Devendra Kumar Sharma vs State Of U.P. And 4 Others
2021 Latest Caselaw 11213 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 28.07.2021
 
Delivered on 08.10.2021
 

 
Court No. - 5
 

 
Case :- WRIT - A No. - 15093 of 2020
 

 
Petitioner :- Devendra Kumar Sharma
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Bhawani Prasad Shukla
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saral Srivastava,J.

1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondent nos. 1 to 5.

2. The petitioner, through the present writ petition, has assailed the order dated 17.11.2020, passed by respondent no.2-Superintendent of Police, Baghpat, by which he has refused to grant final pension and full gratuity to the petitioner on the ground of pendency of criminal case against him.

3. Brief facts of the case are that the petitioner was appointed as Constable (Civil Police), Uttar Pradesh on 13.08.1980 and retired on 31.12.2020.

4. It appears that during service on 07.12.2010, an FIR under Section 324/506 I.P.C. was registered against the petitioner on the complaint of his brother, namely, Ratan Kumar Sharma with an allegation that the petitioner and his family members along with some other anti-social elements came to his house and had beaten him and his family members. In the said incident, the daughter of the complainant had suffered injuries.

5. According to the petitioner, the charge sheet in the said criminal case was submitted by the police on 02.02.2011 under Sections 324/506 I.P.C. against him and his wife, and due to the pendency of the said criminal case, his final pension and full gratuity have not been disbursed, rather he had been sanctioned the provisional pension and 90% of the gratuity.

6. In the counter affidavit filed by the respondents, in paragraph no.5, it is stated that the petitioner had been awarded adverse entry by the punishment order No.Da-8/2001, dated 15.05.2001 of Senior Superintendent of Police, District Dehradun, and order No.Na-242/2010 dated 31.01.2011 of Deputy Inspector General of Police, District Meerut. Besides the above, a criminal case being Case Crime No.1787 of 2010, under Sections 324/506 I.P.C., P.S. Sihanigate, District Ghaziabad is also registered against the petitioner, which is pending before the Court of Chief Judicial Magistrate-III, Ghaziabad.

7. In paragraph no.11 of the counter affidavit, It is stated that Government Order No.Sa-3-1713/Das-87-933/89, dated 28.07.1980 provides that during the pendency of criminal proceedings or any judicial proceedings, only provisional pension is paid and payment of gratuity is withheld.

8. Challenging the aforesaid order, learned counsel for the petitioner submitted that the order impugned withholding 10/% gratuity and not granting full pension to the petitioner on the ground of pendency of criminal case is not sustainable for the reason that the gratuity, as well as full pension, can be withheld only when an employee is guilty of grave misconduct or convicted of 'serious offence'.

9. He submits that the authority has to apply its mind and record a prima facie satisfaction that the criminal charge leveled against the petitioner will fall within the ambit of 'serious crime', and once that be so, only then the authority can withhold the payment of gratuity and full pension. Accordingly, he submits that the impugned order does not reflect any application of mind by the authority or any finding of the authority recording prima facie satisfaction that the charges leveled against the petitioner fall within the ambit of 'serious crime'. Thus, he submits that it is a fit case where the authority should be directed to release the full gratuity and re-fix the final pension along with interest.

10. Per-contra, learned Standing Counsel would contend that the authorities are well within their domain to withhold the gratuity and refuse to grant full pension because of Article 351-A of Civil Service Regulation. He submits that admittedly, a criminal case under Sections 324/506 I.P.C. is pending against the petitioner in which charge sheet had been submitted on 02.02.2011, therefore, the authorities have rightly withheld 10% gratuity and granted provisional pension instead of full pension.

11. I have heard learned counsel for the parties and perused the record.

12. Before dealing with the contentions advanced by both the counsels, it would be apt to refer to the judgment of Full Bench of this Court in the case of Shivagopal and others Vs. State of U.P. and others, reported in 2019 (5) ADJ 441 (FB), wherein this Court considered the question (i) whether the government servant is entitled to full pension and gratuity on and during the pendency of judicial proceedings; (ii) whether the government servant is entitled to full pension/death-cum-retirement gratuity before the conclusion of the disciplinary proceedings/or judicial proceedings and final orders being passed thereon by the competent authority.

13. In this regard, relevant paragraph nos.31, 36, 37, 38, 39 & 40 of the Full Bench judgment are reproduced here-in-below:

"31. On plain reading, Article 351 confers power upon the State Government of withholding or withdrawing pension or any part of it, if the pensioner be convicted of 'serious crime' or be guilty of grave misconduct. In other words the State Government can withhold or withdraw pension on two grounds: (i) convicted of serious crime; (ii) guilty of grave misconduct; but not otherwise. In other words mere pendency of criminal case or disciplinary proceedings is not sufficient to withhold/or withdraw pension under Article 351.

36. Expression 'serious crime' would include offences having dangerous possible consequences. Black Law Dictionary defines serious offence as violation of law that is significant in effect and carries more than a six months punishment.

37. Section 2 (54) of Juvenile Justice Act, 2015, defines 'serious offence':

"serious offences" includes the offences for which the punishment under the India Penal Code or any other law for the time being in force, is imprisonment between three to seven years."

38. The expression 'judicial proceedings' includes civil cases, plausible civil cases where pension can be withheld/withdrawn would include matrimonial disputes, succession cases, right and entitlement of spouses and their children, domestic violence, civil death etc. involving the government servant.

39. The expression 'serious crime' has to be understood in the context of service jurisprudence involving the government servant. It may be any act or omission which in the opinion of the competent authority is serious enough and calls for punitive action in terms of Article 351. It has no bearing with the quantum of sentence but with the nature of the offence and the degree of involvement of the government servant in the commission/omission of the crime.

40. Article 351-A empowers the Governor to withhold or withdraw pension or a part of it permanently or for specified period and order recovery from pension for pecuniary loss caused to the Government if the pensioner in departmental proceedings or in judicial proceedings, has been found: (i) guilty of grave misconduct or (ii) to have caused pecuniary loss to Government by misconduct or negligence during his service. The proviso to the Article spells out the circumstances/ conditions in which the departmental proceedings/judicial proceedings is required to be instituted for the purpose of withholding/withdrawing pension. Article 351-A reads thus:-

"351-A [substituted vide notification dated 6 September 1961]. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement:

Provided that-

(a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment-

(i) shall not be instituted save with the sanction of the Governor.

(ii) shall be in respect of an event which took place not more than four years before the institution of such proceeding; and

(iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.

(b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and

(c) the Public Service Commission, U.P. shall be consulted before final orders are passed.

[Provided further that of the order passed by the Governor relates to a cash dealt with under the Uttar Pradesh Disciplinary Proceedings,(Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission].

Explanation-For the purposes of this article-

(a) Departmental proceeding shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date ; and

(b) judicial proceedings shall be deemed to have been instituted:

(i) in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal Court ; and

(ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to Civil Court.

Note- As soon as proceedings of the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned."

14. The Full Bench also considered the question, the stage at which the government servant is entitled to the full pension or the gratuity. In this regard, relevant paragraph nos. 66, 67 & 69 of the judgment is reproduced here-in-below:-

"66. The question that arises is whether the government servant/pensioner can seek intervention at a stage before the competent authority has had the occasion to pass appropriate order upon conclusion of the disciplinary/ judicial proceedings/or enquiry by Administrative Tribunal. We are of the opinion that such a course is not available to the pensioner and if allowed would entail serious consequences, otherwise not mandated by the Regulations. It is not open to the government servant/pensioner, in view of the conjoint reading of the Articles to preempt the pending proceedings/enquiry by walking away with pension/gratuity without awaiting the outcome/conclusion of the disciplinary/judicial proceedings/enquiry. The competent authority upon conclusion of the proceedings would be in a position to apply its mind on the outcome of the proceedings/enquiry and pass order thereon either withholding/withdrawing/ reduction of pension or directing recovery of pecuniary loss from pension under Articles 351/ 351-A of the Civil Service Regulations.

67. Article 351-AA/919-A came to be incorporated later (1980), the rule making authority was fully aware of the existing provisions, in particular, Article 351/351-A, but the rule making authority, in view of the plain and unambiguous language used therein (Article 351-A), while incorporating Article 351-AA/919-A, did not consider it appropriate to mandate the release of full pension/gratuity to the government servant until conclusion of the proceedings. The entitlement to provisional pension and deferment of gratuity during pendency of the proceedings was not made subject to any further conditions at that stage. The stage was deferred until orders thereon was required to be passed by the competent authority recording satisfaction or otherwise upon conclusion of proceedings/enquiry.

69. It, therefore, follows that the stage of passing appropriate order under Article 351/351-A by the competent authority is mandated at the conclusion of the proceedings and certainly not at the stage during pendency of the disciplinary/judicial proceedings.The cause to the pensioner would arise after the order is passed by the competent authority upon conclusion of the proceedings and findings returned thereon. In the opinion of the competent authority if the pensioner is guilty of grave misconduct, or convicted of serious crime, or caused pecuniary loss, the consequence under Article 351/351-A would follow. The government servant/ pensioner would have to wait until such an order is passed before claiming full pension and gratuity. In other words the cause to the government servant of taking remedy would arise after order of the competent authority is passed upon conclusion of the proceedings/enquiry and not during pendency of the proceedings/enquiry."

15. It would be apt to refer to para no.31 of the Full Bench judgment where it is held that Article 351 confers power upon the State Government to withhold or withdraw pension of a pensioner on two grounds; the pensioner is convicted of serious crime; secondly, he is guilty of grave misconduct; but not otherwise. The Full Bench further clarified that mere pendency of criminal case or disciplinary proceedings is not sufficient to withhold or withdraw pension under Article 351.

16. Para no.39 of the judgement deals with the expression 'serious crime'. The Full Bench noted that the expression 'serious crime' has to be understood in the context of service jurisprudence involving the government servant. It may be any act or omission which in the opinion of the competent authority is serious enough and calls for punitive action in terms of Article 351. The Full Bench noted that it has no bearing with the quantum of sentence but with the nature of the offence and the degree of involvement of the government servant in the commission or omission of the crime which is relevant to determine whether the act of the employee falls in the ambit of 'serious crime'.

17. It would be relevant to have a glance at Article 351-A which empowers the Governor to withhold or withdraw a pension or a part of it permanently or for specified period and order recovery from pension for pecuniary loss caused to the Government if the pensioner in departmental proceedings or in judicial proceedings, has been found: (i) guilty of grave misconduct or (ii) to have caused pecuniary loss to Government by misconduct or negligence during his service.

18. The Full Bench has held in para-69 of the judgment that the stage of passing the order under Article 351/351-A by the competent authority arises only on the conclusion of the proceedings and not during the pendency of disciplinary or judicial proceedings. If the competent authority concludes that the pensioner is guilty of grave misconduct or is convicted of serious crime or has caused pecuniary loss to the government, the consequence under Article351/351A would follow. Consequently, the cause of action to the government servant of taking remedy would arise after the order is passed by the competent authority upon conclusion of the proceedings/enquiry and not during pendency of the proceedings or enquiry.

19. In the context of the present case, it is also pertinent to notice explanation (b) appended to Article 351-A which defines when the judicial proceedings shall be deemed to have been instituted. According to which, criminal proceedings shall be deemed to be instituted on the date on which complaint is made, or a charge-sheet is submitted to the criminal Court.

20. From the conjoint reading of Articles 351 & 351-A of Civil Service Regulations, it is explicit that one of the conditions in which the State Government/Governor can withhold or withdraw pension or part thereof, whether permanently or for a specified period or to order recovery from a pension of the whole or part of any pecuniary loss caused to the Government if the pensioner is convicted of 'serious crime'. Besides it, there are several other instances, which have no relevance in the context of the present case.

21. Thus, from the aforesaid deliberation, it is evident that to withhold the full pension or any part of pension, the crime of which the pensioner is charged must be a 'serious crime'. If the crime alleged against the pensioner, does not fall within the ambit of 'serious crime', the Governor or the State Government cannot withhold the pension or any part of it or gratuity of the pensioner.

22. Though, the Full Bench has held in para nos.-66 to 69 of the judgment that the cause of action to the pensioner would arise after the order is passed by the competent authority upon conclusion of the proceedings and findings returned thereon, but the Full Bench in para no.31 of the judgment has observed that mere pendency of criminal case or disciplinary proceedings is not sufficient to withhold or withdraw pension under Article 351 of Civil Service Regulations.

23. Further, in para no. 39 of the judgment it has been observed that the expression 'serious crime' in the context of service jurisprudence involving the government servant refers to any act or omission which in the opinion of the competent authority is serious enough and calls for punitive action in terms of Article 351. It further holds that the quantum of sentence is not relevant but the nature of the offence and the degree of involvement of the government servant in the commission or omission of the crime is relevant.

24. Since, the Full Bench in para no.31 of the judgment has held that mere pendency of criminal case or disciplinary proceedings is not sufficient to withhold or withdraw pension under Article 351 of the Civil Service Regulations and further elaborated expression 'serious crime' in para no.39 of the judgment, therefore, from the conjoint reading of the aforesaid two paragraphs of the judgment, it can be safely culled out that the competent authority while withholding the gratuity and pension of the pensioner should apply its mind to see whether the nature of crime in which the pensioner is involved comes within the ambit of 'serious crime' or not. In doing so, the competent authority must also bear in mind that whether the complaint and charge sheet against the pensioner was filed during the service period, and if the allegations in the complaint and charges against the petitioner fall within the ambit of 'serious offence' which is unbecoming of a Government Servant, then how and in what contingency, the pensioner was allowed to continue in employment even though the department knew of the pendency of criminal case against the pensioner, and whether in such circumstances, it would be appropriate to withhold gratuity and pension of the pensioner on the ground of pendency of criminal case against him.

25. Once, the competent authority on the subjective satisfaction of the case holds in the light of paragraph nos. 31 & 39 of the full Bench Judgment and observation made above that the crime which is alleged against the pensioner falls within the ambit of 'serious crime', the opinion of the competent authority would be final and the pensioner has to wait till the conclusion of disciplinary or judicial proceeding, and the Court should constraint to interfere with the finding of the competent authority unless the finding is without application of mind or is based on irrelevant considerations or is perverse or is otherwise not sustainable in law.

26. Now, coming to the facts of this case, the competent authority had knowledge about the filing of charge sheet against the petitioner in the criminal case on 02.02.2011, and the petitioner was allowed to continue in service thereafter for about 09 years till retirement i.e. 31.12.2020; yet it passed only one-line order that "10% gratuity and final pension of the petitioner is withheld due to pendency of criminal case". The impugned order does not reflect any application of mind by the competent authority nor there is any finding that the offence alleged against the petitioner falls within the category of 'serious crime' to entitle it to invoke the power under Article 351 of Civil Service Regulations.

27. This Court in normal circumstances would have remanded the matter to the competent authority, but considering the fact that the charge sheet in the criminal case had been filed on 02.02.2011 and the petitioner was allowed to continue in service thereafter about 09 years till retirement, i.e, 31.12.2020, therefore, this Court believes that the competent authority was of the opinion that the nature of crime in which the petitioner has been charge-sheeted is not 'Serious Offence' so as to warrant any disciplinary proceeding against the petitioner, and accordingly, he was allowed to continue in service uninterruptedly till retirement. Therefore, in view of paragraph-31 of the Full Bench judgment of this Court in the case of Shivagopal & others (supra), this Court believes that the order impugned is not sustainable and is, accordingly, set aside with the direction to the respondents to release 10% unpaid gratuity and fix and pay final pension including arrears to the petitioner within three months from the date of production of a certified copy of this order.

28. Consequently, for the reasons given above, the writ petition is allowed with no orders as to cost.

Order Date :-08.10.2021

NS