Arvind Kumar Pandey vs State Of U.P.Thru.Spl.Secy. ...
2021 Latest Caselaw 7264 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 8
 

 
Case :- SERVICE SINGLE No. - 7076 of 2021
 

 
Petitioner :- Arvind Kumar Pandey
 
Respondent :- State Of U.P.Thru.Spl.Secy. Planning & Ors.
 
Counsel for Petitioner :- Shivanshu Goswami,Yashwant Yash
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Irshad Ali,J.

1. In view of Covid-19 pandemic, this case is being heard through video conferencing.

2. Heard Shri Yashwant Yash, learned counsel for the petitioner and Shri Alok Sharma, learned Additional Chief Standing Counsel for the respondents-State.

3. By means of the present writ petition, the petitioner is challenging the order dated 29.07.2020, whereby payment of post retiral dues of the petitioner has not been released on the ground that criminal revision against the order of discharge is lying pending consideration along with delay condonation application.

4. Brief fact of the case is that the petitioner got appointed on the post of District Statistics Officer vide appointment letter dated 11.01.1989 in pursuance to a selection proceeding initiated by the U.P.P.S.C., Allahabad. Subsequently, the post of District Statistics Officer was merged and it was renamed as District Economic and Statistics Officer. Taking into consideration the work and conduct of the petitioner, he was granted promotion on the post of Deputy Director on 03.04.1999. Subsequently, he was granted promotion on the post of Joint Director on 21.02.2012 and Additional Director on 10.04.2017 and on 07.03.2019, he got promotion on the post of Director in the respondent - department and in pursuance thereof, he joined the post and discharged his duties with the utmost satisfaction of the respondent - department. On attaining the age of superannuation, the petitioner retired from service on 31.07.2020. Thereafter, the papers in regard to payment of post retiral dues and pension to the petitioner have been placed before the Director,  Pension Directorate, U.P. vide letter dated 13.07.2020. In regard to grant of provident fund after sanction of 90% amount payable to the petitioner and 300 day's leave encashment a proposal was submitted before the Director, Planning department vide letters dated 02.07.2020 and 14.07.2020. However, the Director of Pension returned the papers submitted by the planning department vide letter dated 18.08.2020 and vide impugned order dated 29.07.2020, payment of entire post retiral dues to the petitioner have been stopped on the ground that criminal (defective) revision No.90/2011 is pending against the petitioner. Hence, the present writ petition has been filed before this Court.

5. Submission of learned counsel for the petitioner is that vide government order dated 28.08.1989, it has been prescribed that as per Regulation 351-A of Pension Rules, if a government servant commits any crime causing financial loss to the government or if he has been found guilty in case of moral turpitude and has been convicted, the Hon'ble Governor is empowered to pass an order stopping part pension of the employee, however, the said order can be passed after issuance of charge sheet in a criminal or departmental proceeding and in case of non initiation of disciplinary / judicial proceeding, the post retiral dues of an employee cannot be stopped. Therefore, he submitted that the impugned order has been passed in violation of Regulation 351-A, therefore, the same being contrary to Regulation 351-A of Pension Rules cannot sustain and is liable to be set-aside.

6. He further submitted that before passing the impugned order, the petitioner has not been afforded opportunity to defend his case nor any notice was issued to him, therefore, the impugned order being violative of principles of natural justice is liable to be quashed.

7. He next submitted that Hon'ble Apex Court as well as this Court in catena of decisions has held that under Regulation 351 -A of Pension Rules, in case of non-passing of order by Hon'ble Governor to stop pension, the post retiral dues of the petitioner cannot be stopped. He further submitted that there is no revision pending against the petitioner in the eyes of law in view of the fact that the delay in filing the revision has not been condoned. He, therefore, requested that the petitioner is entitled for his due post-retiral dues. In support of his submissions, he placed reliance upon following judgments:

a) Mohammad Majhar Vs. State of U.P. and 2 others; Writ Petition No.4818 of 2020

b) Dr. Heralal Vs. State of Bihar and others; Civil Appeal No.1677-1678 of 2020.

c) Pramod Shankar Shukla v. State of U.P. and another; Writ Petition No.33206 of 2019, dated 05.12.2019.

8. On the other hand, Shri Alok Sharma, learned Additional Chief Standing Counsel appearing for the respondents-State has vehemently opposed the prayer made by  learned counsel for the petitioner but could not dispute the ratio of judgments referred hereinabove.

9. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as the judgments rendered herein above.

10. To resolve the controversy involved in the present writ petition, relevant portion of the judgments relied upon by learned counsel for the petitioner are being quoted below:

a) Mohammad Majhar Vs. State of U.P. and 20 others (Supra):

"9. The power under Regulation 351 is to be exercised by State Government for withholding or withdrawing a pension or any part of it, if the pensioner is convicted for serious crime or is guilty of grave misconduct. Regulation 351A empowers the State Government to order for recovery from the pension on account of losses found in judicial or departmental proceedings to have been caused to the Government by negligence or fraud of such officer during his service. There is no difficulty in exercising the power for ordering recovery of pension when finding comes in a judicial or departmental proceedings. The question for consideration in the present case is as to whether the State Government can direct for not payment of pension and gratuity when the departmental or judicial proceedings have not yet been finalized. The State Government has issued Government order dated 28th October, 1980 on the subject. By Government order dated 28th October, 1980, it has been provided that those employees against whom on the date of retirement departmental, judicial or proceedings before Administrative Tribunal are proceeding or it is necessary to draw such proceedings shall be given interim pension, but gratuity be not paid till finalization of the proceeding. The same provision has again been reiterated by Government order dated 28th July, 1989, in which, reference has also been made to the Government order dated 28th October, 1980."

b) Dr. Heralal Vs. State of Bihar and others (Supra):

"13.1. In our considered view, the Circulars dated 22.08.1974 and 31.10.1974, and Government Resolution No. 3104 dated 31.07.1980, were merely administrative instructions/executive orders. They were not issued in exercise of the power under Article 309 of the Constitution and cannot be said to have the force of law.

The Government Resolution dated 31.07.1980 came up for consideration before this Court in State of Jharkhand and others Vs. Jitendra Kumar Srivastava and others. After considering Rule 43(b) of the Bihar Pension Rules and Government Resolution No. 3104 dated 31.07.1980, this Court held that the State had no authority or power to withhold the full amount of pension or gratuity of a Government servant during the pendency (2013) 12 SCC 210 of judicial or departmental proceedings. This Court held that:

"9. Having explained the legal position, let us first discuss the rules relating to release of Pension. The present case is admittedly governed by the Bihar Pension Rules, as applicable to the State of Jharkhand. Rule 43(b) of the said Pension Rules confers power on the State Government to withhold or withdraw a pension or part thereof under certain circumstances. This Rule 43(b) reads as under: .....

From the reading of the aforesaid Rule 43(b), following position emerges:

(i) The State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding.

(ii) This provision does not empower the State to invoke the said power while the department proceeding or judicial proceeding are pending.

(iii) The power of withholding leave encashment is not provided under this rule to the State irrespective of the result of the above proceedings.

(iv) This power can be invoked only when the proceedings are concluded finding guilty and not before.

.....

11. Reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. ONLY when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending.

13.4 It is well settled that the right to pension cannot be taken away by a mere executive fiat or administrative instruction. Pension and gratuity are not mere bounties, or given out of generosity by the employer. An employee earns these benefits by virtue of his long, continuous, faithful and un-blemished service.4 The right to receive pension of a public servant has been held to be covered under the "right to property" under Article 31(1) of the (2013) 12 SCC 210 Constitution by a Constitution bench of this Court in Deokinandan Prasad VS. State of Bihar, which ruled that:

" 30. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh Vs. Union of India [AIR 1962 Punj 503] . It was held that such a right constitutes "property" and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in letters patent appeal by the Union of India. Letters Patent Bench in its decision in Union of India vs. Bhagwant Singh [ILR 1965 Punj 1] approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority.

13.5 The aforesaid judgment was followed in D.S. Nakara and others Vs. Union of India by another Constitution bench of this Court, which held that:

"20. The antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad Vs. State of Bihar and others: wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and another Vs. Iqbal Singh.

13.6 The right to receive pension has been held to be a right to property protected under Article 300A of the Constitution even after the repeal of Article 31(1) by the Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20.06.1979, as held in State of West Bengal Vs. Haresh C. Banerjee and others."

c) Pramod Shankar Shukla v. State of U.P. and another (Supra):

"In the present case, admittedly, the petitioner has been exonerated in the departmental proceedings and has been discharged from criminal case. However, defective criminal revision has been filed before this Court challenging the order of the trial court dated 11.4.2019, which is pending consideration. As I have observed above that pending defective criminal revision may not cause any prejudice to the petitioner, therefore, in the light of the guidelines given in Government Order dated 28.5.1997, the petitioner may be provided those benefits, which have been recommended but kept under sealed cover strictly in terms of para-10 of the Government Order dated 28.5.1997.

Considering the rival submissions of learned counsel for the parties and perusing the material available on record, I am of the considered opinion that the impugned order dated 30.10.2019 passed by the Additional Chief Secretary of the department has not been passed considering the factual and legal matrix of the issue vis-a-vis the guidelines of Government Order dated 28.5.1997. Besides, no revision was filed on or before 30.10.2019 despite the statutory period had been expired, the authority concerned has observed that he shall obtain the information from the C.B.I. as to whether any appeal or revision has been filed against the order dated 11.4.2019 or not. When the revision was not filed within the statutory period as prescribed under the Act, at least the petitioner should be provided the benefit of recommendation, which has been kept under sealed cover. Therefore, the order dated 30.10.2019 is not sustainable in the eyes of law and is accordingly quashed."

11. In the case of Pramod Shankar Shukla (Supra), this Court while considering the controversy in regard to non-payment of post retiral dues due to pendency of a revision which was filed beyond statutory period of limitation along with delay condonation application, has recorded finding that when the revision was not filed within the statutory period as prescribed under the Act, the revision will not be treated to be pending; the petitioner should be provided the benefit of post retiral dues and the same would not have been stopped on the said ground.

12. In the case in hand, the petitioner was discharged by the competent court of law against which after a long delay, Revision (Defective) No.90/2011 was filed along with delay condonation application and the application has not been allowed by condoning the delay, therefore, mere pendency of a revision which was filed with delay cannot be treated to be pending and on that score, the post retiral dues of the petitioner cannot be withheld. The claim setup by the petitioner is within four corners of the judgment relied upon by learned counsel for the petitioner in the case of Pramod Shankar Shukla (supra).  Thus, the petitioner is entitled for the payment of post retiral dues on simple interest due to delay caused by the respondents in making payment.

13. Accordingly, considering the facts and circumstances of the case as well as judgment in the case of Pramod Shankar Shukla (supra), this writ petition succeeds and is allowed.

14. The impugned order dated 29.7.2020 is hereby set aside. The respondents are directed to release the post-retiral dues of the petitioner i.e. payment of pension, leave encashment of 300 days, 10% G.P.F. and gratuity with simple interest at the rate of 8% per annum within a period of six weeks from the date of production of a certified copy of this order.

Order Date :- 8.7.2021

GK Sinha / Adarsh K Singh