Ramesh Chandra Joshi vs State Of Uttarakhand And Others
2021 Latest Caselaw 4603 UK

           HIGH COURT OF UTTARAKHAND
                   AT NAINITAL
              Writ Petition (S/S) No. 876 of 2021
Ramesh Chandra Joshi                                           ...    Petitioner
                                       Vs.
State of Uttarakhand and others                                ... Respondents
Advocates :   Mr. Sanjay Bhatt, Advocate, for the petitioner
              Mrs. Anjali Bhargava, Addl. CSC, for the State


Hon'ble Sharad Kumar Sharma, J.

Brief factual backdrops of the writ petition are, that the petitioner, after having been selected as a Village Development Officer, was accordingly recruited into the services of the respondent on 27th March 1985; and he remained thus posted so in the said capacity, till the registration of a complaint against him on 12th February 2014, by one Mr. Kavindra Chand before the District Magistrate, Pithoragarh, in relation to certain set of alleged irregularities which were said to have been committed by the petitioner in the implementation of the work under the MGNREGA Scheme.

2. It is based on the said complaint it was said by respondents, that a preliminary enquiry was ordered to be conducted by the District Magistrate, through District Development Officer, Pithoragarh; hence a Show Cause Notice, was issued to the petitioner and ultimately an FIR was also got registered against the petitioner on 17th October 2015, as an FIR No. 2 of 2015, for his alleged involvement in commission of the offences, complained of to be falling under Sections 420, 467, 468, 471 of the IPC.

3. As a consequence of the registration of the said FIR, the petitioner was taken into custody on 28th July 2016, and thereafter, later on he was released on bail on 10th August 2016.

After his release on bail, he had submitted his joining and simultaneously, as far as the investigation, which was emanating from the FIR No. 2 of 2015 is concerned, it is contended that a Charge Sheet in a criminal case was submitted, which was to put to challenge by the petitioner in a C482 Application No. 1717 of 2017, Ramesh Chandra Joshi Vs. State of Uttarakhand and Another, in which, the further proceedings of the criminal trial was kept in abeyance.

4. It is that during the intervening period of these pending criminal and other proceedings, the petitioner attained the age of superannuation on 28th February 2021. The petitioner has preferred this writ petition, contending thereof, that after the attainment of the age of superannuation, he would be entitled for the payment of gratuity, commutation, leave encashment and regular pension with statutory interests which would be payable to him on the withhold retiral benefits.

5. When this writ petition was preferred, the petitioner in para 19 of the writ petition, had specifically pleaded that so far as the initiation of the proceedings which was emanating from the FIR, as referred to above, which on the submission of the charge sheet was instituted after taking cognizance by way of Criminal Case No. 1443 of 2017, in which, the summoning order had been issued to the petitioner, it is pleaded by the petitioner that in fact, it had been a proceedings in derogation to the provisions contained under Section 197 of the Code of Criminal Procedure, and the cognizance thus taken to the criminal proceedings, could not have been taken against the petitioner.

6. Learned counsel for the petitioner submits in his arguments that merely because of the fact, that a criminal trial is pending

consideration against the petitioner, though proceedings of which had been stayed in C482 Application, the same itself would not, in any manner, create any impediment in payment of the retiral benefits which the petitioner would be entitled to, as prayed for by the petitioner in the present writ petition, which are payable towards the various heads viz gratuity, commutation, leave encashment and regular pension along with the statutory interests, payable on it.

7. Respondents were noticed; they have filed their counter affidavit and particularly, if the counter affidavits, which has been filed by respondent Nos. 2 & 3, are taken into consideration, in fact, in para 10 of the said counter affidavit, there is no specific denial to the pleadings which has been raised by the petitioner in para 19 of the writ petition, with regard to the non compliance of the provisions contained under Section 197 of the Code of Criminal Procedure.

8. Similarly, if the counter affidavit which has been preferred by respondent No. 4, is also taken into consideration, and that too, the pleadings raised in para 4 of the said counter affidavit, the respondent No. 4, had not specifically denied the contents of the pleadings which has been raised by the petitioner in para 19 of the writ petition, as it has been answered, "that para 2 to 20 needs no comments".

9. But, simultaneously, respondent No. 4, in para 3 of the counter affidavit had also submitted that, in fact, it is during the pendency of these proceedings, that the Block Development Officer, Ramgarh Nainital, had also issued an appropriate direction to the District Development Officer, Nainital; for the purposes of remittance of certain dues which have been referred

to in his communication made vide Letter/Memo No. 152 dated 31st May 2021; hence it is contended by the learned counsel for the respondent, that in fact due to the directions which were issued for the remittance of the amount as contained in the communication dated 31st May 2021, the petitioner's grievance already stands redressed.

10. This contention of the learned counsel for respondent No. 4, has been vehemently refuted by the petitioner's counsel, in the rejoinder affidavit, thus preferred by him in response to the counter affidavit of respondent No. 4; so far it related to the remittance of retiral benefits and particularly, in para 3 to the rejoinder affidavit, the petitioner had specifically submitted, that the payments as detailed by respondent No. 4, in his correspondence dated 31.05.2021, referred to as 'CA1', to the counter affidavit it relates to the payment under the other heads, but they are rather not in relation to the payment of retiral benefits, as it has been claimed by the petitioner in the present writ petition. Hence, he submits, that the alleged compliance of the order dated 31st May 2021, may not be read as to be a complete compliance made in relation to the relief sought by the petitioner in the present writ petition.

11. The learned counsel for the petitioner submits, that so far as the curtailment of the retiral benefits i.e. gratuity, commutation, leave encashment and regular pension, along with interest payable on it are concerned, that could not have been curtailed by the respondents merely on the pretext that there are criminal proceedings pending consideration against the petitioner to which the cognizance had already been taken by the competent trial Court; although the proceedings of the same has been stayed by this Court in C482 Application, already referred above.

12. In support of his contention, apart from the fact that the aforesaid criminal proceedings, would be a nonest proceedings in the absence of there being a prior permission having being granted under Section 197 of the Code of Criminal Procedure, the petitioner in the rejoinder affidavit which has been filed to the counter affidavit of respondent Nos. 2 & 3, had made a reference to a judgement dated 29.07.2020, of the Division Bench of this Court as rendered in Writ Petition (S/B) No. 5 of 2020, Lalit Mohan Arya Vs. State of Uttarakhand and others, where almost an identical relief was sought by the petitioner therein for the payment of retiral benefits under the head of gratuity, commutation and other retiral dues and in the said case too, the petitioner therein, was facing a trial for the alleged commission of the offences under Sections 406 and 409 of the CrPC, which was registered against him in the said writ petition in pursuance to the FIR dated 13th December 2011. But the Division Bench of this Court had observed in para 5, that merely because of the pendency of the criminal proceedings which were emanating from the aforesaid FIR, in the absence of there being a sanction under Section 197 of Cr.PC, to prosecute the petitioner, it will not, in any manner, create an embargo in the remittance of the retiral dues, as it was referred in the prayer clause of the writ petition, which was preferred by the petitioner as extracted in the judgement of the Division Bench dated 29th July 2020. The logic, which has been assigned by the Division Bench for the purposes of remittance of the retiral benefits, which particularly, were that as contained in para 6 and 7 of the said judgement. But, the logic given by the Division Bench in para 6 and 7, cannot be read in isolation to the observations made in para 5 with regard to the impact of Section 197 of the Code of Criminal Procedure and the absence of permission to prosecute a public servant, hence

paragraphs 5, 6 and 7 of the Division Bench are extracted hereunder:-

"5. The admitted fact is that pursuant to the aforesaid FIR, the department did not even give any sanction to prosecute the petitioner. Now, the petitioner stood retired after attaining the age of compulsory retirement. It is also undisputed that pursuant to the said FIR, petitioner has been granted all other service benefits. But, he has been denied his retiral dues. Though the liability has been admitted by the learned counsel for the respondents, but denial is only on the ground that criminal proceedings are pending against the petitioner.

6. Hon'ble Apex Court has observed in a catena of cases that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that pension is a social welfare measure rendering socioeconomic justice to those who in the hay-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch.

7. Even otherwise, an employee earns pension by the dint of long and continuous service and the same cannot be denied without the authority of law and without following the due process of law. Right to receive pension has been held to be the right to property protected under Article 300A of the Constitution even after the repeal of Article 31(1) by the 42nd constitutional amendment [State of West Bengal vs. Haresh C.Banarjee and others; (2006) 7 SCC 65]."

13. Learned counsel for the petitioner has further submitted that almost an identical issue pertaining to entitlement of the retiral benefits, as to be a property falling within the ambit of Article 300A of the Constitution of India was considered by yet another Division Bench of this Court, which was rendered in Writ Petition (S/B) No. 511 of 2018, P.K. Ahluvalia Vs. State of Uttarakhand, as decided by the Division Bench vide its judgment dated 8th January 2020, this Court is of the view, that in the light of the aforesaid two judgments of the Division Bench and particularly the earlier judgement of the Division Bench dated 29.07.2020, where a writ of mandamus was issued for the payment of gratuity, commutation and other retiral benefits it were based on the ground that since there was no prior sanction granted under Section 197 CrPC, it happens to be a situation akin

to one involved consideration in the present writ petition too, because the petitioner's specific case pleaded in para 19 of the Wit Petition about there being no prior sanction having being granted under Section 197 CrPC, in fact, it is a fact which has not been denied by any of the respondents to the present writ petition, in their respective counter affidavits filed on the record.

14. In that eventuality, this Court too is of the view that merely because of the pendency of the criminal proceedings, though it has been stayed by the coordinate Bench in C482 Application, petitioner could not be deprived of the benefit of the retiral benefits, as it has been prayed for by the petitioner in the present writ petition and the alleged compliance dated 31.05.2021 said to have been made by the respondent in Annexure 1 to the counter affidavit filed by respondent No. 4, cannot be said to be an exact and complete compliance in relation to the nature of relief which has been sought by the petitioner in the present writ petition.

15. In that eventuality, this writ petition, for the reasons already given aforesaid, I am of the view, that since the issue stands covered by the ratio laid down by the Division Bench in the judgment dated 29.07.2020 and hence a writ of mandamus is issued to the respondents to remit the retiral benefits as claimed by the petitioner in the present writ petition along with the statutory interest payable on the withheld gratuity amount, under Section 7(3)A of the Payment of Gratuity Act.

16. The writ petition stands allowed with an exception; that the petitioner would not be entitled for the leave encashment for the period from 28.07.2016 to 11.08.2016 i.e. the period during which he was in a judicial custody, as a consequence of the registration of the criminal proceedings against him which is a

fact pleaded in para 15 in the counter affidavit of respondent Nos. 2 & 3.

17. Hence, the writ petition stands allowed to the aforesaid extent, in exception to the leave encashment for the aforesaid period of detention.

(Sharad Kumar Sharma, J.) 17.11.2021 Mahinder/