Allahabad High Court
Mahanand Pandey vs State Of U.P. And 5 Others on 16 March, 2021
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- WRIT - A No. - 2529 of 2021
Petitioner :- Mahanand Pandey
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Vinod Kumar Mishra
Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner and learned Standing Counsel.
Present writ petition has been preferred for a direction to respondent authorities to pay full final pension, gratuity and other retirement benefits to the petitioner forthwith and for a further direction to respondents to pay arrears of pension since April 2020 till the sanction of final pension to the petitioner.
The record in question reflects that the petitioner was appointed on the post of Constable on 27.12.1979 and thereafter got promotion on 21.1.2015. Thereafter he was promoted on the post of Sub Inspector on 22.6.2019. While posting at P.S. Chandwak Distt. Jaunpur as Sub Inspector he reached the age of superannuation on 31.3.2020. It is contended that in the year 1995 when the petitioner was posted as Constable at P.S. Bheempura Distt. Ballia the then SHO P.S. Bheempura lodged a Case Crime No.47/1995 against one Atal Bihari and Gyan Prakas Mishra both sons of Ravindra Kumar under Section 307, 332, 353, 427 IPC and under Section 5 Explosive Act. Thereafter a complaint was moved by one Umesh Chand Mishra alleging that an FIR be registered for murder of his younger brother Atal Bihari Mishra and attempt on the life of his and his father and the matter be enquired by CBCID. Thereafter, after the investigation a Case Crime No.47-A/1995 was registered against 16 police personnel including the petitioner under Section 147, 148, 504, 506, 323, 342, 395, 109, 217, 384, 297, 220, 193, 176, 177, 302, 120-B, 201 & 34 IPC P.S. Bheempura Ballia. Thereafter, a charge sheet was filed against all the accused including the petitioner. Finally in Sessions Trial Nos.216/2004 and 485 of 2004 the Addl. Sessions Judge, Court No.1, Ballia vide order dated 20.03.2013 acquitted all the accused police personnels including the petitioner. Against the acquittal order dated 20.03.2013 passed in Sessions Trial No.216 of 2004 the State Government filed the Government Appeal No.3374 of 2013 in which vide order dated 7.8.2013 the Court issued notices to respondent nos.2 to 16 and thereafter vide order dated 24.10.2013 admitted the said Government Appeal for hearing and till date the said Government Appeal is still pending.
It is contended that after lodging of the said criminal case the petitioner was placed under suspension vide order dated 24.7.1996 but later on vide order dated 26.12.1996 the suspension order was recalled and the petitioner was reinstated in the services and against the petitioner no departmental proceeding was initiated and for the lodging of the criminal case the petitioner was not given any departmental punishment. During the pendency of the said Government Appeal No.3374 of 2013 the petitioner was given promotion for the post of Head Constable vide order dated 21.1.2015 and thereafter on the post of Sub Inspector on 22.6.2019 and eventually he attained the age of superannuation on 31.3.2020. Now the petitioner is aggrieved for non-disbursement of full pension and other benefits. The petitioner has moved several representations to the authority concerned but no action has been taken as yet. It is also alleged in para 19 of the writ petition that the respondents are adopting pick and choose policy as Inspector Mubarak Ali, Inspector Bhashkar Upadhyay, Inspector Manju Yadav and Inspector Shubhash Chandra Shonkar, who were also accused in the Sessions Trial No.216/2004 and they retired prior to the petitioner and against them also the Government Appeal No.3374 of 2014 is pending consideration but they have been sanctioned final pension and gratuity while the case of the petitioner inspite of being similar to them, he is not being sanctioned the final pension and gratuity because of the pendency of the said Government Appeal.
Learned counsel for the petitioner submits that once the petitioner has been superannuated and acquitted in the pending criminal proceeding and the same is not stayed by higher courts, as such the petitioner is entitled for full retiral benefits in the light of the judgment passed by the Division Bench of this Court in Amrit Lal v. Chief Election Officer & Ors. (Writ Petition No.19693 of 2012) dated 1.8.2014. In support of his submissions, learned counsel for the petitioner has also placed reliance on the judgment and order dated 8.8.2014 passed in Writ-A No.66930 of 2013 (Rajeev Sharma v. State of U.P. & Ors.). The relevant portion of the said judgment is quoted as under:-
"............Civil Service Regulation is applicable upon the employees of the power corporation, regulation 351 AA and regulation 919 A(3), prohibits payment of death-cum-retirement gratuity until the conclusion of departmental or judicial proceeding. Division Bench in Jai Prakash (Supra) has held "judicial proceedings" would necessarily include pendency of criminal case. The question to be answered is as to whether pendency of criminal appeal, against acquittal, will include "pending judicial proceeding" In Amrit Lal (Supra), Division Bench observed pendency of criminal appeal against acquittal is not a ground for withholding the retiral dues. After acquittal there is nothing against the employee, more so, in the facts of the case, the respondents did not choose to initiate any disciplinary proceedings after acquittal nor did they examine the judgement of the trial court to find out, as to whether petitioner was acquitted 'honourably', once failing to exercise their powers under the rule to initiate any proceedings, it is not open for the respondents to withhold retiral dues, merely on pendency of criminal appeal.
The impugned order dated 22.11.2012 passed by Chief Engineer (Jal Vidyut), respondent no. 3 and order dated 6.6.2013 passed by Executive Engineer, Electricity Distribution Division, Pilibheet, respondent no. 4 is quashed.
The respondents are directed to release arrears of salary for the suspension period, retiral dues and terminal benefits of the petitioner within three months from the date of service of this order before the competent authority. Interest @ 9% is awarded on delayed payment of pension and gratuity from the date of entitlement to the date of actual payment, failing which same shall carry interest @ 18% per annum from the date the amount falls due.
With the above directions, the writ petition is allowed.
No order as to costs."
On the other hand, learned Standing Counsel has vehemently opposed the writ petition and on the basis of instructions has submitted that once appeal is pending consideration against the judgment of the trial court, as such rightly the full pension and other retiral benefits have been withheld and no interference is required in the matter.
The Court has proceeded to examine the record in question and find that though the appeal has been admitted against the order of the trial court but it is also apparent that the same has not been stayed as yet. In such situation the controversy in hand is squarely covered by the ratio decided in Amrit Lal (Supra) as well as Rejeev Sharma (Supra). In the aforesaid facts and circumstances, mandamus is issued to the respondents to ensure entire retiral benefits to the petitioner within six weeks from the date of production of certified copy of this order, failing which the petitioner shall be entitled for 12% interest on the delayed payment.
The writ petition stands allowed accordingly. The instructions produced by learned Standing Counsel dated 12.3.2021 is taken on record.
Order Date :- 16.3.2021
SP/
