Allahabad High Court
Virendra Kumar vs State Of U.P. And 6 Others on 14 December, 2023
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:236864
Court No. - 34
Case :- WRIT - A No. - 16807 of 2023
Petitioner :- Virendra Kumar
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Atipriya Gautam,Devesh Mishra,Madhaw Pandey,Sr. Advocate
Counsel for Respondent :- C.S.C.
Hon'ble Ajit Kumar,J.
1. Heard Sri Devesh Mishra, learned counsel for the petitioner and learned standing Counsel for the State-respondents.
2. Learned Standing Counsel has obtained instructions in the matter and is placed before the Court which is taken on record.
3. As per instructions, a criminal case being Case Crime No.210 of 2020 under Sections 498-A, 323, 506 IPC and Section 3/4 of the Dowry Prohibition Act has been instituted on account of a matrimonial dispute between his son and daughter-in-law and since now the charge-sheet has been submitted, therefore, petitioner's post retirement dues have not been withheld.
4. It is argued on behalf of the petitioner that implication in a criminal case arising out of a matrimonial dispute on account of a very conduct of an employee while in service, should not be a ground to withhold post retirement dues. He submits that there could have been some justification even in case there was any offence committed in public life while discharging his duties in public employment but since it is a sheer matrimonial dispute between son and daughter-in law-petitioner, petitioner has been falsely implicated and now he is facing trial. So the respondents are not justified, therefore, in withholding post retirement dues of the petitioner who has retired as Sub Inspector in Civil Police on 30.06.2023.
5. Counsel for the petitioner submits that no departmental proceedings have been initiated against the petitioner nor benefit relating to any such matter of criminal law, nor is there any permission ever accorded for initiating such proceedings under Article 351-A of the Civil Police Regulations. He, therefore, submits that in view of the judgment of this Court in the case of Devendra Kumar Sharma v. State of UP & ors passed in Writ-A No.15093 of 2020 on decided on 08.10.2023, petitioner is entitled to post reitrement dues along with interest for such illegal withholding of post retirement dues.
6. Further, reliance has also been placed upon judgment of Supreme Court in the case of Hira Lal v. State of Bihar & ors; 2020 (4) SCC 346 in which vide paragraph 14, the Court laid down the ratio of law discussing various judgments in the previous paragraphs and then finally allowed the payment of such dues. Paragraphs 13.6, 13.7, 14 & 15 which are reproduced hereunder:
"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 v. Haresh C. Banerjee and Ors.
13.7. The Division Bench of the Patna High Court in the impugned judgment has relied solely on the earlier decision of a co-ordinate bench of the Patna High Court in Vijay Kumar Mishra v. State of Bihar MANU/BH/0496/2016MANU/BH/0496/2016 : 2017 (1) PLJR 575 to deny the reliefs sought by the Appellant. Pertinently, the judgment in Vijay Kumar Mishra was overruled by a Full Bench of the Patna High Court in Arvind Kumar Singh v. State of Bihar and Ors.
14. In view of the above, we hold that the Respondent-State was unjustified in withholding 10% pension of the Appellant under administrative Circulars dated 22.08.1974 and 31.10.1974, and Government Resolution No. 3104 dated 31.07.1980 after the Appellant had superannuated on 31.03.2008.
We direct that 10% of the pension amount which had been withheld after superannuation on 31.03.2008 till 19.07.2012 is liable to be paid to the Appellant within a period of 12 weeks from the date of this Judgment.
After Rule 43(c) was inserted in the Bihar Pension Rules and brought into force on 19.07.2012, the State is empowered to legally withhold 10% of the pension amount of the Appellant, till the criminal proceedings in R.C. Case No. 48A/1996 are concluded. Consequently, the State will deduct 10% from the pension amount w.e.f. 19.07.2012 subject to the outcome of the criminal proceedings.
15. With respect to withholding of the full amount of gratuity, we find that as per Rule 27 of the Bihar Pension Rules, "pension" includes "gratuity". With the insertion of Rule 43 (c) in the statute book w.e.f. 19.07.2012, it is clear that gratuity also could not have been withheld under administrative circulars dated 22.08.1974 and 31.10.1974, and Government Resolution No. 3104 dated 31.07.1980."
7. Though the matter arose from the State of Bihar and involved interpretation of post retirement rules but the broad principles that have been discussed in the judgment would apply equally in the matter of post retirement dues, it is argued, in respect of all the States where the employees retire from public employment and deserve such post retirement dues under the service conditions and rules.
8. In view of the above, matter is remitted to the respondent concerned to accord due consideration of the claim of the petitioner in light of the law laid down by this Court in the case of Devendra Sharma (supra) and pass appropriate orders within a period of two months of production of certified copy of this order and if there is otherwise no technical difficulty in payment, payment of entire post retirement dues shall also be ensured based upon such decision within further period of thirty days.
9. With these observations and directions, petition stands disposed of.
Order Date :- 14.12.2023
P Kesari
