Vijai Narain Bajpai ... vs State Of U.P.Through Secy. Home ...
2017 Latest Caselaw 3568 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 
AFR
 

 

 

 
 Special Appeal No. 496 (SB) of 2012
 

 
Vijai Narain Bajpai					...Appellant
 

 

 
						Versus
 
The State of U.P. and others			...Respondents
 

 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble R.N.Mishra,II,J.

Heard Mr Amit Bose, learned Counsel for the appellant and Mr Badrul Hasan, learned Additional Chief Standing Counsel for the State.

Vijay Narain Bajpai-appellant is before this Court assailing the validity of the judgment and order dated 28.5.2012 passed by the learned Single Judge in Writ Petition No. 5763 (SS) of 2000 whereby the learned Single Judge while observing that final pension of the appellant cannot be determined as a criminal case is pending against him and he is already getting the provisional pension, disposed of the writ petition with liberty to the appellant to file fresh petition after having the final judgment in the criminal case.

According to the learned Counsel for the appellant, the appellant while working on the post of Sub Inspector, Civil Police attained the age of superannuation in the afternoon of 31.10.2004. However, on account of pendency of criminal case under Section 342/218/220 IPC read with 120-B IPC in the Court, the appellant is being denied final pension causing serious prejudice to him. It has further been submitted that the trial in connection with the aforesaid case has not yet commenced and no proceedings have taken place beyond the submission of the charge-sheet before the competent court of law.

It has been contended by the learned Counsel for the appellant that denial of termination benefits is wholly unjust and arbitrary as the respondents have not considered the facts, nature and circumstances of the criminal case against the appellant especially the fact that the incident leading to the criminal case concerned took place in the year 1990, the charge-sheet against the appellant was filed in the year 1999 and the trial against the appellant has not even commenced till date meaning thereby that more than 27 years having been passed since the incident concerned and more than 16 years having passed since the submission of the charge-sheet against the appellant. Therefore, there is no basis or ground on which the post-retirement benefits of the appellant can be withheld. The appellant is already aged more than 72 years of age and more than 12 years have already elapsed since the date of retirement.

Lastly, it has been argued that from the allegations made in the FIR, no overt or covert act has been attributed to the appellant and even assuming for arguments sake, that the appellant had arrested the accused persons, the same cannot be said to be an act of gross misconduct or causing any pecuniary loss to the State Government, which can be recovered from the post-retirement benefits payable to the appellant. In these circumstances, with-holding of the post-retirement benefits of the appellant is without any basis and beyond the scope of the provisions of Articles 351-A and 351-AA of the Civil Service Regulations.

Refuting the allegations of the appellant, it has been argued by the State Counsel that the appellant was given the charge of the post of officiating Sub-Inspector only after the approval under Para 191 of the Police Officer Manual. Later on, the appellant was reverted to the post of Head Constable and after the said reversion, the appellant continuously performed his duties on the post of Head Constable till attaining the age of superannuation.

It has further been argued by the State Counsel that there is no illegality in the impugned judgment as due to pendency of the criminal case against the appellant, the final fixation of the pension of the appellant cannot be done till final out come of the said criminal proceedings in view of the specific provisions in the Regulation. It has also been submitted that in accordance with the relevant rules and provisions of Government Order No. Sa-3-1679/Das-80-907-79 dated 28.10.1980, the final fixation of the petitioner has not been done but the provisional pension to the appellant is regularly being paid. Moreover, the amount of the GPF and Group Insurance has already been paid to him.

Regulation 351-AA of the Civil Servant Regulation [ in short referred to as the ''Regulation'] provides that where a departmental or judicial proceeding or any inquiry before the Administrative Tribunal is pending on the date of retirement, a provisional pension under Regulation 919-A may be sanctioned. Regulation 919-A(3) contains a specific prohibition on the payment of death-cum-retirement gratuity to a government servant until the conclusion of departmental or judicial proceedings and the issue of final orders thereon. Regulation 919-A (1) makes a reference to the situation which is referred in Regulation 351-AA and authorizes the payment of a provisional

pension by the Head of Department. Regulation 919-A(3) contains a prohibition on the payment of death-cum-retirement gratuity to a government servant until the conclusion of the departmental or judicial proceeding. The expression ''judicial proceeding' would necessarily include the pendency of a criminal case. Thus, 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 the departmental or judicial proceeding.

In Special Appeal (D) No.1278 of 2013; State of U.P. and others versus Jai Prakash, which has been relied upon by the Appellant, the learned Single set-aside the order dated 22nd July, 2010 passed by the Superintendent of Police, Etah withholding the payment of gratuity to the respondent and directed for release of the same with statutory interest. The said judgment of the learned Single Judge was assailed in the aforesaid Special Appeal by the State Government. A Division Bench of this Court headed by the then Chief Justice, namely, Dr D.Y.Chandrachud (now Judge of the Supreme Court) after considering the provisions of Regulation 351, 351-A, 351-AA and 919-A including the decision rendered by this Court in the case of Shri Pal Vaish Vs. U.P.Power Corporation Limited and another; 2009(9) ADJ 45 and the view expressed by the Apex Court in the case of State of Jharkhand and others vs. Jitendra Kumar Srivastava and another; JT 2013 (11) SC 351 held as under:-

"In the circumstances, we are of the view that the order passed by the Superintendent of Police, Etah withholding the payment of gratuity until the conclusion of the criminal trial was correct and proper and was in accordance with the provisions of regulation 351-AA read with regulation 919-A (3). The respondent would however be entitled to the payment of provisional pension as contemplated in law.

12. In view of the above, we allow the appeal and set aside the impugned order of the learned Single Judge dated 10 May 2013. In consequence, the petition which has been filed under Article 226 of the Constitution shall stand dismissed."

Again a similar controversy came up for consideration before a Division Bench of this Court in Special Appeal (D) 45 of 2016; Mohan Ram Versus State of U.P. and others wherein the appellant Mohan Ram preferred a writ petition claiming the release of full pension. The said writ petition was dismissed by a learned Single Judge vide judgment and order dated 13.5.2014. Aggrieved by the said judgment, the appellant-Mohan Ram preferred the aforesaid Special Appeal (D) No.45 of 2016 assailing the validity of the judgment dated 13.5.2014. The Division Bench after considering the Government Orders dated 28.10.1980, 28.07.1989, the judgment rendered in Jai Prakash's case [supra] and Special Appeal (D) No.416 of 2014; State of U.P. and others Versus Faini Singh while observing that on the parameter of two Division Bench judgments of this Court, the authority is vested under Article 351-A read with Regulation 919(1) Civil Service Regulation for withholding pension/gratuity, where departmental judicial proceeding is pending on the date of retirement, held as under:

"Consequently, in the fact of the case, once appellant has been charge sheeted, criminal trial is on and charges in questin are certainly in reference of discharge of official duty, then there is no infirmity in the judgment of the learned Single Judge."

Thus, it is clear that where a departmental or judicial proceeding is pending on the date of retirement, provisional pension under Regulation 919-A may be sanctioned. Provisional pension is to be paid from the date of retirement upto the date of conclusion of departmental/judicial proceeding or as the case may.

In view of the aforesaid legal proposition enunciated by the two Division Benches of this Court, referred to above, there is no occasion for us to take a different view than expressed in the aforesaid judgments. Therefore, the Special Appeal lacks merit and is hereby dismissed.

Date: 24.8.2017

Ajit/MH