Harnand Singh vs The State Of U.P. And Another
2023 Latest Caselaw 1089 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 20355 of 2022
 

 
Petitioner :- Harnand Singh
 
Respondent :- The State Of U.P. And Another
 
Counsel for Petitioner :- Kailash Prakash Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Neeraj Tiwari,J.

Petitioner is aggrieved by withholding of his gratuity on account of pendency of a criminal case. Various grounds have been submitted in order to contend that petitioner has been falsely implicated in the criminal case, and that withholding of his gratuity on that count is impermissible. Learned counsel for the petitioner, moreover submits that mere pendency of criminal case otherwise would not be sufficient to withhold the amount of gratuity.

Learned Standing Counsel submits that the action of respondents is as per law.

Relevant provisions of law relating to withholding of gratuity as well as limits of exercise of such jurisdiction has been a subject matter of consideration by this Court in Service Single No. 12338 of 2017 (Thakur Singh Vs. State of U.P. Thru Prin. Secy. Deptt. of Home Civil Sectt. & Ors.). After considering the division Bench judgement of this Court in Special Appeal Defective No. 416 of 2014, State of U.P. and others Vs. Faini Singh, following observations were made:-

"The issue as to whether pension and gratuity could be withheld on account of pendency of judicial proceedings has been a subject matter of consideration in large number of cases. Judgments have been passed taking either views in the matter. It seems that much of divergence of opinion has resulted on account of incorrect quotation of provisions itself in different books. Article 351-AA and 919-A(3) are reproduced:-

"351-AA. In the case of a Government Servant who retires on attaining the age of superannuation or otherwise and against whom any departmental or Judicial proceedings or any enquiry by Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement a provisional pension as provided in Regulation 919-A may be sanctioned.

919-A(3). No death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings or the enquiry by the Administrative Tribunal and issue of final orders thereon."

In some of the publication sub-rule (3) of Article 919-A has been wrongly quoted and reference to 'judicial proceedings' have been omitted. This aspect, however, has been noticed lately by this Court in Surendra Pal vs. State of U.P. and others delivered in Writ Petition No.296 (SS) of 2015. In a review petition filed in the matter, pursuant to the liberty granted to the petitioner in Special Appeal No.62 of 2016, the provisions have been specifically noticed. The order passed in review petition is extracted hereinafter:-

"This is an application for review of the judgment dated 17.12.2015 passed in Writ Petition No. 296(S/S) of 2015.

The aforesaid writ petition was filed by the petitioner being aggrieved against his gratuity being withheld on account of pendency of judicial proceedings.

It was contended that there was no provision under which gratuity could be withheld.

This Court by referring Regulation 919-A, the earlier judgments on the subject, opined that the said regulation contained a provision for withholding of gratuity during pendency of departmental or judicial proceedings.

The petitioner had challenged the above judgment by means of Special Appeal No. 62 of 2016, wherein, it was contended that the words ''judicial proceedings' do not figure in Regulation 919-A, which has been erroneously quoted in the judgment of the Single Judge Bench. Consequently an erroneous judgment has been rendered. The Appellate Court held that the difference in wording of Regulation 919-A should be pointed out before the Single Judge. It is in these circumstances this review application has been filed.

The only ground pressed before the Court is that the word ''judicial proceeding' does not figure in Regulation 919-A.

Shri Rajeev Singh, learned counsel appearing for the applicant placed before the Court some of the books which do not contain these words.

Regulation 919-A was inserted in the Civil Service Regulations vide notification dated 9th January, 1983 published in the Gazette on 11th June, 1983 by way of U.P. Civil Service (Tenth Amendment) Regulations, 1983, which reads as under:-

"Published in the U.P. Gazette, Part IA, dated June 11, 1983

PERSONNEL DEPARTMENT

Lucknow, the 9th January, 1983

No. G-3-79/X-909-79.- In exercise of the powers under the proviso to Article 309 of the Constitution, the Governor is pleased to make the following Regulations with a view to amending the Civil Service Regulations as adopted in their application to Uttar Pradesh:

1. Short tile and commencement- (1) These Regulations may be called the Uttar Pradesh Civil Service (Tenth Amendment) Regulations, 1983.

(2) The shall be deemed to have come into force with effect from October 28, 1980.

2. Insertion of new Articles 351-AA and 919-A.-In the Uttar Pradesh Civil Service Regulations:-

(i) After the existing Article 351-A, the following new Article shall be inserted, namely:

"351AA. In the case of a Government Servant who retires on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings or an enquiry by Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement, a provisional pension as provided in Article 919-A may be sanctioned"; and

(ii) After Article 919, the following new Article shall be inserted, namely:-

"919-A. (1) In cases referred to in Article 351, the Head of Department shall authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant or if he was under suspension on the date of retirement, up to the date immediately preceding the date on which he was placed under suspension.

(2) The provisional pension shall be authorised for the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceeding or the enquiry by the Administrative Tribunal, as the case may be, final orders are passed by the competent authority.

(3) No death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings or the enquiry by the Administrative Tribunal and issue of final orders thereon.

(4) Payment of provisional pension made under clause (1) above, shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of the proceedings or in unity referred to in clause (3) but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period."

The above quoted provision clearly mentions the word ''departmental or judicial proceeding', therefore, the basis for seeking review is non existent. The publishers of the books do not appear to have taken note of this fact. Thus, the only ground pressed by Shri Singh is misplaced.

As no other ground has been pressed the review application is rejected."

Withholding of pension/gratuity is not just to make good the financial loss caused to the state but can be resorted to in view of regulation 351 of Civil Service Regulations. Regulation 351 provides that payment of pension is subject to future good conduct and is extracted hereinafter:-

"351. Future good conduct is an implied condition of every grant of a pension. The State Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner be convicted of serious crime or be guilty of grave misconduct. The decision of the State Government on any question of withholding or withdrawing the whole or any part of pension under this regulation shall be final and conclusive."

In view of the provisions contained in regulation 351, 351-AA and 919-A(3) as well as in view of the law laid down in Surendra Pal (supra), the withholding of gratuity on account of pendency of judicial proceedings cannot be faulted.

Learned counsel for the petitioner nevertheless places reliance upon a division bench decision of this Court in Special Appeal Defective No.416 of 2014, State of U.P. and others vs. Faini Singh, to contend that petitioner's grievance is liable to have been examined in light of the observations made therein. It is submitted that withholding of gratuity is not automatic and application of mind is warranted at the hands of the disciplinary authority to the seriousness of charges levelled etc.

There is substance in the contention raised by the petitioner inasmuch as mere existence of authority under regulation 919-A(3) would not mean that in any and every case gratuity is to be withheld as a matter of routine. Existence of power and its justifiable exercise are two separate aspects. The authority has to apply its mind to the facts of the case, seriousness of offence and the role assigned to the employee concerned [see: Faini Singh's case (supra)]. In an appropriate case, a minor offence may not constitute justifiable ground for withholding of gratuity or pension under the regulations.

In such circumstances, the writ petition is disposed of permitting the petitioner to approach the authority concerned for examining the aspects relating to seriousness of offence and the role assigned to him, and to consider petitioner's prayer for release of gratuity/pension etc, alongwith certified copy of this order, within a period of two weeks from today. In case petitioner does so, the authority concerned shall examine the same, in accordance with law, by means of a reasoned speaking order, within a further period of three months thereafter."

In view of the above, this petition stands disposed off, permitting the petitioner to approach respondent no. 2, along with certified copy of this order, raising his grievance, in the matter relating to withholding of petitioner's gratuity. The Disciplinary Authority shall proceed to examine the petitioner's claim for release of gratuity, keeping in view the observations made above. The required consideration shall be made within a period of four months from the date of presentation of certified copy of this order.

Order Date :- 11.1.2023

Arvind