered in Mahesh Bal Bhardwaj's case (supra) based thereon, is concerned, gratuity is not payable to the petitioner under the said Act but under the provisions referred herein above, therefore, the contention based on the said decision and the Act, 1972 is misconceived. It is also rejected.

As far as reliance placed upon the decision of the Division Bench in Bengali Babu Misra's case (supra) is concerned, with respect to the said Division Bench, it had not noted the provisions contained in Regulation 351-AA and Regulation 919-A nor other provisions which have been taken note by the subsequent Division Benches in Sri Pal Vaish, Jai Prakash and Faini Singh's case (supra), therefore, the decision in Bengali Babu Misra (supara) does not help the cause of the petitioner.

As far as the reliance placed upon the Single Judge's decision in the case of Shyam Narayan Dubey (supra), is concerned, the said judgment was rendered prior to the Division Bench judgments rendered in the case of Jai Prakash and Faini Singh (supra), however, judgment of the Division Bench in Sri Pal Vaish was rendered prior to it but was not taken note of. Moreover, this Court in Shyam Narayan Dubey's case (supra) did not advert to the provisions contained in Regulation 351-A and 919-A of the Civil Service Regulations which have been considered by the aforesaid Division Benches. As far as the decision in the case of State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and another is concerned, which has been considered in Shyam Narayan Dubey's case (supra) it has also been considered in Jai Prakash's case (supra) and after considering it, the law has been clarified that in the State of U.P. there is a provision for non payment of gratuity during pendency of a criminal case. In the application of Regulation 351-A read with 919-A the question of financial loss is immaterial, it is not relevant. The said factor may be relevant to the application of 351-A but not to the other provisions referred herein above as held by the Division Bench in Jai Prakash's case (supra). In view of the above, the decision in Shyam Narayan Dubey's case (supra) also does not help the petitioner's cause.

As far as Government Order Dated 28.10.1980 is concerned though the impugned order is based on the said Government Order but on a perusal thereof, this Court finds that it only reiterates the legal provision as contained in Regulation 919-A, though, without referring to the same, therefore, its mere reference in the impugned order does not make any difference, as, reference to a wrong provision by itself can not be a ground for quashing the order, if, the same is referable to another existing provision such, as, 919-A (3) of the Civil Service Regulations.

As there is a provision for non payment of gratuity during pendency of a criminal case, it can not be said that the impugned action has been taken without due process of law nor any violation for Article 300-A of the Constitution of India can be said to have occurred.

As far as the contention of the petitioner that the Superintendent of Police has passed the order mechanically without considering the facts of the case, is concerned, the seriousness of an offence under Section 7/13 of the Prevention of Corruption, Act with which he has been charged, is self evident. The petitioner who is a government servant is alleged to have demanded/accepted illegal gratification, therefore, even if the impugned order does not contain detailed reasons, the offence being a grave one, the impugned order can not be set-aside on this ground considering the facts of the present case.

For the reasons aforesaid, the writ petition lacks merit and is accordingly dismissed.

 
Order Date :-17.12.2015		         
 
R.K.P.						   (Rajan Roy)