Allahabad High Court
Union Of India Thru Fa & Cao North ... vs Shivendra Pratap Singh & Anr. on 25 August, 2021
Bench: Ritu Raj Awasthi, Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 1
Case :- SERVICE BENCH No. - 25169 of 2019
Petitioner :- Union Of India Thru Fa & Cao North Eastern Railway & Ors
Respondent :- Shivendra Pratap Singh & Anr.
Counsel for Petitioner :- Chandra Shekhar Sinha
Counsel for Respondent :- H.S. Tiwari
Hon'ble Ritu Raj Awasthi,J.
Hon'ble Dinesh Kumar Singh,J.
1. Heard Mr. Chandra Shekhar Sinha, learned counsel for the petitioners, and Mr. H.S. Tiwari, learned counsel for respondent-Shivendra Pratap Singh.
2. This writ petition has been filed, challenging the order dated 5th April, 2019 whereby O.A.No.332/00324/2016 has been disposed of with a direction to the petitioners to make payment of gratuity and commutation of pension to the respondent within a period of three months from the date of communication of the order.
3. Learned counsel for the petitioners has argued that the learned Tribunal has grossly erred in relying upon the order dated 30th January, 2019 passed by it in the case of Prem Pal Singh Bisht Vs. Union of India and others without ascertaining that the facts of the case of Prem Pal Singh Bisht (supra) were altogether different from the case of the respondent. It is submitted that in the case of Prem Pal Singh Bisht, charge-sheet was filed under Section 420 IPC and the concerned Court had taken cognizance and the cognizance order was challenged in the proceedings under Section 482 CrPC. The High Court had set-aside the cognizance order and remanded the matter for fresh order. On account of pendency of alleged criminal case, retiral benefits such as gratuity, full pension and leave encashment were withheld. Being aggrieved, Prem Pal Singh Bisht approached the High Court, which had dismissed the same.Thereafter O.A. was filed, which was allowed.
4. In the present case, the respondent, along with certain other persons, has been charged for embezzlement. The trial is pending and, in the meantime, in the O.A. the order has been passed by the learned Tribunal, relying on the judgment passed in the case of Prem Pal Singh Bisht for release of gratuity and commutation of pension etc.
5. Submission made on behalf of the petitioners is that gratuity of an employee can be withheld in view of law laid down by the Full Bench of this Court in the case of Shivagopal Vs. State of U.P. and 4 others, 2019, Legal Eagle 468.
6. Mr. H.S. Tiwari, learned counsel for the respondent, on the other hand, submits that no disciplinary proceedings have been held against the respondent and, merely on the basis of pendency of criminal proceedings, the entire gratuity amount of Rs. 10 Lacs and commutation of pension amount of Rs. 6 Lacs (total Rs. 16 Lacs) have been withheld. The learned counsel submits that even if the respondent is found guilty of embezzlement, the embezzled amount is only Rs.2,55,285/-. It is submitted that charge is against five persons, including the respondent.The submission is that the entire gratuity amount and commutation of pension cannot be withheld even in view of the Full Bench judgment of this Court in the case of Shivagopal Vs. State of U.P. and others (supra) which has been relied by the learned counsel for the petitioners.
7. We have considered the submissions and gone through the record.
8. It is admitted fact that the criminal proceedings have not been finalized and, they are still pending against the respondent and other accused persons. The disciplinary proceedings relating to the alleged embezzlement were not held or contemplated. The respondent has attained the age of superannuation and retired from service, as such, he is entitled to get the post retiral benefits. On the basis of pendency of criminal proceedings, the entire gratuity and commutation of pension has been withheld. Even if we come to the conclusion that the learned Tribunal has not rightly relied on its judgment rendered in the case of Prem Pal Singh Bisht Vs. Union of India (supra), it cannot be said that the entire gratuity amount and commutation of pension can be withheld. In the case of Shivagopal (supra), which has been relied by the learned counsel for the petitioners, the Court has held that the full amount of gratuity and pension cannot be released during the pendency of criminal proceedings. It does not mean that the entire gratuity amount and commutation of pension is to be withheld during the pendency of criminal proceedings. The equity demands that the amount of embezzlement at the most can be withheld while considering the release of post retiral benefits of a retired employee. In this view of the matter, we dispose of this writ petition with the observation that the amount of Rs.2,55,285/- may be withheld from the total amount of gratuity and commutation of pension and, the remaining amount shall be released in favour of the respondent within a period of three weeks from the date certified copy of this order is served. However, the withheld amount shall be subject to final decision in the criminal trial.
.
[D.K. Singh, J.] [R.R. Awasthi, J.]
Order Date :- 25.8.2021
MVS/-
