Virendra Kumar Srivastava vs State Of ...
2022 Latest Caselaw 14855 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

       A.F.R.
 
       Reserved
 
       Court No. - 17
 
Case :- WRIT - A No. - 10156 of 2020
 
Petitioner :- Virendra Kumar Srivastava
 
Respondent :- State Of U.P.Thru.Prin.Secy.Home Lko.And Ors.
 
Counsel for Petitioner :- Mohd. Ghayasuddin Khan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.

1. The question which falls for consideration before this court in the present is whether the government servant is entitled for full pension and gratuity where criminal proceedings are pending against him?

2. It has been submitted by learned counsel for the petitioner that the petitioner was appointed as Assistant Wireless Operator in the Department of the Wireless, Police, Mahanagar, Lucknow on 16.6.1979 and has superannuated from the post of Principal/Head Wireless Operator one 31.3.2019. During his service a first information report was lodged against him in Case Crime No.249/1998 under sections - 417/467/468/471/218 IPC at Police Station, Mahanagar, Lucknow. The chargesheet has been filed in the said case on 29.01.2000 and the trial is in progress.

3. Subsequent to the lodging of the first information report the petitioner was suspended from service and disciplinary proceedings were also initiated against him which were concluded in favour of the petitioner where he was exonerated, and the order of suspension was revoked on 10.09.2004.

4. That subsequent to his retirement it has been submitted that no disciplinary proceeding are pending against him, but by means of the impugned orders the respondents have withheld the regular pension and gratuity on account of the fact that the criminal case is pending against him.

5. In support of his submissions the counsel for the petitioner has relied upon the judgement of this court rendered by coordinate bench of this court in the case of Udai Naraian Ojha vs State of U.P and others Writ A no. 27391 of 2012 delivered on 02.11.2020.

6. It was submitted that in the case of Udai Narayan Ojha (supra), the petitioner therein had superannuated on 31.12.2011 from the post of Assistant Sub Inspector in U.P Police and a criminal case was lodged against him in 2007 under section 409 IPC which was pending investigation. Subsequently the charge sheet was filed on 20.4.2013 subsequent to his superannuation and the opposite parties had withheld his gratuity. The court had considered the question:-

"whether the amount of gratuity payable to retired employee of state could be withheld merely on account of pendency of criminal investigation against him at the time of retirement. The connected issue is whether the charge sheet filed against the petitioner, subsequently, would justify withholding of gratuity even if the charges relate to a period which date back to more than 4 years from the date of superannuation?"

7. The SingleJudge after considering the FFull Bench of this court in Special Appeal no. 40 of 2017(Shivagopal versus state of U.P and four others) decided on 08.05.2019, as well as provisions of Article 351/351A and the Civil Services Regulations and allowed the writ petition after recording the following :-

"8. The power of State to withhold pension and gratuity, therefore, must be exercised strictly as per the applicable law and if the State action is not found to be in consonance with it, the withholding of gratuity would violate Article 300-A of the Constitution of India. The denial of such constitutional right, therefore, would be liable to be interfered with by this Court under Article 226 of the Constitution of India.

9. Even otherwise, the period of 4 years is a reasonable period from the date of the event, leading to submission of charge-sheet and the employee cannot be made to suffer for any un-explained or undue delay on the part of the State or the investigating agency. It is, otherwise, not shown by the respondents that such delay was attributed to any act or omission on part of the petitioner. The right 9 of State to proceed in accordance with law, is otherwise available by virtue of Article 351 of Civil Services Regulations if the charges are found proved in judicial proceedings and the public interest also would not be adversely affected, if the gratuity due is paid to the government servant. In view of the above discussions, this Court has no hesitation in holding that action of respondents in withholding payment of gratuity to petitioner is wholly illegal, arbitrary and cannot be sustained. 10. Writ petition succeeds and is allowed. The order dated 28.1.2012 passed by the respondent no. 3, so far as it relates withholding of gratuity payable to petitioner is concerned, is set aside. A writ of mandamus is issued to the respondents to forthwith release the withheld amount of gratuity together with 6% interest. In case the amount is not paid within four months from today, the petitioner shall be entitled to enhanced rate of interest at the rate of 8% per annum, and it shall be open for the authorities of the State to realise the additional interest from the salary of the officer found responsible for not ensuring release of gratuity to petitioner in terms of this order."

8. It has been submitted by the counsel for the petitioner the facts of the case in the case of Udai Narain Ojha are quite similar. In the case of Udai Narain Ojha the decision to withhold gratuity was taken subsequent to filing of the charge sheet against him when the criminal trial/ Judicial proceedings were pending against him, and accordingly prayed that his petition may be allowed in similar terms.

9. Per contra, the learned Standing counsel has opposed the prayer made in the writ petition and submitted that the controversy involved in the present case is fully covered by the judgement of the full bench in the case of Shivagopal vs state of U.P Special appeal no.40 of 2017 decided on 08.05.2019. It has been submitted that before the Full Bench the question which was considered as stated in para 3 of the Judgment was:-

"3. In the batch of writ petitions the controversy involved is with regard to the entitlement of the government servant to receive death come retirement gratuity on superannuation or otherwise pending judicial proceedings."

10. While answering the aforesaid question the Full Bench considered that the civil servants' claim to pension and gratuity is regulated by regulations/rules in force at the time when the officer demits office on attaining the age of superannuation or otherwise from the service of the government. The Full Bench concurred with the judgement of the division bench in the case of Sri Pal Vaish vs U.P Power corporation limited and another and Jayprakash and disagreed with the judgement in the case of Bhagwati Prasad Verma Vs state of U. P and others to hold that "pension includes gratuity" under the civil services regulations In a reference to article 351-A.

11. The Full bench considered that article 351-A empowers the governor to withhold or withdraw pension or a part of it permanently off a specified period and order recovery from pension for pecuniary loss caused to the government of the pensioner in departmental proceedings or Judicial proceedings where he has been found (i) guilty of grave misconduct or (ii) do of course back in early loss to the government by misconduct or negligence during his service period. The proviso to the article spells out the circumstances/ conditions in which the departmental proceedings/ Judicial proceedings are required to be instituted for the purpose of withholding/withdrawing pension.

12. It was also observed that the State Governments/Governor reserves to itself the power and right to withhold or withdraw pension or part thereof, whether permanently or for specified period or to order recovery from pension or part thereof, whether permanently or for a specified. Or to order recovery from pension of the whole or part of any pecuniary loss caused to the government upon conclusion of the disciplinary/judicial proceedings.

13. The Full Bench also considered the provisions applicable where the departmental or judicial proceedings are pending on the date of retirement. It considered the provisions of article 351AA inserted vide notification rated 24th October 1980, according to which where the proceedings or inquiry are pending against the government servant on date of superannuation, the government servant shall be entitled to provisional pension. In other words, pendency of departmental/judicial proceedings or any inquiry or enquiry to be instituted after retirement would not empower the state government to withhold pension, but Government servant maybe sanctioned provisional pension, computed as per rules. It follows that the full pension has to be computed on conclusion of proceedings/inquiry as the case may be.

14. The full bench further noticed the provisions of article 919A of the civil services regulation and held that:-

"56. Sub-Clause (3) to Article 919-A is negatively worded, it categorically mandates that gratuity shall not be paid to the government servant until conclusion of the departmental/or judicial proceedings or enquiry by the Administrative Tribunal. On plain reading, it is clear that in the event of pending proceedings/enquiry there is an embargo mandating that government servant shall not be entitled to gratuity until conclusion of the pending proceedings and final orders being issued thereon by the competent authority. That what was subservient/inert in the definition of pension that "pension includes gratuity" (Article 41) was made explicit and in contradiction to pension that gratuity is not payable to government servant pending disciplinary proceedings/or judicial proceedings, but the provision {Sub Clause (1)} is positively worded entitling the government servant provisional pension equal to maximum pension, admissible to the government servant on the basis of the qualifying service up to the date of retirement or suspension as the case may be. The provision (Sub-clause (3)) employs the word 'shall' thus making it mandatory. Article 351-AA uses the word 'may', thus leaving it to the competent authority to sanction provisional pension. We have not come across any provision in the Civil Service Regulations that prohibits or imposes restriction on sanction of provisional pension. The government servant in our opinion is entitled to provisional pension pending proceedings/enquiry.

57. Article 351-AA and 919-A get invoked in the event of pending departmental/judicial proceedings or an enquiry by Administrative Tribunal against the government servant. As against Article 351 and 351-A invoked upon the outcome of the disciplinary/judicial proceedings. It follows that where the government servant retires on attaining the age of superannuation or otherwise and against whom any departmental/judicial proceedings or any enquiry by the Administrative Tribunal is pending on the date of retirement or to be instituted after retirement, the following consequences flow: (i) government servant is entitled to provisional pension equal to maximum pension; (ii) no gratuity is payable pending departmental/judicial proceedings or the enquiry; (iii) full pension (commutation of pension) and gratuity is payable upon conclusion of the pending departmental/judicial proceedings/enquiry and final order being passed thereon by the competent authority."

15. After the above discussion it was held that during the pendency of disciplinary proceedings  the government servant is not entitled to gratuity but are entitled only to provisional pension, in the following terms:-

"64. In view of the specific provision viz. Article 351-AA and 919-A, a government servant against whom disciplinary/judicial proceedings is pending on retirement or to be instituted, the government servant is not entitled to gratuity, but to provisional pension subject to the outcome of the proceedings/enquiry. It is not open to the government servant at that stage/or during pendency of the disciplinary/judicial proceedings to contend that since allegations of 'grave misconduct' or pecuniary loss to the Government, prima facie, is not made out from the charge(s), therefore, he is entitled to full pension and gratuity. The stage to entertain such a plea has not arisen yet.

64. We are in agreement with and approve the ratio of Sri Pal Vaish and Jai Prakash on the proposition of law that government servant is not entitled to gratuity but to provisional pension during pendency of proceedings/enquiry.

65. We accordingly hold that during pendency of proceedings/enquiry government servant shall be sanctioned provisional pension and no gratuity is payable for the period upto conclusion of the proceedings/enquiry and orders being passed thereon by the competent authority.

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 pre-empt 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."

16. The full bench in the case of Shivagopal (supra) has considered the provisions of article 919A of the civil services regulations it has in unequivocal terms held that during pendency of disciplinary or judicial proceedings gratuity cannot be paid.

17. The counsl for the petitioner has relied upon the judgment of the Supreme Court in the case of state of Jharkhand and others versus jitendra Kumar Srivastava passed in civil appeal number 6770 off 2013 while interpreting provisions of rule 43(b) of the Bihar pension held that :-

"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."

18. In the present case the criminal proceedings are pending against the petitioner where the First Information report was lodged on 16.07.1998 and the charge sheet was filed on 29.01.2000 and the trial is underway. And it is only because of the pendency of the criminal proceedings against the petitioner that is post retiral dues including pension have been withheld. The case of the petitioner is covered by the judgment of the full bench in the case of Shiv Gopal (supra) and according to regulation 919A of the Civil Service Regulation, the petitioner is not entitled for payment of gratuity during pendency of criminal case.

19. The judgement of the Supreme Court in the case of State of Jharkhand versus jitendra Kumar Srivastav is not applicable in the present case as the Supreme Court therein has interpreted the provisions of Rule 43(b) of Bihar pension rules which lay down a very different procedure and criteria for grant of pension and post retiral dues and hence the benefit of the same cannot be claimed by the petitioner. The benefit of the judgment in the case of Uday Narayan Ojha is also not applicable in case of the practitioner as it is seen that the charge sheet was filed prior to his retirement and within 4 years of lodging of the first information report, enhanced the criminal proceedings are also not hit by the provisions of article 351A of the CSR.

20. Considering the aforesaid, this Court is of the considered view that the petitioner is not entitled for gratuity till the criminal proceedings are pending, but he is entitled to provisional pension and other post retiral dues for which there is no legal embargo.

21. In light of the above, subject to the observations made above, the writ petition is bereft of merits and is accordingly dismissed.

Dated: 21.10.2022. (Alok Mathur, J.)

A.Verma/RKM.