Allahabad High Court
Mohammad Majhar vs State Of U.P. And 2 Others on 9 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2691
Author: Shekhar Kumar Yadav
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 75 Case :- WRIT - A No. - 4818 of 2020 Petitioner :- Mohammad Majhar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Yashwant Pratap Singh,Sanjai Singh Counsel for Respondent :- C.S.C. Hon'ble Shekhar Kumar Yadav,J.
1. To assail correctness of the order impugned dated 18.11.2019 passed by the respondent no.3-Superintendent of Police, Maharajganj, whereby regular pension and gratuity of the petitioner has been stopped by taking plea that a criminal case being No.767A/2014, under Sections 147, 323, 504, 506, 307, 352 and 392 I.P.C., Police Station Jataha Bazar, District Kushinagar, which is still pending against him, the instant writ petition has been filed.
2. Briefly, the facts of the present case are that on 01.11.1978 initially the petitioner was appointed as a Constable in the Police Department. In the year 2014, after completion of 36 years of his service, he was promoted on the post of Naib Daroga at Police Station Jataha Bazar, District Kushinagar. During the aforesaid period, the petitioner was doing his service in the Department with full ability, sincerity, honesty and his career was unblemished in whole service period and his work and conduct was found satisfactory by the higher authority. It is alleged that on 21.11.2014, the then Station House Officer, Police Station Jataha, District Kushinagar lodged a first information report against 18 named persons being Case Crime No.767 of 2014, under Sections 147, 148, 149, 307, 395, 397, 333, 353, 189, 323, 504, 506 I.P.C. and Section 7 of Criminal Law Amendment Act. Thereafter, on 27.11.2014, as a counter blast to the above said first information report, a cross first information report was lodged by one Laxmi Yadav against the petitioner and 4 others, which has been registered as Case Crime No.767A of 2014, under Sections 147, 307, 352, 392, 323, 504 and 506 I.P.C., Police Station Jataha Bazar, District Kushinagar. On 30.12.2018, the investigating officer submitted final report against the petitioner. On 16.09.2019, Laxmi Yadav has filed a protest petition before the Court of Judicial Magistrate, Kushinagar at Padrauna against the said final report dated 30.12.2018. In the meantime, the petitioner was promoted as Sub Inspector at District Maharajganj. On 04.07.2019, a letter was sent by the Superintendent of Police, Maharajganj to the Prabhari Nirikshak Kotwali, District Maharajganj with the information that the petitioner is going to be superannuated on 31.12.2019. On 31.12.2019, the petitioner retired from the post of Sub Inspector. On 18.11.2019, an order has been passed by the Superintendent of Police, Maharajganj to provide pension and other retrial benefits to the petitioner.
3. On the same day i.e. on 18.11.2019, the respondent no.3- Superintendent of Police, Maharajganj has passed the impugned order, whereby the regular pension and gratuity of the petitioner has been stopped due to pendency of criminal case being Case Crime No.767A/2014 under the above mentioned sections, hence, this writ petition.
4. Learned counsel for the petitioner submits that in Criminal Case No767A/2014, final report had been submitted before the competent court on 30.12.2018 and the same is still pending consideration before the Chief Judicial Magistrate, Kushinagar. The date of retirement of the petitioner is 31st December, 2019 as admitted in the counter affidavit filed on behalf of State. It is, thus, clear that on the date of retirement, judicial proceeding as contemplated in Regulation 351A of Civil Service Regulations have not been instituted since according to Regulations, judicial proceedings shall be deemed to have been instituted on the date when a charge is submitted to a criminal court. Hence, the power under the G.O. dated 28.10.1980 and 28.07.1989 for stopping the pension cannot be exercised. In support of his submission, learned counsel for the petitioner has placed reliance on Government Order dated 28.07.1989 as well as the judgment passed by this Court in H.C. Sughar Singh (Retired) vs. Deputy Inspector General of Police (Establishment), 2004 LawSuit (All) 236 dated 27.02.2004 and Kameshwar Pasad vs. State of U.P. and others, W.P. No.21773/2009 dated 25.04.2011.
5. Countering the above said submissions, on the other hand, learned Standing Counsel has vehemently opposed the writ petition and submits that in view of the Government Order dated 28.10.1980, which provides that due to pendency of trial against an incumbent, the final pension and gratuity cannot be paid. The petitioner is being paid the pension, whereas, nothing has been brought before this Court to show and suggest that the said final report has been accepted by the competent court and as such, there is no infirmity or illegality in the order impugned passed by the respondent no.3-Superintendent of Police, Maharajganj. However, a final report was submitted before the court concerned in the matter, but until its adjudication, the said proceedings cannot be said to be cumulative, inasmuch as, the opportunity of protest is given to the opposite faction and the proceedings are still pending. However, in terms of G.Os. dated 28.10.1980 and 28.07.1989, the provisional pension has been granted in favour of the petitioner, inasmuch as, the said government order specifically provides that the payment of gratuity be not made until adjudication of any pending judicial proceedings. Apart from it, as per the report submitted by S.H.O. Jatha Bazar, Kushinagar, the proceedings under the above mentioned case crime are pending consideration before the court concerned.
6. Heard Sri Yashwant Pratap Singh, learned counsel for the petitioner, learned Standing Counsel for the State and perused the material available on record.
7. The first issue, which has arisen in the writ petition, is as to whether the petitioner is entitled for full pension and gratuity in the facts of the present case.
8. A Government Servant after attaining the age of superannuation is entitled for pension in accordance with the provisions of Civil Service Regulations (as applicable in the State of Uttar Pradesh). According to paragraph 41 of Civil Service Regulations, pension has been defined in following manner, "Except when the term "Pension" is used in contradistinction to gratuity "Pension" includes Gratuity." Regulations 351 and 351A relates to withdrawing a pension or any part of it and to order the recovery from the pension respectively. For ready reference, Regulations 351 and 351A of Civil Service Regulation are extracted below :
"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.
Note.--This rule is applicable to all the officers enumerated in Article 349 except ...................... Army Veterinary Officers of the Civil Veterinary Department.
"351-A. The Provincial Government reserve to themselves the right to order the recovery from the pension of an officer who entered service on or after 7th August, 1940 of any amount on account of losses found in judicial or departmental proceeding to have been caused to Government by the negligence or fraud of such officer during his service.
Provided that-
(1) such departmental proceedings, if not instituted while the officer was on duty.
(i) shall not be instituted save with the sanction of the 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 mis-conduct, 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 re-employment-
(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) (a), and
(c) the Public Service Commission, U.P., shall be consulted before final orders are passed.
Provincial Government:
(ii) shall be instituted before the officer's retirement from service or within a year from the date on which he was last on duty whichever is later;
(iii) shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty and;
(iv) shall be conducted by such authority and in such places whether in India or elsewhere, as the Provincial Government may direct;
(2) all such departmental proceedings shall be conducted, if the officer concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made; and (3) such judicial proceedings, if not instituted while the officer was on duty, shall have been instituted in accordance with sub-clauses (ii) and (iii) of clause (1).
Note- As soon as proceedings of the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned.
Explanation-For the purpose 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.
Note- As soon as proceedings or the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned."
9. The power under Regulation 351 is to be exercised by State Government for withholding or withdrawing a pension or any part of it, if the pensioner is convicted for serious crime or is guilty of grave misconduct. Regulation 351A empowers the State Government to order for recovery from the pension on account of losses found in judicial or departmental proceedings to have been caused to the Government by negligence or fraud of such officer during his service. There is no difficulty in exercising the power for ordering recovery of pension when finding comes in a judicial or departmental proceedings. The question for consideration in the present case is as to whether the State Government can direct for not payment of pension and gratuity when the departmental or judicial proceedings have not yet been finalized. The State Government has issued Government order dated 28th October, 1980 on the subject. By Government order dated 28th October, 1980, it has been provided that those employees against whom on the date of retirement departmental, judicial or proceedings before Administrative Tribunal are proceeding or it is necessary to draw such proceedings shall be given interim pension, but gratuity be not paid till finalization of the proceeding. The same provision has again been reiterated by Government order dated 28th July, 1989, in which, reference has also been made to the Government order dated 28th October, 1980.
10. So far as the present case is concerned, the petitioner has retired on 31.12.2019 and admittedly, the final report has been submitted in the matter on 16.09.2019.
11. In paragraph 8 of the counter affidavit, it is admitted that charge sheet was submitted before the court concerned in the matter, which is still pending consideration. The date of retirement of the petitioner is 31.12.2019 as admitted in the counter affidavit, it is, thus, clear that on the date of retirement, judicial proceeding, as contemplated in Regulation 351A of Civil Service Regulations, have not been instituted against the petitioner. Under the circumstances, in bereft of any such proceeding, relying on the Government Order dated 28.10.1980, the pension and gratuity of petitioner cannot be stopped, whereas, final report has been submitted before the Competent Court on 16.09.2019 and the same has not been negated by the Court concerned.
12. In above view of the matter and in the facts and circumstances of the present case, the State Government was not justified in not paying the pension and gratuity to the petitioner. However, it is made clear that in case the petitioner is convicted in the criminal case pending against him, the Government is fully empowered to exercise its power under Regulation 351 to withhold or withdraw the pension or any part of it. The petitioner, thus, has made out a case for direction to the respondents to finalize the pension and pay his gratuity.
13. Consequently, the writ petition succeeds and the same is allowed. The order impugned is set aside. Mandamus is issued to the respondent-authorities to ensure the entire payment as has been stopped by the order impugned dated 18.11.2019 within the period of two months from the date of production of certified copy of this order, failing which the petitioner is entitled for 12% interest on the delayed payment.
14. There will be no order as to cost.
Order Date :-09.12.2020 Ajeet (Shekhar Kumar Yadav, J.)