Om Prakash Solanki vs State Of U.P. And 4 Others
2017 Latest Caselaw 7693 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 26
 

 
Case :- WRIT - A No. - 25953 of 2014
 

 
Petitioner :- Om Prakash Solanki
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Pradeep Verma, K.D. Tiwari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This writ petition has been filed by the petitioner praying for quashing of the orders dated 11.04.2014 and 22.04.2014 passed by the Senior Superintendent of Police, Ghaziabad; with a further prayer for issuance of mandamus restraining the respondents from deducting Rs. 2,63,026/- (Rupees two lac sixty three thousand and twenty six) from the gratuity amount of the petitioner.

2. The case of the petitioner as argued by his counsel Mr Pradeep Verma before this Court is that initially the petitioner had filed Writ Petition No. 67800 of 2013 for payment of withheld gratuity and the same was allowed on 11.12.2013 by this Court with an observation that gratuity of the petitioner could not be withheld during the pendency of the criminal case and retiral benefits of the petitioner had to be released to him forthwith. Since the respondents did not comply with the orders passed by the Court, the petitioner filed Contempt Petition No. 2182 of 2014, in which notices were issued to the respondents, and thereafter, the order passed by this Court was complied with, but at the same time the Authorities got annoyed with the petitioner and as a repremand to him passed the impugned orders dated 11.04.2014 and 22.04.2014 directing for recovery of Rs. 2,63,026/- (Rupees two lac sixty three thousand and twenty six) from his gratuity on the allegation that such amount was paid in excess because the petitioner was given the IIIrd ACP wrongly after completion of 26 years of service.

3. It is the case of the petitioner that the authorities knew very well that Criminal Case No. 20 of 1999, under section 119, 120-B, 196, 217, 218, 285 and 471 IPC was pending against the petitioner and it was not as if the petitioner had suppressed such information from the Authorities for claiming IIIrd ACP. As such, the IIIrd ACP was given to him on 11.11.2011 by taking into account the satisfactory service rendered by him and Grade Pay of Rs. 6600/- that was granted to him could not be reduced arbitrarily and without even issuing a show cause notice to the petitioner.

4. It appears that when the writ petition was filed initially, this Court had granted an interim order staying the recovery proceedings till the next date of listing. Later on, this Court had directed that the petitioner's representation dated 22.04.2014 be considered and decided by the Competent Authority and an affidavit be filed in this regard. In compliance of this Court's interim orders, payment of Rs.2,63,026/- (Rupees two lac sixty three thousand and twenty six) was made in the petitioner's account electronically and Stay Vacation Application was filed along with counter affidavit.

5. Several affidavits were exchanged between the parties, which are on record and it transpires from perusal of such affidavits that the State-respondents have relied upon the Government Order dated 28.10.1980 and 30.06.1993 to say that during the pendency of criminal proceedings only provisional pension could be paid to the petitioner and his gratuity could have been withheld by them. The proceedings in Criminal Case No. 20 of 1999 were ignored at the time of giving of IIIrd ACP and grant of Grade Pay of Rs. 6600/-. When the pendency of criminal case came into light an attempt was made to withhold the excess payment of Rs. 2,63,026/- (Rupees two lac sixty three thousand and twenty six) already made and a direction was issued that rest of the gratuity of Rs. 6,85,625/- (Rupees six lac eighty five thousand six hundred and twenty five) be released to him by the impugned orders.

6. It has been further contended in the personal affidavit filed by the Additional Director General of Police in compliance of this Court's order on 17.11.2015 that the petitioner resorted to concealment and misrepresentation when he filed Writ Petition No. 67800 of 2013. The petitioner did not disclose to the Court that earlier the petitioner had filed Writ Petition No. 60534 of 2013. In the earlier Writ Petition No.60534 of 2013, the petitioner had prayed for quashing of the order dated 03.10.2013 passed by the Senior Superintendent of Police, Ghaziabad withholding promotion order of the petitioner and for a mandamus to be issued to the respondents restraining them from withholding the Gratuity of the petitioner on account of pendency of Criminal Case No. 20 of 1993 as aforesaid, and for a direction to the respondents to pay Gratuity to the petitioner on his retirement on 31.10.2013.

7. This Court was pleased to dismiss the Writ Petition No. 60534 of 2013 on 31.10.2013 with the observations as follows:

"Admittedly, a criminal case is pending against the petitioner. In view of relevant provisions and Government Orders, petitioner has been considered for promotion but his result has been kept in sealed cover, which is liable to be opened after finalization of proceedings. It also appears that criminal proceedings have not been allowed to be completed since petitioner approached this Court in Criminal Misc. Application No.9227 of 2007, wherein proceedings before Trial Court have been stayed and that is how criminal proceedings are still pending. Delay in finalization of criminal proceedings, therefore, cannot be attributed to the State.

Even otherwise, since order dated 3.8.2013, impugned in the writ petition, cannot said to be inconsistent with existing condition of service and provisions relating to sealed cover method, I do not find any reason to interfere with the impugned order.

Dismissed."

8. After dismissal of the first writ petition on 31.10.2013, the petitioner filed a Modification Application No. 333148 of 2013, which was rejected by this Court by its order dated 04.12.2013.

9. It was only thereafter that the petitioner filed Writ Petition No. 67800 of 2013 with the contention that during the pendency of the criminal case, retiral benefits of the petitioner cannot been withheld. The writ petition was allowed on 11.12.2013 and a Contempt Petition was filed thereafter for alleged non-compliance of the order dated 11.12.2013, it was then that the matter of the petitioner was closely examined and it was found that due to pendency of criminal case against the petitioner, sealed cover procedure had to be adopted, but he was wrongly granted IIIrd ACP and his Grade Pay was fixed at Rs. 6600/-. Therefore the Senior Superintendent of Police issued a letter dated 11.04.2014 stating that due to wrong fixation of salary an excess amount of Rs. 2,63, 026/- (rupees two lac sixty three thousand and twenty six) had been paid to the petitioner, which was liable to be recovered by deduction from his Gratuity.

10. It has been averred in the personal affidavit filed by the Additional Director General of Police in compliance of the orders passed by this Court earlier that pension is being paid to the petitioner as well as all his Gratuity amount has also been released.

11. At the time of argument, the learned counsel for the petitioner stated that the Authorities are wrongly relying upon the Government Order dated 30.06.1993, a copy of which has been filed along with writ petition to determine that the petitioner's services were not satisfactory, and therefore, he could not have been given the IIIrd ACP. He has read out the contents of the Government Order dated 30.06.1993 and has submitted that the same applies only in cases where an employee is facing regular disciplinary proceedings or has been given adverse entries etc. in his ACRs and it does not apply to such a situation as that of petitioner where although his service has been found satisfactory and his integrity has been verified each year, but he is facing criminal proceedings.

12. It is the case of the petitioner that on the basis of Government Order dated 30.06.1993 as mentioned in the impugned order dated 11.04.2014, his IIIrd ACP could not have been withheld.

13. I have perused the Government Order dated 30.06.1993 and I find the petitioner's contention to be correct as the said Government Order does not refer to pendency of criminal case at all, but refers to only pendency of disciplinary proceedings or to adverse entries in Annual Confidential Rolls and no further.

14. However, this Court is aware of judgment rendered by a Division Bench of this Court in Writ Petition No. 1577 (SB) of 2013, (State of U.P. vs Brijesh Mani Tripathi and others) wherein consideration of the employees concerned for grant of ACP was deferred by the Government on the ground of pendency of criminal cases against them. The said employees had approached the U.P. Public Service Tribunal and their Claim Petition was allowed on 01.02.2013 and the Tribunal has directed the State Government to grant the benefit of ACP to the petitinoer-respondent ignoring the pendency of the criminal prosecution.

15. The State Government filed the aforesaid Writ Petition No. 1577 (SB) of 2013 (State Of U.P. vs. Brijesh Mani Tripathi & Ors.) and this Court passed the following orders:

"We have heard learned counsel for parties and perused the pleadings of writ petition.

The petitioner-State has challenged the order dated 01.02.2013 passed by State Public Services Tribunal in Claim Petition No.951 of 2011, whereby the Tribunal has directed the State Government to grant ACP benefit to respondents while ignoring the pendency of the criminal prosecution.

Learned counsel for State referred to the Government Order dated 04.05.2010 notifying the terms and conditions for grant of benefit of ACP. Paragraph 1(6) thereof is reproduced as under :-

;fn fdlh deZpkjh ds f[kykQ vuq'kklukRed dk;[email protected] dk;Zokgh izpyu esa gks rks ,0lh0ih0 dh O;oLFkk ds vUrZxr LrjksUu;u ds ykHk dh vuqeU;rk mUgha fu;eksa ls 'kkflr gksxh ftu fu;eksa ds v/khu mi;qZDr ifjfLFkfr;ksa esa lkekU; izksUurh dh O;oLFkk 'kkflr gksrh gSA vr% ,sls ekeys mRrj izns'k ljdkjh lsod vuq'kklu ,oa vihy fu;ekoyh] 1999 ds lqlaxr izko/kkuksa ,oa rr~dez esa tkjh funsZ'kksa ls fofu;fe gksaxsA

Learned counsel also referred to a Government memo dated 28.05.1997 relating to sealed cover procedure in the cases where any departmental proceedings or Court proceedings are pending against the Government employees. The relevant paragraph of the same is also relevant for the purpose because the ACP benefits are extended only to those employees who are eligible to be considered for promotion. The relevant part of the Government memo is reproduced as :-

ik=rk lwph ds izR;sd dkfeZd ds lEcU/k esa p;u lfefr }kjk fopkj fd;k tk;&izksUufr gsrq xfBr p;u lfefr }kjk mu lHkh dkfeZdksa dh izksUufr ds lEcU/k esa fopkj fd;k tk;sxk] tks laxr lsok fu;eksa o ik=rk fo"k;d fu;eksa ds rgr fu;ekuqlkj ik=rk lwph esa vkrs gSA Hkys gh muesa ls fdlh dkfeZd ds fo:) fdlh izdkj dh tkap (izdh.kZ&tkap foHkkxh; izkjfEHkd tkap] lrdZrk tkap] foHkkxh; vkSipkfjd tkap] iz'kklukf/kdj.k dh tkap) ;k vfHk;kstu dh dk;Zokgh fopkjk/khu vFkok yfEcr gks vFkok og fuyfEcr py jgk gks] vkSj p;u lfefr }kjk ,sls leLr yfEcr @fopkjk/khu ekeyksa dks NksM+rs gq, vU; leLr lsokfHkys[kksa ds vk/kkj ij izksUufr gsrq dkfeZd dh mi;qDrrk ij fopkj fd;k tk;sxkA

laLrqfr;ksa dks eqgjcan fyQkQs esa j[ks tkus dh ifjfLFkfr;ka mijksDrkuqlkj fopkj dj p;u lfefr }kjk Li"V laLrqfr dh tk;sxh ijUrq p;u lfefr dh laLrqfr dks fuEufyf[kr ifjfLFkfr;ksa esa (pkgs p;u lfefr }kjk lEcfU/kr dkfeZd dks izksUufr ds fy, laLrqr fd;k x;k gks ;k ugh) vFkkZr~ nksuksa gh n'kkvksa esa dk;Zo`Rr esa vafdr ugha fd;k tk;sxk oju~ ,sls dkfeZd ds lEcU/k esa dk;Zo`Rr eas ek= ;g vafdr djrs gq, fd p;u lfefr dh laLrqfr eqgjcan fyQkQs esa j[kh gS ml dkfeZd ds fo"k; esa p;u lfefr dh laLrqfr ,d vyx 'khV ij vafdr dh tk;sxh] ftls eqgjcUn fyQkQs esa j[kk tk;sxk vkSj fyQkQs ds ऊपर vafdr dj fn;k tk;sxk fd blesa veqd dkfeZd dh izksUufr ds fo"k; esa p;u lfefr dh flQkfj'k j[kh x;h gS %&

d- ;fn dkfeZd fuyfEcr py jgk gS]

[k- ;fn dkfeZd ds fo:) vuq'kklfud dk;Zokgh ;k iz'kklukf/kdj.k dh dk;Zokgh yfEcr gS] ftlds fy, vkjksii= tkjh fd;k tk pqdk gS]

x- ;fn vkijkf/kd vkjksi ds vk/kkj ij dkfeZd ds fo:) vfHk;kstu dh dk;Zokgh yfEcr gS vFkkZr~ U;k;ky; esa vfHk;kstu gsrq vkjksi&i= izLrqr fd;k tk pqdk gSA

Learned counsel, thus, submits that the case of respondents has been deferred on account of pendency of a criminal case wherein the Economic Offence Wing of Police Department has submitted a charge sheet.

On the other hand, learned counsel for respondents contends that respondents' case still deserves to be considered, for, in those matters where charge sheets have been filed, the State Government is under obligation in terms of the aforesaid office memo to adopt sealed cover procedure.

In view of all the aforesaid rival submissions, we are inclined to interfere with the impugned order of Tribunal as it deserves to be set aside. We order accordingly.

However, in terms of the office memo, as noticed hereinabove, vide paragraph 2 (Gaa), we direct that the State Government shall consider the case of respondents for grant of benefit of ACP and shall adopt sealed cover procedure during the pendency of criminal case.

In view of the fact that this writ petition has been filed against the Tribunal's order where the parties have completed pleadings, no further opportunity is required for filing any additional document. Moreover, no other relief can be granted except what has been held hereinabove.

Writ petition is accordingly, disposed of."

16. Since the petitioner had approached this Court praying for grant of promotion earlier and this Court in its earlier judgment and order dated 30.10.2013 as quoted here-in-above, held that the petitioner could not be granted promotion during the pendency of criminal proceedings, and his case should be kept in sealed cover, the same procedure ought to have been adopted by the authorities. Although, the petitioner's case should have been considered for grant of IIIrd ACP the result should have been kept in sealed cover as per the Government Order dated 04.05.2010 as referred to in the judgment and order dated 30.10.2013 passed by the Division Bench in Writ Petition No. 1577 (SB) of 2013, (State Of U.P. vs. Brijesh Mani Tripathi & Ors.).

17. The petitioner was wrongly granted ACP during the pendency of criminal proceedings as per the law settled by this Court and as per relevant Government Orders.

18. However, this Court is also aware of the judgment rendered by Hon'ble Supreme Court in the case of State of Punjab and others vs Rafiq Masih (White Washers) and others, reported in 2014 (8) SCC 883, wherein the Hon'ble Supreme Court has held that any excess payment made wrongly and due to inadvertence to an employee concerned cannot be recovered after the retirement of such an employee. The petitioner has admittedly retired on 31.10.2013, and therefore, no such recovery can be made from the petitioner by the State-respondents.

19. Consequently, the orders dated 11.04.2014 and 22.04.2014 impugned in this writ petition are quashed.

20. The writ petition is allowed to this extent.

Order Date :- 06.12.2017

Sazia