Allahabad High Court
Devesh Nandan vs State Of U.P. And 3 Others on 16 July, 2021
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - A No. - 4726 of 2021 Petitioner :- Devesh Nandan Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Anurag Sharma Counsel for Respondent :- C.S.C. Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and Sri Piyush Singh, learned Standing Counsel for the State respondents.
The sole prayer addressed on the present petition is for a direction being framed commanding the respondents to release gratuity due and payable to the petitioner along with interest as also to refix final pension along with arrears and interest.
Undisputedly the petitioner retired after serving under the respondents on 30 April 2018. It appears that while in service, the petitioner came to be named in a criminal case. Those proceedings were challenged by the petitioner initially by way of Criminal Writ Petition No.16398 of 2017 in which he was granted interim protection of stay of arrest. Since and consequent to the registration of the FIR, the petitioner also came to be detained an order of suspension was also passed. That order of suspension was challenged by the petitioner by way of Writ A No.46508 of 2017 where the same came to be set aside. A charge sheet ultimately came to be submitted upon conclusion of investigation which forms subject matter of challenge in Application U/S 482 No.207 of 2018. In the aforesaid application, an interim order still operates till date.
The sole question which consequently arises is whether the respondents are justified in withholding the entire gratuity that was payable to the petitioner merely on the ground of pendency of a criminal case. While undisputedly the power to withhold gratuity during the pendency of criminal proceedings inheres in the respondents by virtue of the provisions made in Regulation 919-A of the Civil Services Regulations, it must be noted that the same is neither absolute nor unfettered.
Dealing with the ambit of the power conferred by Regulation 919A, this Court in Krishna Chandra Pandey Vs. State of U.P. [2019 ADJOnline 0038] held thus:-
"As is evident from the principles enunciated in Faini Singh, while recognizing the power of the State to withhold gratuity and to fix a provisional pension during the pendency of judicial or departmental proceedings, the Division Bench further proceeded to hold that the action of withholding such benefits must be preceded by due application of mind and consideration of whether the charges levelled against the employee were serious and related to grave misconduct. The Division Bench in Faini Singh further proceeded to observe that there must be a due application of mind by the respondents while invoking the provisions of Regulation 919-A, as to whether any pecuniary loss stood caused to the Government or whether the allegations against the employee were of a serious crime, grave misconduct or negligence during his service. The Division Bench, essentially, highlighted that while the power did exist, the same must be exercised with due circumspection and action not taken mechanically.
The subsistence of judicial proceedings or departmental inquiry against a retiring government servant would, at best, lead to a position where the State - respondents would be entitled to invoke these provisions. Independently and as was mandated by the Division Bench in Faini Singh, the competent authority must take into consideration the nature of allegations levelled, gravity of the charge against the retiring government servant, the role ascribed to the government servant in the commission of the crime, nature of offenses of which he is charged and other relevant factors. The decision to withhold would, thus, have to be taken upon due consideration of the above and other germane factors. "
Additionally learned counsel for the petitioner relies upon a decision of the Supreme Court in Dr. Hira Lal Vs. State of Bihar [(2020) 4 SCC 346] where the Supreme Court dealing with the issue of entitlement of pensionary benefits, observed as follows: -
22. It is well settled that the right to pension cannot be taken away by a mere executive fiat or administrative instruction. Pension and gratuity are not mere bounties, or given out of generosity by the employer. An employee earns these benefits by virtue of his long, continuous, faithful and unblemished service. [State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210 : (2014) 1 SCC (Civ) 315 : (2014) 2 SCC (L&S) 570] The right to receive pension of a public servant has been held to be covered under the "right to property" under Article 31(1) of the Constitution by a Constitution Bench of this Court in Deokinandan Prasad v. State of Bihar [Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330 : 1971 Supp SCR 634] , which ruled that :
"30. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India [Bhagwant Singh v. Union of India, 1962 SCC OnLine P&H 27 : AIR 1962 P&H 503] . It was held that such a right constitutes "property" and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in letters patent appeal by the Union of India. Letters Patent Bench in its decision in Union of India v. Bhagwant Singh [Union of India v. Bhagwant Singh, 1964 SCC OnLine P&H 275 : ILR (1965) 2 P&H 1] approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority.
31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. State of Punjab [K.R. Erry v. State of Punjab, 1966 SCC OnLine P&H 255 : ILR (1967) 1 P&H 278] . The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions [Bhagwant Singh v. Union of India, 1962 SCC OnLine P&H 27 : AIR 1962 P&H 503] , [Union of India v. Bhagwant Singh, 1964 SCC OnLine P&H 275 : ILR (1965) 2 P&H 1] of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a government servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence, we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.
33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by clause (5) of Article 19. Therefore, it follows that the order, dated 12-6-1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable."
(emphasis supplied)
24. The right to receive pension has been held to be a right to property protected under Article 300-A of the Constitution even after the repeal of Article 31(1) by the Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20-6-1979, as held in State of W.B. v. Haresh C. Banerjee [State of W.B. v. Haresh C. Banerjee, (2006) 7 SCC 651 : 2006 SCC (L&S) 1719] .
It may only be noted that the further direction of the Supreme Court in Hira Lal for release of 90% of the pensionary benefits was based on the provisions of Rule 43 (c) of the Bihar Pension Rules. Hence the issue of quantum of benefits liable to be released need not detain this Court at this stage.
In view of the aforesaid, learned Standing Counsel submitted that the respondent no.3 shall duly evaluate the claim of the petitioner for release of gratuity, re-fixation of final pension and payment of arrears along with interest in accordance with law and bearing in mind the principles enunciated in Krishna Chandra Pandey and Dr. Hira Lal. He further states that the aforesaid exercise of consideration shall be concluded with expedition and preferably within a period of three months from today.
Accordingly, the writ petition shall stand disposed of in light of the statement noted above.
Order Date :- 16.7.2021 Vivek Kr.