Ram Murti Pandey vs State Of U.P. & Others on 1 May, 2017

[Cites 20, Cited by 5]

Allahabad High Court

Ram Murti Pandey vs State Of U.P. & Others on 1 May, 2017

(Delivered by Hon'ble Krishna Murari, J.) (1) Petitioner was appointed as Scientific Assistant in the Irrigation Department of the State of U.P. on 27.01.1996 and remained in continuous service till he retired on attaining the age of superannuation on 31.07.2000.

(2) When about for more than one year, neither the petitioner was paid any pension nor his other retiral benefits were disbursed, he approached this Court by filing Writ Petition No 34937 of 2001. A Division Bench vide judgment and order dated 06.02.2004 disposed of the writ petition by making following directions :-

"We have heard learned counsel for petitioner and standing counsel for the respondents. In the circumstances of the case it would be appropriate that the petitioner may approach respondent No. 1 alongwith certified copy of his order and other necessary documents for releasing the post retrial benefit. The respondent no. 1 after considering the case of the petitioner may pass a reasoned order, if possible within three months from the date of producing the certified copy of this order. The petitioner alongwith certified copy will also annex a self addressed duly stamped envelope. The respondent no. 1 after taking decision will inform the petitioner. In case due to some un-avaoidable reason there is some delay in finalizing the case the respondent will also consider granting interim person to the petitioner and will also consider for grant of interest to the petitioner in case the delay is not on part of the petitioner.

With these observations the writ petition is disposed of."

(3) Despite having made a representation in pursuance of the aforesaid judgment and order of this Court when no action was taken by the respondents, the petitioner was compelled to file a contempt petition being Civil Misc. Contempt Petition No. 2700 of 2005, wherein notices were issued. In response to the notices, a counter affidavit sworn by Secretary, Department of Irrigation was filed to the effect that judgment and order of this Court dated 06.02.2004 stood complied inasmuch as an order dated 08.02.2006 was already passed rejecting the representation of the petitioner on the ground that since he got employment on the basis of forged records as such his entire service was irregular and illegal and thus he was not entitled for payment of any pension or any post retiral benefits in view of Regulation 351 of the Civil Service Regulations.

(4) Reasons assigned in the order for the aforesaid conclusion was that a report was called on the representation made by the petitioner from the concerned department which mentioned that the date of birth of the petitioner was 09.07.1937, but by making manipulation in the date of birth, he obtained appointment fraudulently. Some enquiry is also alleged to have been made from the Intermediate Education Board, U.P, Allahabad who, on the basis of the record available with them, reported that date of birth of the petitioner is 09.07.1937 and he passed High School examination in 1954. Relying upon the aforesaid two reports, the authority held that when the petitioner joined services in 1966, his age was more than 28 years which was more than the prescribed maximum age limit for being appointed and he obtained appointment on the basis of forged documents. On the basis of the above, conclusion was drawn by the authority that since appointment was obtained by the petitioner by making manipulation in record as such his entire period of service is rendered irregular and illegal and thus he is not entitled to any pension in view of the provisions of Regulation 351 of U.P. Civil Service Regulations.

(5) Learned counsel for the petitioner contends that the impugned order on the basis of which his pension has been withheld, is not only arbitrary being based on some reports obtained ex parte behind his back and without notice or opportunity to rebut the same and to defend himself and is thus also violative of the principles of natural justice. It is also submitted that the petitioner has been held guilty without holding any disciplinary proceedings of any kind and thus the order is void and illegal and his pension has wrongly been withheld on the basis of the said report.

(6) A counter affidavit has been filed on behalf of the State of U.P. stating therein that the petitioner at the time of joining the department on 27.01.1966 produced a certificate showing his date of birth as 09.07.1942. Accordingly, he retired from service on attaining the age of superannuation on 31.07.2000. It is further stated that after due inquiry in the matter, the aforesaid certificate was found to be forged. Same facts have again been mentioned in paragraph 19 of the counter affidavit.

(7) A perusal of the counter affidavit goes to show that there is no denial of the specific averments made in the writ petition that alleged inquiry, on the basis of which the authority came to the conclusion that petitioner had obtained appointment on the basis of a forged certificate, was conducted behind his back and he was never given any opportunity to rebut the alleged inquiry report not any disciplinary proceedings at any point of time was drawn against the petitioner. Thus, the specific allegations made in the writ petition are un-rebutted.

(8) In the backdrop of above facts, the issue for adjudication is whether the respondents are justified in withholding the pension of the petitioner.

(9) It is settled legal proposition that pension is not a bounty. An employee earns the benefit of pension by dint of his long continuous faithful and unblemished service.

(10) The question as to what is pension, Why pension is paid, What are the goals of pension, What public interest or purpose, if any, it seeks to serve came for consideration before Hon'ble Apex Court in the case of "D.S. Nakara and others Vs. Union of India, AIR, 1983 (Supreme Court) 130. The issues were considered and answered by Hon'ble Apex Court in the aforesaid case as under :-

"The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service? What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.

The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad V. State of Bihar and Ors..[1971] Su. S.C.R. 634 : (AIR 1971 SC 1409) wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Anr Vs. Iqbal Singh (1976) IILLj 377SC".

(11) By the aforesaid pronouncement of the Hon'ble Apex Court, it stands settled that pension is a right of an employee and such right flows from virtue of rules.

(12) In the case in hand, the right of the petitioner to receive pension is governed by the provisions of Civil Service Regulations.

(13) The claim of the petitioner for pension has been rejected by invoking the provisions of regulation 351 of Civil Services Regulations which reads as under:-

"Future good conduct is an implied condition of ever grant of pension. The State Government reserves to themselves the right of withholding or withdrawing 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 the pension under this regulation shall be final and conclusive."

(14) It may also be relevant to quote Regulation 351(A) which also confers power on the Government to withhold or withdraw the pension or part thereof under certain circumstances. The said regulation reads as under :-

"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 to 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.

Provided that-

(a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment.

(i) shall not be instituted save with the sanction of the Governor;

(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and

(iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.

(b) judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and

(c) the Public Service Commission, U.P., shall be consulted before final orders are passed.

(Provided further that if the order passed by the Governor relates to a case dealt with under the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission.) Explanation-- For the purposes of this article--

(a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or, if the officer has been placed under suspension from an earlier date, on such date; and

(b) judicial proceedings shall be deemed to have been instituted:

(i) in the case of criminal proceedings, on the date on which a 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."

(15) From a bare reading of Regulation 351 and 351(A) of the Civil Service Regulation, the position which emerges is as under :-

(i) The State Government has the power to withhold or withdraw the pension or any part of it, if the pensioner is convicted of serious crime or is held guilty of grave misconduct.

(ii) The State Government also has the right to not only withhold or withdraw the pension or any part of it either permanently or for specified period and can also direct recovery from the pension a whole or part of any of the pecuniary loss caused to the Government if the pensioner is found guilty in departmental or judicial proceedings of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence during his service.

(16) Rule 351(A) also contains a proviso which provides that :-

(A) Departmental proceedings, if not instituted while Government Servant was on duty either before retirement or during re-employment.

(i) Shall not be instituted except with the sanction of the Government.

(ii) Shall be in respect of an event which took place not more than four years before the institution of such proceedings.

(iii) Shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.

(B) Judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment shall be instituted in accordance with Sub-Clause (ii) of Clause (A); and (C) The Public Service Commission shall be consulted before final orders are passed.

(17) In so far as the proviso to Rule 351(A) is concerned, it deals with the condition for initiation of proceedings and the period of limitation within which such proceedings can be initiated.

(18) Reading of Regulation 351 and 351(A) makes it abundantly clear that It is permissible for the Government to withhold or withdraw a pension or any part of it only when a pensioner is convicted of serious crime or is found guilty of grave misconduct in departmental inquiry or judicial proceedings. At this stage, it may be relevant to point out that while passing the order dated 08.02.2006 denying pension to the petitioner, a direction was also issued to register First Information Report under relevant provisions of the Indian Penal Code. In pursuance of the aforesaid direction, First Information Report dated 04.04.2006 was lodged against the petitioner under Section 177, 181, 198, 107 and 463 of the Indian Penal Code which was registered as Case Crime No. 132 of 2006, Police Station-Obra, District-Sonbhadra. Further undisputed facts are that the petitioner filed a Criminal Misc. Writ Petition No. 6200 of 2006 seeking quashing of the First Information Report wherein an interim order dated 17.05.2006 for staying the arrest of the petitioner was passed. However, after completing the investigation, the Police submitted a charge-sheet under Section 177, 181,198, 107, 466 and 468 on the basis of which Case No. 4128 of 2006 (State Vs. Ram Murti Pandey) was registered in the court of Chief Judicial Magistrate, Sonbhadra. Petitioner challenged the criminal proceedings by filing a miscellaneous application under Section 482 Cr.P.C. being Criminal Misc. Writ Petition No. 1574 of 2007 and an interim order was passed on 08.08.2007 and the said application is stated to be still pending.

(19) In the background of the aforesaid facts, the question which arises for consideration is as to whether the State Government can deny and withhold the pension payable to the petitioner during the pendency of the criminal proceedings or without drawing any disciplinary proceedings and without establishing the guilt of grave misconduct.

From a reading of Regulation 351, it is more than clear that there is no provision in the rules for withholding of the pension during the pendency of the criminal proceedings or even during the pendency of disciplinary proceedings. The view taken by us finds support from the pronouncement of Hon'ble the Apex Court in the case of State of Jharkhand and others Vs Jitendra Kumar Srivastava and anr. AIR 2013(Supreme Court) 3383.

(20) The question for consideration in the said case before the Apex Court was as to whether in the absence of any provision in the pension rules, the State Government can withhold a part of pension or gratuity during the pendency of departmental or criminal proceedings. The facts of the case was that during the service period of the employee, two cases were registered against him under various sections of Indian Penal Code as well as Prevention of Corruption Act, 1988 alleging certain financial irregularities. Subsequently, when the State of Jharkhand was carved out, he became the employee of the said state. A departmental proceeding was also initiated against him. During the pendency of the proceeding, he retired from service on attaining the age of superannuation. The Government sanctioned 90% provisional pension to him and the remaining 10% was withheld pending outcome of the criminal cases/departmental inquiry against him. Other post retiral benefits were also not paid.

(21) After considering the provisions of Rule 43(A) and 43(B) of Bihar Pension Rules, which in effect are pari materia with Regulation 351 and 351-A of Civil Service Regulations applicable in the State of U.P, it was held that in the absence of any provision in the rules providing for withholding of the pension/gratuity, there is no power with the Government to withhold gratuity and pension etc. during the pendency of the departmental or criminal proceedings.

(22) Admittedly, in the case in hand, criminal proceedings are stated to be still pending against the petitioner. Thus, in view of the law laid down by Hon'ble Apex Court in "State of Jharkhand(supra)", the pension of the petitioner cannot be withheld during the pendency of the criminal proceedings. In so far as departmental proceedings are concerned, it is an admitted case that the same were never initiated. The question is whether they can be initiated now to find out whether the petitioner conducted any misconduct by seeking appointment on the basis of forged documents showing his date of birth to be different from what it actually was. The answer to the said question in view of Regulation 351 is no. Proviso (a)(ii) of Regulation 351-A prescribes a limitation of fours years from the date when the event took place for instituting such proceedings.

(23) Admittedly, the petitioner was appointed on 27.01.1966. Prescribed period of four years lapsed long back. Even if the limitation is counted from the date of his superannuation which is 31.07.2000 even then the period of limitation expired long back. Thus, no departmental proceedings can now be initiated against the petitioner even if there is an alleged misconduct committed by him by obtaining appointment on the basis of alleged forged documents incorrectly depicting his date of birth. The net result is that the petitioner has not been convicted in the criminal proceedings and now no departmental proceedings can be initiated against him and thus, the order withholding his pension is rendered per se illegal and dehors the provisions of Civil Services Regulations and is not liable to be sustained.

(24) In view of the aforesaid facts and circumstances and the settled legal position that pension is not a bounty payable on the sweet will and pleasure of the Government and that the right to receive pension is a valuable right vested in a government servant and the applicable rules not providing for withholding or withdrawing the pension of the petitioner in the given situation, we have no hesitation in holding that the impugned order is not liable to be sustained and deserves to be quashed and accordingly the same stands quashed. Petitioner is entitled for payment of pension, including the arrears.

(25) Petitioner is also liable to be compensated for the wrongful withholding of the pension for such a long period. Awarding interest on delayed payment of retiral dues has been upheld time and again as a mode of compensation in catena of decisions.

Reference may be made to the judgment of Hon'ble Apex Court in the case of State of Kerala and others Vs. M. Padmnanaban Nair 1985 (1) SLR 750 wherein it has been held as under :-

"Since the date of retirement of every Government servant is very much known in advance we fail to appreciate why the process of collecting the requisite information and issuance of these two documents should not be completed at least a week before the date of retirement so that the payment of gratuity amount could be made to the Government servant on the date he retires or on the following day and pension at the expiry of the following months. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over- emphasized and it would not be unreasonable to direct that the liability to pay panel interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement."

In this view of the matter, this Court is of the view that the claim of the petitioner for interest on the delayed payment of retiral benefits has to be sustained."

(26) The aforesaid view has been followed and reiterated in the case of O.P. Gupta Vs. Union of India and others (1987) 4 SCC 328, S.R. Bhanrate Vs. Union of India and others AIR 1997 Supreme Court 27, Dr. Uma Agarwal Vs. State of U.P. and another (1999) 3 SCC 488 and S.K. Dua Vs. State of Haryana and others (2008) 3 SCC 44. In a recent decision of the case of Rajeshwar Swarup Gupta Vs. State of U.P. and others 2011 (2) ADJ 608, a Division Bench of this Court while considering the question of award of interest on delayed payment of retiral benefits, relying on the Apex Court judgment in the case of P. Padmnanaban Nair (supra) awarded 12% interest.

(27) In the facts and circumstances of the case, we are also of the considered opinion that petitioner is entitled not only for the arrear of pension but also simple interest on the delayed payment which we quantify as 12% per annum.

(28) The writ petition is accordingly allowed. A writ of mandamus is issued commanding respondents to sanction and disburse all retiral dues to the petitioners along with simple interest @ 12% per annum with effect from the date of retirement till the date of actual payment within a period of four months from the date of production of certified copy of this order.

Order Date :-01.05.2017 Sumit S

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Allahabad High Court