Allahabad High Court
Karan Singh vs State Of U.P. And 2 Others on 30 October, 2015
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 1
Case :- WRIT - A No. - 36126 of 2014
Petitioner :- Karan Singh
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- B.D. Nishad
Counsel for Respondent :- C.S.C.
Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Ravindra Sharma, learned counsel for the petitioner and Sri Shamshuddin Ahmad, learned standing counsel for the respondents.
The only relief pressed in this writ petition is that the final pension is not being paid to the petitioner who retired on 03.12.2011. Learned standing counsel submits that one Case Crime No.169 of 1985 under Sections 210/218/243/295 I.P.C. was registered against the petitioner in P.S. Talkatora, District Lucknow in which trial is pending and for that reason, merely a provisional pension was sanctioned to the petitioner for a period of six months w.e.f. 01.01.2012 in view of Regulation 351-AA of the Civil Services Regulations.
I have carefully considered the submissions of the learned counsel for the parties.
It has been held in catena of decisions of this court that the pension cannot be withheld merely on the ground of pendency of a criminal case unless the charges are very grave in nature. In Special Appeal Defective No.416 of 2014, State of U.P. and three others Vs. Faini Singh, decided on 25th April, 2014, a Division Bench of this Court held in para-21 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. "
Similar view was taken by another Division Bench in the case of Narendra Kumar Singh Vs. Stae of U.P. and others, 2013 (9) ADJ 1999 (DB), in which the Court held as under:
"9. 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....."
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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 discussion, the writ petition is disposed of with the following directions:
(i) Petitioner may submit a fresh detailed representation for redressal of his grievance of non-payment of pension, before the competent authority, within a period of four weeks from today.
(ii) The competent authority shall decide the representation in accordance with law, as expeditiously as possible preferably within a period of eight weeks thereafter in the light of the law laid down in the judgments afore-noted and shall communicate the decision in writing to the petitioner.
(iii) While deciding the representation, the authority concerned shall afford opportunity of hearing to the petitioner.
Order Date :- 30.10.2015
NLY
