Allahabad High Court
State Of U.P. Thru. Prin. Secy. Home ... vs Ram Sajeevan Verma on 13 December, 2023
Author: Rajan Roy
Bench: Rajan Roy, Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
High Court of Judicature at Allahabad
(Lucknow)
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Neutral Citation No. - 2023:AHC-LKO:81688-DB
Judgment Reserved on: 02.12.2023
Judgment Delivered on: 13.12.2023
Reserved
Case :- SPECIAL APPEAL No. - 536 of 2023
Appellant :- State Of U.P. Thru. Prin. Secy. Home Civil Secrett. Lko. And 2 Others
Respondent :- Ram Sajeevan Verma
Counsel for Appellant :- C.S.C.
Counsel for Respondent :- Jai Ram Singh Yadav
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Hon'ble Rajan Roy,J.
Hon'ble Manish Kumar,J.
(Per: Rajan Roy,J.)
1. First of all, it needs to be mentioned that when the appeal was heard it was defective being Special Appeal Defective No. 470 of 2023. At the time of hearing the delay was condoned and Office was directed to allot regular number, consequently the Office has allotted regular number i.e. Special Appeal No. 536 of 2023. Now, the final judgment is being passed in regular Special Appeal.
2. Heard Mr. Manish Jauhari, learned standing counsel for the State-appellant as well as Mr. Jai Ram Singh Yadav, learned counsel for the respondent.
3. This special appeal has been filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 by the State challenging the judgment and order dated 26.02.2023 passed by writ court in Writ A No. 6422 of 2021 allowing the said writ petition filed by the respondent. The writ Court has quashed the order dated 27.11.2019 passed by the concerned authority denying regular pension to the respondent-petitioner on the ground of pendency of criminal case bearing case Crime No. 294 of 2010, under Sections 147, 452, 504, 506, 323, 427 IPC, Police Station Ashiyana, District Lucknow in the Court of competent criminal jurisdiction in view of the Government policy in this regard as contained in the Government Order dated 28.10.1980.
4. At the very outset, it needs to be mentioned that as per the order impugned before the writ Court interim pension with admissible dearness allowance is being paid to the respondent-petitioner. He has also been paid leave encashment and GPF amount as is mentioned in paragraph 4 of the counter affidavit, a fact which is not in dispute. As regards gratuity, the same has been withheld in view of the provisions contained in the Civil Service Regulations as referred in the counter affidavit of the State filed before the writ Court.
5. The contention of the State counsel is that the impugned judgment has been rendered by the learned Single Judge relying upon a Division Bench judgment of this Court rendered on 05.10.2013 in Civil Misc. Writ Petition No. 12574 of 2013 (Narendra Kumar Singh vs. State State of U.P. and Others), whereas, the law on the subject has been clarified and declared by a Full Bench of this Court on 08.05.2019 in a bunch of special appeals leading special appeal being Special Appeal No. 40 of 2017 (Shivagopal vs. State of U.P. and 4 Others). The impugned judgment is in the teeth of the Full Bench decision. He also submitted that in paragraph 10 of the counter the State had specifically relied on this Full Bench decision yet without considering the same, the learned Single Judge has allowed the writ petition relying on the Division Bench judgment in the Narendra Kumar Singh (supra) ignoring the law of precedents, according to which it is the Full Bench decision in Shivagopal (supra) which was to be applied and followed and not a Division Bench judgment in Narendra Kumar Singh (supra) which was contrary.
6. On being confronted, learned counsel for the respondent vehemently submitted that various Single Judge Benches have taken into consideration the Full Bench decision in Shivagopal (supra) and thereafter have granted relief even in cases where criminal proceedings are pending. He placed before us two such decisions; one has been rendered on 17.08.2022 in Writ A No. 2461 of 2015 (Brajendra Kumar Singh vs. State of U.P. and Others) wherein the learned Single Judge has relied upon another Single Judge Bench judgment dated 21.01.2020 rendered in Writ A No. 27391 of 2012 (Udai Narain Ojha vs. State of U.P. and Others). The other judgment relied upon is the one rendered in Udai Narain Ojha (supra).
7. Learned counsel for the respondent has also relied upon a decision of Hon'ble the Supreme Court in the case of Union Bank of India and Others vs. C.G. Ajay Babu and another; AIR 2018 SC 3792.
8. We have considered the aforesaid judgments relied by the respondent's counsel and also the Full Bench decision in Shivagopal (supra).
9. As regards decision of Hon'ble the Supreme Court in the case of C.G. Ajay Babu (supra) the same is based on the provisions of Payment of Gratuity Act, 1972 and the issue involved therein was very different from the one which is involved herein. The question of entitlement to pension and gratuity during pendency of criminal proceedings before a Court of criminal jurisdiction was not involved before the Supreme Court in the said case. Pension and gratuity are not payable to State Government employees under the Payment of Gratuity Act, 1972, but, the same are payable under the provisions of U.P. Retirement Benefits Rules, 1961 read with relevant extracts of Civil Service Regulations. The decision in C.G. Ajay Babu (supra), therefore, does not help the respondent at all and it does not apply to the case at hand.
10. As regards decision of a learned Single Judge Bench in the case of Brajendra Kumar Singh (supra), the said writ petition was allowed only with reference to judgment rendered by another Single Judge Bench in Udai Narain Ojha (supra), therefore, we have considered the judgment in Udai Narain Ojha (supra) also. We find that in Udai Narain Ojha case the order under challenge was dated 28.01.2012 by which the amount payable to the petitioner of the said petition as gratuity had been withheld and in the counter affidavit it was disclosed that a criminal case under Section 409 IPC was pending investigation where petitioner was alleged to have embezzled certain amount. In the counter affidavit in the said petition it was disclosed that a charge-sheet had been filed against the said petitioner on 20.04.2013. Firstly at the time of withholding of gratuity only investigation was pending and charge-sheet was filed only subsequently, thus, on the date of withholding of gratuity no criminal proceedings were pending. Moreover, the writ Court took into consideration the fact that the incident which led to the lodging of FIR on 19.09.2007 was obviously prior to the said date i.e. 19.09.2007, and the period of four years referred in Article 351-A of the Civil Service Regulations expired sometime in September, 2011, whereas, the charge-sheet was filed thereafter on 20.04.2013. Thus, judicial proceedings had not been initiated in accordance with Regulation 351-A, therefore, petitioner of the said petition should not be allowed to suffer for this lapse as apparently according to the learned Single Judge in the said case judicial proceedings had been instituted against the petitioner in respect of an event which took place more than four years before the date of retirement and withholding of gratuity was clearly in the teeth of Regulation 351-A of the Civil Service Regulations and, therefore, impermissible in law. In this context the learned Single Judge had referred to certain extracts of the judgment of the Full Bench in Shivagopal (supra). Therefore, the facts of the said case are very different from the facts of the case of the respondent in the writ petition and the special appeal before us. We have gone through the writ petition and the rejoinder affidavit of the respondent and we do not find any such plea similar to Udain Narain Ojha. This apart, we have also noticed that the writ Court in Udai Narain Ojha (supra) referred to certain extracts of the Full Bench decision in Shivagopal (supra) where Article 351-A had been dealt with, but, the extracts which are relevant for our purposes have not been referred. In the said case, as already stated, the Court was persuaded by the fact that the withholding of gratuity beyond the period of four years as referred in Regulations 351-A of the Civil Service Regulations was contrary to law which is not the case herein. Moreover, as already stated, relevant extracts of Shivagopal (supra) have not been referred therein, therefore, the judgment in Udai Narain Ojha (supra) also does not help the respondent.
11. We may now refer to Full Bench decision in Shivagopal (supra). We have gone through the said judgment wherein the Full Bench after considering all the provisions of law including Regulation 919-A of the Civil Service Regulations has ultimately opined that a Government employee is not entitled to death-cum-retiral gratuity until conclusion of the departmental proceedings/enquiry by the Administrative Tribunal or judicial proceedings which include both civil and criminal. It has further opined that the law laid down by the Division Bench in State of U.P. and others vs. Jai Prakash; 2014 (1) ADJ 207 is the correct law whereas all other decisions said to be in conflict with it are actually not in conflict with; rather do not address the legal position with which the Full Bench was concerned and those decisions have been rendered on equity without reference to Regulation 919-A of the Civil Service Regulations and as such would not apply in the matter of payment of gratuity to the Government employees. The legal position has thus been clarified and declared by the Full Bench as aforesaid.
12. In para 10 of the counter affidavit filed in this case before the writ Court specific reliance was placed by the State on the said Full Bench decision, in spite of it, the writ Court has not even referred to the said Full Bench decision much less considered it. The writ Court was persuaded by another Division Bench judgment in the case of Narendra Kumar Singh (supra) which is no longer a good law in view of the subsequent decision of Full Bench in Shivagopal (supra).
13. In these circumstances, the judgment of the writ Court is perverse being contrary to the Full Bench decision. The law of precedent is very clear that a decision rendered by a Larger Bench prevails upon any judgment on the subject rendered by a Bench of lesser strength, but, this has not been kept in mind by the writ Court. The judgment rendered by a Single Judge Bench in the case of Brajendra Kumar Singh (supra) is also not a binding precedent for a Single Judge Bench in view of the law laid down by the Full Bench.
14. We, therefore, have no hesitation in quashing the impugned judgment and order dated 26.02.2023 passed by writ court in Writ A No. 6422 of 2021. The same is hereby quashed.
15. As a consequence of it contempt proceedings initiated on account of non-compliance of the impugned judgment shall stand dropped. This judgment shall be placed before the Contempt Court in Contempt Application (Civil) No. 2459 of 2023 for its information by the Registry.
16. The writ petition shall now be listed before the writ Court for consideration afresh keeping in mind the observations made hereinabove.
17. The special appeal is allowed.
[Manish Kumar, J.] [Rajan Roy, J.]
Order Date :- 13.12.2023
Santosh/-
