Keshav Prasad vs State Of U.P. & Others
2017 Latest Caselaw 3232 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 37
 
Case :- WRIT - A No. - 15090 of 2010
 
Petitioner :- Keshav Prasad
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Anil Tiwari,Chandra Vijay Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard learned counsel for the petitioner and the learned Standing Counsel for the respondents.

This writ petition questions the punishment imposed on the petitioner vide order dated 30th November, 2009 whereby after having found the petitioner to be guilty of the charges framed against him, a direction has been issued for forfeiting the entire amount of gratuity payable to the petitioner. It is to be noted that this punishment order came to be passed after the respondents had decided to proceed with the disciplinary proceeding against the petitioner upon his retirement under Civil Services Regulations 351-A.

The charge of misconduct against the petitioner was that he had allegedly facilitated over-payments to the tune of Rs. 1,19,758.00/- by carrying out excess measurement in respect of 'boulder pitching' work executed by a contractor for the irrigation department that was thwarted by a timely intervention of the superior authorities.

The respondents issued a charge-sheet and initiated disciplinary proceedings in respect of the work that was done in the year 2000. The petitioner submitted his reply to the charge-sheet and also gave his oral statement before the Enquiry Officer. The defence taken by the petitioner was that the payments that were recommended were running payments against a measurement about which the alleged excess measurement was verified and reported by the Executive Engineer, but while finally disbursing the payments to the contractor and making payments under the final bill, the alleged amount of excess payment against excess measurement was adjusted and no financial loss was caused to the Government.

The petitioner retired on 31st May, 2007 whereafter he was issued a show cause notice and the State Government also passed an order for continuance of the disciplinary proceedings under Section 351-A of the regulations. The petitioner on the show cause notice again submitted a reply whereafter upon going through the Enquiry Report, the impugned order of punishment has been passed by the State Government.

The Enquiry Officer's Report is annexed as Annexure No. 6 to the writ petition. The Enquiry Report categorically records the defence taken by the petitioner where the petitioner has alleged that the Executive Engineer who carried out the verification measurement was done without giving any notice to the petitioner as he had already been transferred, and secondly whatever bills were finally prepared, the same categorically adjusted the amount of any excess payment as alleged. Ultimately, no excess payments were made and no loss to the exchequer was caused. However, this defence of the petitioner was partly accepted to the extent that no final payments in excess were made but the fact that the petitioner had facilitated the excess measurements and had recommended excess payment stood proved.

The Enquiry Officer's Report has been discussed in the impugned order and we have also perused the defence that has been set up by the petitioner. On a perusal thereof, we do not find any material to the contrary set up in defence so as to dislodge the finding of the Enquiry Officer as accepted by the disciplinary authority on the issue of excess measurement.

The counter affidavit filed on behalf of the state in paragraph no. 6 states that the petitioner was granted promotion even though his disciplinary proceedings were still pending and according to the respondents by giving incorrect information, the petitioner received his post retiral benefits and also payment of gratuity.

Having gone through the contents of the counter affidavit, we are unable to find any justification for the respondents to have released the amount of gratuity if they intended to withhold the same on account of such disciplinary proceedings on the strength of the Government Orders dated 28th October, 1980 read with the Government Order dated 28th July, 1989. The counter affidavit does not afford any explanation as to why the amount of gratuity and post retiral benefits were released inspite of the fact that the disciplinary proceedings were continuing against the petitioner. The respondents therefore, did not withhold the post retiral benefits and gratuity payable to the petitioner when the disciplinary proceedings were pending or even before passing of the impugned order. The impugned order proceeds to issue a direction to forfeit gratuity which had already been paid.

At this stage, it is relevant to discuss the impact of the Government Order dated 28th October, 1980 read with the Government Order dated 28th July, 1989 that authorizes the Government to withhold payment of gratuity pending disciplinary proceedings. Relevant extracts of the two Government Order's are reproduced hereinunder:-

Date:-28.10.1980

"2& bl iz'u ij xaHkhjrk iwoZd fopkj djus ds mijkar rFkk bl ckr dks ns[krs gq, fd jkT; esa iz;qDr fu;eksa vkSj vkns'kksa ds vUrxZr lkekU;r% lsok fuo`Rr deZpkjh dks isa'ku rFkk xzsP;qVh ds vfUre :i ls fu/kkZfjr u gks ldus ij vfUre isa'[email protected];qVh Lohdkj fd;s tkus dh O;oLFkk gS] Jh jkT;iky egksn; us lg"kZ ;g vkns'k iznku fd;s gSa fd lsokfuo`Rr gksus okys ,sls jkT; deZpkfj;ksa dks] ftuds fo:) lsok fuo`fRr ds le; foHkkxh;] U;kf;d dk;Zokgh vFkok iz'kklukf/[email protected] tkap py jgh gks vFkok fd;k tkuk visf{kr gks] vufUre isa'ku dk Hkqxrku vf/kd`r dj fn;k tk;] fdUrq xzsP;qVh dk Hkqxrku fdlh Hkh n'kk esa mDr dk;Zokgh ;k tkap iwjh gksus vkSj vfUre fu.kZ; gksus ds iwoZ u fd;k tk;A xzsP;qVh dh /kujkf'k ls og dVkSfr;ka dh tk;sxh ftudk mYys[k foHkkxh; iz'[email protected];Zokgh bR;kfn ds QyLo:i ikfjr vkns'k esa fd;k x;k gksA ,sls ekeyksa esa vufUre isa'ku dh Lohd`fr fuEu O;oLFkk ds v/khu ns; gksxh %

Dated:-28.07.1989

2& flfoy lfoZl jsxqys'kUl ds vuqPNsn 351&, esa ;g izkfo/kku gS fd ;fn dksbZ ljdkjh lsod fdlh foHkkxh; dk;Zokgh ds QyLo:i tkus vutkus jkT; ljdkj dks foRrh; gkfu igqWpkus dk vFkok fdlh vU; xEHkhj nqjkpj.k dk nks"kh ik;k x;k gks vFkok fdlh U;kf;d dk;Zokgh ds ifj.kkeLo:i nf.Mr fd;k x;k gks rks jkT;iky dks vf/kdkj gS fd og mldh iwjh vFkok vkaf'kd isU'ku jksd ldrs gSA ,slh foHkkxh; vFkok U;kf;d dk;Zokgh rc rd izkjEHk gqbZ ugh ekuh tkrh gS tc rd ljdkjh lsod dks vkjksii= u ns fn;k x;k gksA vr% ;fn mijksDrkuqlkj dksbZ dk;Zokgh lEiUu ugh dh x;h gS rks bl fu;e ds vUrxZr fdlh Hkh ljdkjh lsod dh isU'ku u rks jksdh tk ldrh gS vkSj u gh de dh tk ldrh gSA ,slh n'kk esa ;g Li"V fd;k tkrk gS fd ;fn fdlh ljdkjh lsod ds fo:) ,slh dk;Zokgh izkjEHk ugh dh x;h gS vFkok iw.kZ ugha dh x;h gS rks mldh isU'ku jksdus dk dksbZ vkSfpR; ugha gS vkSj mlds isU'ku izi= LohdrkZ vf/kdkjh dks Hkstdj mls iw.kZ isU'u LohdrkZ djok nh tk;sxhA dsoy lsokfuo`fRr xzsP;qVh ls ,sls ns;ksa dh olwyh dh tk;sxh ftudh fLFkfr lsokfuo`fRr ds fnukad rd Li"V gks pqdh gksA

3& ,sls ljdkjh lsodksa dks ftuds fo:) lsokfuo`fRr ds fnukad dks foHkkxh;@U;kf;d vFkok iz'kklukf/kdj.k dh tkap py jgh gks vFkok iz'kklukf/kdj.k dh tkap fd;k tkuk visf{kr gks 'kklukns'k la[;k lk&3&[email protected]&80&909&79] fnukad 28&10&1980 ds vuqlkj vufUre isU'ku dk Hkqxrku dj fn;k tk;sxk fdUrq xzsP;qVh dh iw.kZ /kujkf'k rc rd jksdh tk;sxh rc rd ,slh tkap dk ifj.kke izkIr u gks tk;A xzsP;qVh dh /kujkf'k ls og dVkSfr;ka dh tk;saxh ftudk mYys[k foHkkxh;@iz'kklfud dk;Zokgh ds QyLo:i ikfjr vkns'k es fd;k x;k gksA bl izkfo/kku ds vUrxZr Lohd`r vufUre isU'ku dks vfUre :i ls Lohd`r gksus okyh isU'ku ls lek;ksftr dj fy;k tk;sxk fdUrq ;fn vfUre :i ls Lohd`r gksus okyh isU'ku dh jkf'k vufUre isU'ku ls de gks vFkok isU'ku LFkk;h :i ls vFkok fdlh fuf'pr vof/k ds fy;s de dj nh tk; ;k vkLFkfxr dh tk; rks ljdkjh lsod ls dksbZ olwyh ugha dh tk;sxhA ;g izkfo/kku vU; lkekU; ekeyksa esa tgka vufUre isU'ku dh /kujkf'k vfUre isU'ku dh /kujkf'k ls vkx.ku dh =qfV vFkok vU;Fkk fdlh vU; dkj.k ls vf/kd ik;h tk;] ykxw ugha gksxkA bl izdkj ds ekeyksa esa vf/kd Hkqxrku dh x;h /kujkf'k vfUre isU'ku dh /kujkf'k ls lek;ksftr dj yh tk;sxhA bl gsrq ;fn isU'kuj viuh isU'ku ls ,d eq'r vFkok ekfld dVkSrh djokus ij vkifRr djs rks okafNr fjdojh jkgr dh /kujkf'k ls dksbZ fof/kd vM+pu ugha gSA"

A perusal thereof leaves no room of doubt that the State Government retains the power to withhold gratuity in order to deduct any amount of financial loss having been caused to the State Government on conclusion of disciplinary proceedings against a government servant. The purpose of these Government orders is that if the Government servant is facing any disciplinary proceeding or is pending against him, then in the event of any final order of punishment that may be passed involving financial loss, the amount so assessed may be recoverable from the delinquent employee.

There is no provision in both the Government Orders that in the event the payment of gratuity has been released, the same can still be recovered thereafter.

In the instant case, the gratuity had already been paid to the petitioner as admitted in paragraph 6 of the counter affidavit without withholding the same. The respondent employer, had voluntarily proceeded to release the gratuity in favour of the petitioner even though the counter affidavit states that the petitioner had obtained the payments by giving incorrect information. There is no material in the counter affidavit or any evidence that may demonstrate that the petitioner had given any incorrect information about the pendency of disciplinary proceedings. It was the duty of the respondents themselves to have verified these facts who proceeded to release the payments, inspite of the fact that admittedly no clearance certificate about disciplinary proceedings had been issued in favour of the petitioner. Thus, the receipt of gratuity by the petitioner cannot be a ground of default on the part of the petitioner to attribute any motive to him without any evidence that he obtained the payment by giving incorrect information. The same does not appear to be substantiated. In such circumstances the payments appeared to have been released by the respondents themselves and consequently keeping in view the terms and conditions of the Government Orders referred to hereinabove, we do not find any such provision under which the Government order authorizes the recovery from the gratuity amount already paid to the petitioner.

Having found this the order imposing the punishment of depriving the petitioner of his gratuity does not appear to be in conformity with the said Government Orders. The final forfeiture could have been made had the amount been withheld but not otherwise.

We may however advert to the provisions of UP Civil Service Regulations that came up for interpretation on the issue of withholding of gratuity where a delinquent employee is facing disciplinary proceedings, both, before retirement and even thereafter. The issue as to whether gratuity can be withheld is no longer res-integra with a special reference to Regulation 351-A of the Regulations read with Regulation 919-A thereof. The same came to be considered and resolved by a Division Bench in the case of State of U.P. & Others Vs Jai Prakash 2014 (1) ADJ 207(DB) in Special Appeal Defective No. 1278 of 2013 decided on 17.12.2013. This is followed by another Division Bench Judgment in the case of State of U.P. & Others Vs. Faini Singh in Special Appeal Defective No. 416 of 2014 decided on 25th April, 2014. The said decisions hold that gratuity can be withheld, but the case of Faini Singh (supra) further explains that it can be done after due application of mind and not mechanically looking to the facts of the case and the alleged conduct of the employee. It may be noticed that most of these cases were decided in relation to criminal judicial proceedings that were pending or decided where the delinquent employee was facing criminal charges. However, the fact remains that even in matters of disciplinary proceedings gratuity can be withheld and therefore the Government Order dated 28.10.1980 relied upon by the respondents is clearly relatable to the statutory provision of Regulation 919-A. The said decisions also refer to the provisions of Regulation 351-AA where the regulations cover such cases where the Government servant has retired. The said provisions make room for disbursement of provisional pension to be adjusted against final retirement benefits upon conclusion of proceedings or enquiry.

Regulation 351-A authorizes recovery from pension of the whole or part of any pecuniary loss caused to the Government. The aforesaid position of law has been discussed in detail referring to the aforesaid two Division Bench judgments by a learned Single Judge in the case of Surendra Pal Vs. State of U.P. And Others 2016 (1) ADJ 370 (LB). The said case also arose out of the pendency of a criminal case against the delinquent employee involved therein. A review application before the learned Single Judge was filed alleging that the word judicial proceedings did not figure in Regulation 919-A which was repelled and the review application was rejected on 4th July, 2017.

Thus the position of law in view of the judgment in the case of Surendra Pal (supra) is clear and we approve of the said judgment and the reasonings giving therein to conclude that the power to withhold gratuity and forfeit the same is available under the regulations which is also applicable on the facts of the present case.

It should not be lost sight of that Regulation 41 of the Civil Services Regulation provides that except when the term pension is used in contradistinction to gratuity, pension would include gratuity. Thus recovery from pension and gratuity both are permissible under the regulations.

The question here is that the gratuity payable to the petitioner had already been released and had not been withheld, and in such circumstances, whether the forfeiture could be ordered so as to authorize recovery. The petitioner had retired admittedly in 2007 and the impugned order of forfeiture has been passed in 2009. As already deliberated upon hereinabove we have found no justification or explanation on behalf of the respondents as to why they did not chose to withhold the gratuity if they were contemplating recovery there-from. Thus, on the facts of the present case we find that the recovery which is authorized under Regulations referred to hereinabove from the pensionary benefits of the petitioner can be recovered from the pension payable to the petitioner. The amount of gratuity which has been released without any demur by the respondents themselves could not have been made a subject matter of forfeiture or consequential recovery. Had the gratuity been withheld, it's forfeiture could have been ordered.

A reference may be made to the Civil Services Regulations 351-A read with 470-B thereof. According to the said Regulations, punishment can be imposed and the disciplinary enquiry proceedings can be continued against a delinquent employee even after his retirement, if the same had been initiated prior to his retirement in terms of the said Regulation. Regulation 470-B authorizes the employer to make deductions from the pensionary benefits of a delinquent employee in the event his services having not been satisfactorily rendered. Regulation 351 authorizes action in future as pension is dependant on future good conduct as well.

In the instant case the findings which have been recorded are that the petitioner made excess measurements that resulted in preparation of bills for excess payment. This charge has been found to be proved. As noticed above, the petitioner has been unable to dislodge the said findings on the basis of any material on record. In such circumstances, the petitioner had been found by the Enquiry Officer, as approved by the disciplinary authority to have not rendered satisfactory service amounting to misconduct. In such circumstances the ingredients of the U.P. Civil Services Regulations are clearly attracted. The punishment order therefore ought to have proceeded by taking notice of the entire regulations and forfeiture of gratuity after having been paid to the petitioner in the circumstances of the present case could not be made.

The fact remains that the Enquiry Officer and the disciplinary authority have not recorded any findings of any actual financial loss having been incurred by the state exchequer. The attempt on the part of the petitioner to cause loss has however been found to be proved.

In such circumstances it was open for the State to impose any punishment of deduction from pension on the charges having been found to be proved against the petitioner in relation to his unsatisfactory services or dereliction of duty as per the Regulations and the decisions referred to hereinabove. Consequently, the direction in the impugned order for forfeiting gratuity was an infructuous excercise as the payment had already been released without withholding the same by the respondents themselves. The recovery was also restrained under an interim order dated 23.03.2010 in the present petition. Consequently, no recovery can be made by the respondents from the gratuity which had already been paid on the facts of the present case.

We therefore, partly allow the writ petition and set aside the direction of forfeiting the petitioner's gratuity which admittedly had been paid by the respondents as indicated in paragraph 6 of the counter affidavit. It shall however be open to the respondent-State Government to pass any suitable proportionate order imposing liability to be discharged by the petitioner as may be desirable on the facts of the present case keeping in view the charges against the petitioner in accordance with law and the regulations and decisions referred to hereinabove after giving an opportunity to the petitioner.

The writ petition is partly allowed with the above observations.

Order Date :- 16.8.2017

S.Chaurasia