Allahabad High Court
Ram Sajeevan Verma vs State Of U.P. Thru. Prin. Secy. ... on 21 February, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 5
Case :- WRIT - A No. - 6422 of 2021
Petitioner :- Ram Sajeevan Verma
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko.And Ors.
Counsel for Petitioner :- Jai Ram Singh Yadav,Arun Kumar Srivastava
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Chaudhary,J.
1. Heard learned counsel for the parties and perused the record.
2. The petitioner has approached this Court challenging the order dated 27.11.2019 whereby he is provided provisional pension only after his retirement on account of pendency of criminal case.
3. Learned counsel for the petitioner submits that there is no allegation of loss to the Government by the said criminal case. He has further prayed for a direction to the respondent authorities to pay pension, gratuity, provident fund, leave encashment including other retiral dues of petitioner along with interest.
4. It is contended by learned counsel for the petitioner that during pendency of a criminal case, retiral benefits and pension amount cannot be withheld and this issue has been considered and decided by this Court in Writ Petition No.25554 of 2010 (Lalta Prasad Yadav Vs. State of U.P. & 4 Ors.) decided on 15.5.2013, Writ Petition No.26972 of 2013 (Santosh Kumar Singh Vs. State of U.P. & 4 Ors.) decided on 14.05.2013, Writ Petition No. 10099 of 2013, HC 11AP Mishir Lal Vs. The state of U.P. and others, decided on 26.02.2013 and Writ Petition No. 17141 of 2012, HC 122 AP Deo Narain Singh Vs. State of U.P. and others, decided on 20.07.2012. It is also submitted that one of the judgment of learned Single Judge was also assailed before a Division Bench in Special Appeal No. 84 (Defective) of 2013, which has also been dismissed.
5. Learned Standing Counsel has placed reliance on a Division Bench judgment of this Court in State of UP and 2 ors vs. Jai Prakash Special Appeal Defective No.1278 of 2013 decided on 17.12.2013. The Division Bench relied on Regulation 351-A of the Civil Services Regulation, which empowers the State Government to recover from the pension the amount of loss found in judicial or departmental proceedings, to have been sustained by the Government by the negligence or fraud during his service. In the said case the Division Bench further found that Regulations 351, 351-A and 351-AA of the Civil Services Regulations operate in different fields. Regulation 351-AA specifically provides that where a departmental or judicial proceeding or any enquiry by the Administrative Tribunal is pending on the date of retirement, a provisional pension under Regulation 919-A may be sanctioned. Regulation 919-A (3) contains a specific prohibition on the payment of Death-Cum-Retirement Gratuity to a government servant until the conclusion of departmental or judicial proceeding and the issue of final orders thereon.
6. However, learned counsel for the petitioner has placed reliance on a subsequent Division Bench judgment in Special Appeal Defective No.416 of 2014 (State of UP and 3 ors vs. Faini Singh) decided on 25.4.2014, by which the Division Bench has dismissed the appeal filed by the State Government. The relevant para-21 of the judgment is reproduced as below:-
"21. We may point out that a mere pendency of any judicial proceeding cannot be a ground to exercise the powers under Article 351AA read with Regulation 919A for withholding the retiral dues. The nature of allegations and the gravity of charge has to be taken into consideration by the competent authority before making an order to withhold the retiral dues. In case the pendency of any judicial proceeding is held to be sufficient, a minor offence or even a parking ticket may be a ground to withhold the pension of a retired employee. Such a situation is not contemplated under the powers conferred on the competent authority under the Civil Services Regulations."
7. Learned counsel for the petitioner has further relied upon a Division Bench judgment in Narendra Kumar Singh vs. State of UP and others 2013 (9) ADJ 199 (DB) decided on 5.10.2013. The relevant paras of the judgment are reproduced as below:-
"9. In the case of D.S.Nakara Vs. Union of India, reported in (1983) 1 SCC, 305, the Apex Court has observed as under :
"From the discussion three things emerge : (1) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch....."
10. The ratio laid down in these cases had been subsequently followed by the Apex Court in series of its decisions including the case of Secretary, O.N.G.C. Limited Vs. V.U.Warrier, reported in 2005 (5) SCC, 245.
11. Division Bench of this Court in the case of Mahesh Bal Bhardwaj Vs. U.P. Co-operative Federation Ltd. and another (Supra) has held that gratuity and other post retiral dues, which the petitioner is otherwise entitled under the Rules, could not have been withheld either on the pretext that criminal proceedings were pending against the petitioner or for the reason that on the outcome of the criminal trial, some more punishment was intended to be awarded.
12. Learned Single Judge of this Court in the case of Radhey Shyam Shukla Vs. State of U.P. and another (Supra) has also taken the similar view and has held that mere pendency of the criminal proceedings would not authorize withholding of gratuity.
13. Division Bench of this Court in the case of Lal Sharan Vs. State of U.P. and others (Supra) has held that mere intention to obtain sanction for initiating disciplinary enquiry could not be basis for withholding the post retiral dues unless sanctioned, granted and the disciplinary proceedings started.
14. Apex Court in the case of State of Punjab and another Vs. Iqbal Singh, (Supra) has further held that since the cut of the pension and the gratuity adversely affects the retired employee as such order can not be passed without giving reasonable opportunity of making his defence.
15. We have also perused the Government Order dated 28.10.1980, annexure-CA-1 to the counter affidavit, which has been made basis for withholding the part of the pension and allowing the interim pension. This Government Order provides the payment of interim pension where the departmental proceeding are pending. None of the circular, Government Order or any provision has been referred before us, which provides that where no departmental proceeding is pending, still the pension can be withheld."
8. It is also not the case of respondents that in the criminal case, there is any allegation of loss to the Government and there is recovery to be made from the petitioner, which is the only exception recognized by this Court in the above mentioned authorities where final pension etc. may not be paid and respondents may withhold the same.
9. For the reason stated therein, and in view of the above authorities, the writ petition is allowed and the impugned order dated 27.11.2019 is set aside. The respondents are directed to pay retiral benefits and final pension along with interest at the rate of 6% p.a. to petitioner forthwith within a period of two months from the date of production of a certified copy of this order.
(Vivek Chaudhary,J.)
Order Date :- 21.2.2023
Arjun/-
