Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : ...the Order Withholding Gratuity Until Conclusion Of Criminal Trial Was Correct And In Accordance With Provisions Of Regulation 351-AA Read With....
JUDGEMENT TITLE : State Of U.P. And 2 Ors. Vs. Jai Prakash. On 17/12/2013 By Allahabad High Court
CASE NO : SPECIAL APPEAL DEFECTIVE NO. 1278 OF 2013.
CORAM : Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Sanjay Misra,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Chief Justice's Court AFR

Case :- SPECIAL APPEAL DEFECTIVE No. - 1278 Of 2013

Appellant :- State Of U.P. And 2 Ors.
Respondent :- Jai Prakash
Counsel For Appellant :- Pankaj Saxena, Sc
Counsel For Respondent :- R.K. Dwivedi

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Sanjay Misra,J.

The Special Appeal Arises From A Judgement Of The Learned Single Judge By Which An Order Passed By The Superintendent Of Police, Etah On 22 July 2010 Withholding The Payment Of Gratuity To The Respondent Has Been Set Aside And A Direction Has Been Issued To The Appellants Herein To Release The Gratuity Together With Statutory Interest.
2. The Respondent Was Appointed On 5 February 1969 As A Fireman In The Fire Services Of The State And Was Regularised In Service. He Attained The Age Of Superannuation On 30 June 2010. On 22 July 2010, An Order Was Passed By The Superintendent Of Police, Etah Allowing To The Respondent A Provisional Pension Of Rs.9025/- Per Month. The Payment Of Gratuity Was However Withdrawn On The Ground Of The Pendency Of A Criminal Case Which Has Been Registered Under Section 498-A Of The Penal Code Read With Section 304-B And Section 3/4 Of The Dowry Prohibition Act. There Is No Dispute About The Factual Position That An FIR Was Registered On 3 May 2009 Against The Respondent And A Charge Sheet Had Been Filed Before The Competent Court On 11 December 2009.
3. The Learned Single Judge Held That The Proceedings Which Are Pending Before The Competent Criminal Court Are In Reference To The Dowry Prohibition Act And Not In Regard To Any Loss Having Been Caused To The Government And Even A Final Judgement In The Criminal Trial Would Not Result In Any Quantification Of An Alleged Loss Sustained By The Government. In The View Of The Learned Single Judge, The Power Under Regulation 351 Of The Civil Service Regulations Could Be Exercised By The State Government For Withholding Or Withdrawing A Pension Or A Part Thereof, If A Pensioner Is Convicted Of A Serious Crime Or Is Guilty Of Grave Misconduct Whereas In Regulation 351-A, The State Government Is Empowered 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 Present Case, It Was Held That Mere Pendency Of A Criminal Case Could Not Justify The Withholding Of Gratuity.
4. The Learned Counsel Appearing On Behalf Of The Appellants Has Submitted That Regulations 351, 351-A And 351-AA Operate In Different Fields. Regulation 351-AA, It Was Submitted 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 Proceedings And The Issue Of Final Orders Thereon. Hence, It Was Submitted That In View Of A Specific Prohibition Contained In Regulation 351-AA And Regulation 919-A (3), Gratuity Could Not Have Been Paid During The Pendency Of A Criminal Case But As Required By Law, A Provisional Pension Has Been Sanctioned.
5. On The Other Hand, It Has Been Urged On Behalf Of The Respondent That There Was No Warrant Or Justification To Retain The Payment Of Gratuity And The Directions Issued By The Learned Single Judge Are Just And Proper.
6. Regulation 351 Provides As Follows:
"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."

Regulation 351-A Insofar As Is Material To This Proceeding Is As Follows:
"351-A. The Governor Reserves To Himself The Right Of Withholding Or Withdrawing A Pension Or Any Part Of It, Whether Permanently Or For A Specified Period And The Right Of Ordering The Recovery From A Pension Of The Whole Or Part Of Any Pecuniary Loss Caused Government, If The Pensioner Is Found In Departmental Or Judicial Proceedings To Have Been Guilty Of Grave Misconduct, Or To Have Caused Pecuniary Loss To Government By Misconduct Or Negligence, During His Service, Including Service Rendered On Re-employment After Retirement."

Explanation (b) To The Second Proviso Of Regulation 351-A, Inter Alia, Provides As Follows:
"(b) Judicial Proceedings Shall Be Deemed To Have Been Instituted:
(i)in The Case Of Criminal Proceedings, On The Date On Which Complaint Is Made, Or A Charge-sheet Is Submitted, To A Criminal Court ; And
(ii)in The Case Of Civil Proceedings, On The Date On Which The Plaint Is Presented Or, As The Case May Be, An Application Is Made To A Civil Court."

Regulation 351-AA Is As Follows:
"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."

Finally, For The Sake Of A Complete Appreciation Of The Applicable Regulations, It Would Be Necessary To Refer To Regulation 919-A, Which Reads As Follows:
"919-A. (1) In Case Referred To In Regulation 351-AA The Head Of Department May Authorise The Provisional Pension Equal To The Maximum Pension Which Would Have Been Admissible On The Basis Of Qualifying Service Upto The Date Of Retirement Of The Government Servant Or If He Was Under Suspension On The Date Of Retirement Upto 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 Upto And Including The Date On Which After 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 Enquiry Referred To In Clause (3) But No Recovery Shall Be Made Where The Pension Finally Sanctioned Is Less Than The Provisional Pension Or Withheld Either Permanently Or For Special Period."

7. Now, Regulation 351 Reserves To The State Government The Right To Withhold Or Withdraw Pension Or A Part Thereof Upon A Pensioner Being Convicted Of A Serious Crime Or Being Guilty Of A Grave Misconduct. Conviction Of A Serious Crime Within The Meaning Of Regulation 351 Postulates That After A Criminal Trial, A Pensioner Has Been Found Guilty Of An Offence Involving A Serious Crime. In Other Words, There Has To Be A Judicial Determination By Which The Pensioner Is Convicted Of A Serious Crime. Regulation 351-A Reserves To Government The Right To Withholding Or Withdrawing Of Pension And The Right To Order A Recovery From The Pension, If A Pensioner Is Found In Departmental Or Judicial Proceedings To Be Guilty Of Grave Misconduct Or To Have Caused A Pecuniary Loss To The Government By His Misconduct Or Negligence. Hence, Regulation 351-A Operates In Two Areas:
(i) If The Pensioner Is Found In Departmental Or Judicial Proceedings To Be Guilty Of Grave Misconduct;
or
(ii) If The Pensioner Is Found In Departmental Or Judicial Proceedings To Have Caused Pecuniary Loss To The Government By His Misconduct Or Negligence, During Service Or On Re-employment.

Government Has The Power To Withhold Or Withdraw The Pension And A Power To Recover Any Pecuniary Loss Suffered. Regulation 351-A Postulates That There Has To Be A Determination In Departmental Or Judicial Proceedings. Regulation 351-AA Deals With A Situation Where A Departmental Or Judicial Proceeding Or Any Enquiry By The Administrative Tribunal Is Pending On The Date Of Retirement Or Is To Be Instituted After Retirement In Which Case A Provisional Pension Under Regulation 919-A May Be Sanctioned. Where A Departmental Or Judicial Proceeding Is Pending On The Date Of Retirement, Regulation 351-AA Stipulates That A Provisional Pension Would Be Admissible And The Modalities For The Payment Of A Provisional Pension Are Prescribed Under Regulation 919-A. Regulation 919-A (1) Makes A Reference To The Situation Which Is Referred In Regulation 351-AA And Authorises The Payment Of A Provisional Pension By The Head Of Department. The Provisional Pension Is To Be Authorised For The Period Commencing From The Date Of Retirement Upto And Including The Date Of Conclusion Of Departmental Or Judicial Proceedings Or, As The Case May Be, The Enquiry By The Administrative Tribunal. Regulation 919-A (3) Contains An Expression Prohibition On The Payment Of Death-cum-retirement Gratuity To A Government Servant Until The Conclusion Of The Departmental Proceeding, Judicial Proceeding Or As The Case May Be, An Enquiry By The Administrative Tribunal. Regulation 41 Provides That Except When The Term 'Pension' Is Used In Contradistinction To Gratuity, 'Pension' Would Include Gratuity. Consequently, Regulation 919 (3) Which Contains A Bar On The Payment Of Gratuity Till The Conclusion Of A Departmental Or Judicial Proceeding Would Allow The Payment Of A Provisional Pension Stipulated In Clause (1) Of Regulation 919-A.
8. The Learned Single Judge, In The Present Case, Has Proceeded On The Basis That Neither In Regulation 351 Nor In Regulation 351-A Is A Withholding Of Gratuity Contemplated During The Pendency Of A Judicial Proceeding. The Learned Single Judge, With Respect, Has Overlooked The Provisions Of Regulation 351-AA And A Specific Bar Which Is Contained In Regulation 919-A (3). In View Of The Specific Prohibition Which Is Contained In Regulation 919-A (3), No Death-cum-retirement Gratuity Would Be Admissible Until The Conclusion Of A Departmental Or Judicial Proceeding. The Expression 'judicial Proceeding' Would Necessarily Include The Pendency Of A Criminal Case.
9. In A Judgement Of A Division Bench Of This Court In Shri Pal Vaish Vs. U.P. Power Corporation Limited And Another1, It Has Been Held That Clause 3 Of Regulation 919-A Is A Provision Which Specifically Deals With The Payment Of Gratuity During Pendency Of Departmental Or Judicial Proceedings And In View Thereof, The Payment Of Gratuity Has To Be Deferred Until The Conclusion Of Such A Proceeding. The Division Bench Also Held That The Payment Of Gratuity Cannot Be Made In View Of The Bar Contained In Regulation 919-A During The Pendency Of A Criminal Case.
10. In A Recent Judgement Of The Supreme Court In State Of Jharkhand & Ors. Vs. Jitendra Kumar Srivastava & Anr2, The Supreme Court Dealt With The Provisions Of Rule 43 (b) Of The Pension Rules Of The State Of Bihar As Applicable To The State Of Jharkhand. Regulation 43(b) Was Pari Materia To Regulation 351-A Of The Civil Service Regulations In The State Of U.P. In That Context, The Supreme Court Held That Rule 43(b) Made It Clear That It Was Permissible For The Government To Withhold Pension Only When A Finding Is Recorded In A Departmental Inquiry Or Judicial Proceeding In Regard To The Commission Of Misconduct While In Service And Rule 43(b) Contains No Provision For Withholding Gratuity When Departmental Or Judicial Proceedings Are Still Pending. However, The Supreme Court Clarified That Though There Was No Provision For Withholding Pension Or Gratuity In The Given Situation, Had There Been Any Such Provision In The Rules, The Position Would Have Been Different. In The Present Case, There Is A Specific Provision Contained In Regulation 351-AA Read With Regulation 919-A(3).
11. In The Circumstances, We Are Of The View That The Order Passed By The Superintendent Of Police, Etah Withholding The Payment Of Gratuity Until The Conclusion Of The Criminal Trial Was Correct And Proper And Was In Accordance With The Provisions Of Regulation 351-AA Read With Regulation 919-A (3). The Respondent Would However Be Entitled To The Payment Of Provisional Pension As Contemplated In Law.
12. In View Of The Above, We Allow The Appeal And Set Aside The Impugned Order Of The Learned Single Judge Dated 10 May 2013. In Consequence, The Petition Which Has Been Filed Under Article 226 Of The Constitution Shall Stand Dismissed. There Shall Be No Order As To Costs.
Order Date :- 17.12.2013 (Dr.D.Y.Chandrachud,C.J.)
RK

(Sanjay Misra,J.)




C.M. Delay Condonation Application No.368855 Of 2013
IN
Case :- SPECIAL APPEAL DEFECTIVE No. - 1278 Of 2013

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Sanjay Misra,J.

The Application Seeks Condonation Of Delay In Filing The Special Appeal.
Since Sufficient Cause Has Been Shown In The Affidavit Filed In Support Of The Application, The Delay In Filing The Appeal Is Condoned.
The Application Stands, Accordingly, Disposed Of.

Order Date :- 17.12.2013 (Dr.D.Y.Chandrachud,C.J.)
RK

(Sanjay Misra,J.)




Case :- SPECIAL APPEAL DEFECTIVE No. - 1278 Of 2013
****
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Sanjay Misra,J.

Allowed.
For Orders, See Order Of Date Passed In Separate Sheets (ten Pages).

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