Madhya Pradesh High Court
M.L. Mittal vs The State Of Madhya Pradesh on 2 December, 2021
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
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W.P. No.13798/2013
THE HIGH COURT OF MADHYA PRADESH, JABALPUR
Writ Petition No.13798/2013
M.L. Mittal
Versus
State of Madhya Pradesh & another
Date of Order 02.12.2021
Bench Constituted Single Bench
Order delivered by Hon'ble Mr. Justice Sanjay Dwivedi
Whether approved Yes
for reporting
Name of counsel for For petitioner: Mr. Ved Prakash Nema,
parties Advocate.
For Respondents/State: Mr. Punit
Shroti, Panel Lawyer.
Law laid down Mere pendecy of an appeal against the
acquittal order of an employee does not
confer any right upon the
respondent/employer to withhold the
retiral dues of the employee.
Significant Para Nos. 8, 9, 10, 11 and 12
(O R D E R)
(02.12.2021)
This petition is heard finally.
2. By means of this petition filed under Article 226 of
the Constitution of India, the petitioner is not challenging any
specific order, but seeking a direction for issuance of writ of
mandamus for the respondents to finalize his case of retiral
dues and be paid to him expeditiously.
3. The crisp and short facts of the case are that the
petitioner after attaining the age of superannuation stood
retired from service on 30.11.2001, but on the date of
retirement, since the petitioner was facing a criminal trial i.e.
Special Case No.12/1997 in connection with Crime
No.122/1996 for an offence under Section 13(1)(d) read with
Section 13(2), Section 5(1)(d) read with Section 5(2) of the
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Prevention of Corruption Act and Section 120-B of the Indian
Penal Code registered against the petitioner, therefore, his
retiral dues could not be finalized. However, the trial Court
vide order dated 05.11.2004 (Annexure-P/7), acquitted the
petitioner from the charge levelled against him. Thereafter,
against the said order of acquittal, the State preferred an appeal
before the High Court which got registered as Criminal Appeal
No.842/2005 [The State of M.P. Vs. Madan Lal Mittal], which
is yet to be finally adjudicated. After making unflagging
requests, when the petitioner's retiral dues were not settled,
then left with no option, he filed the instant petition.
4. Mr. Nema, learned counsel for the petitioner
submits that presently the petitioner is getting only anticipatory
pension, but his other retiral dues are withheld by respondents.
He submits that the petitioner made various representations
before the Authority for getting his retiral dues, but all went in
vain. He further submits that mere pendency of an appeal that
too against the petitioner's acquittal order, does not confer any
right on the respondents to withhold his retiral dues and as
such, the action on the part of the respondents/Authority is
completely arbitrary and illegal.
5. Per contra, Mr. Shroti, learned Panel Lawyer
appearing for the respondents/State while relying upon the
reply filed on behalf of the respondents/State, has submitted
that since the appeal against the petitioner's acquittal order is
sub judice before the Court, therefore, his retiral dues are not
finalized.
6. I have heard the arguments advanced by learned
counsel for the parties and perused the record.
7. Indisputably, the petitioner was acquitted from the
charge levelled against him and during pendency of trial and
even after its conclusion, the respondents/Authority did not
initiate any departmental proceeding against him. The
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petitioner since retired on attaining the age of superannuation,
there is no provision under the rules to withhold his post retiral
benefits due to pendency of criminal appeal, therefore, in the
circumstance, the petitioner is entitled to get his post retiral
dues.
8. The reply filed on behalf of the respondents
merely depicts a simple stand that since against the petitioner's
acquittal order a criminal appeal is sub judice before the Court,
therefore, he is not entitled to get his post retiral dues. Learned
Panel Lawyer during the course of arguments failed to show
any rule as to under which provision, the respondents are
empowered to withhold the pension or gratuity amount of the
employee even in absence of any finding against him either in
the departmental or judicial proceedings. At this juncture, it is
apposite to see the provisions of Rule 45A of the Madhya
Pradesh Civil Services (Pension) Rules, 1976 (in short the
'Rules, 1976'), which provide as to under which
circumstances, a Government Servant can be debarred from
receiving the gratuity. Rule 45A of the Rules, 1976 reads as
under:-
"[45A. Debarring a person from receiving gratuity.- (1)
If a person, who in the event of death of a Government
servant while in service is eligible to receive gratuity in
terms of Rule 45 is charged with the offence of
murdering the Government servant or for abetting in the
Commission of such an offence, his claim to receive his
share of gratuity shall remain suspended till the
conclusion of tire criminal proceedings instituted against
him.
(2) If on the conclusion of the criminal
proceedings referred to in sub-rule (1), the person
concerned:-
(a) is convicted for the murder or abetting in the
murder of the Government servant, he shall
be debarred from receiving his share of
gratuity which shall be payable to other
eligible members of the family, if any;
(b) is acquitted of the charge of murder or
abetting in the murder of the Government
servant, his share of gratuity shall be
payable to him.
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(3) The provisions of sub-rule (1) and sub-rule (2)
shall also apply to the undisbursed gratuity referred to in
sub-rule (2) of Rule 45]."
Further, Rule 9 of the Rules, 1976 provides the power of the
Governor to withhold or withdraw pension. Rule 9 of the
Rules, 1976 reads as under:-
"9. Right of Governor to withhold or withdraw
pension.-(1) The Governor reserves to himself the right
of withholding or withdrawing a pension or part thereof,
whether permanently or for a specified period, and of
ordering recovery from pension of the whole or part of
any pecuniary loss caused to the Government if, in any
departmental or judicial proceeding, the pensioner is
found guilty of grave misconduct or negligence during
the period of his service, including service rendered upon
re-employment after retirement:
Provided that the State Public Service
Commission shall be consulted before any final orders
are passed:
Provided further that where a part of pension is
withheld or withdrawn, the amount of such pension shall
not be reduced below [the minimum pension as
determined by the Government from time to time];
(2)(a) The departmental proceedings [xxx], if
instituted while the Government servant was in service
whether before his retirement or during his re-
employment, shall, after the final retirement of the
Government servant, be deemed to be proceedings under
this rule and shall be continued and concluded by the
authority by which they were commenced, in the same
manner as if the Government servant had continued in
service:
Provided that where the departmental proceedings
are instituted by an authority subordinate to the
Governor, that authority shall submit a report regarding
its findings to the Governor.
(b) The departmental proceedings, if not instituted
while the Government servant was in service whether
before his retirement or during his re-employment:-
(i) shall not be instituted save with the sanction of
the Governor;
(ii) shall not be in respect of any event which took
place more than four years before such
institution; and
[(iii) shall be conducted by such authority and in
such place as the Government may direct and
in accordance with the procedure applicable to
departmental proceedings :
(a) in which an order of dismissal from
service could be made in relation to the
Government servant during his service in
case it is proposed to withhold or
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W.P. No.13798/2013
withdraw a pension or part thereof
whether permanently or for a specified
period; or
(b) in which an order of recovery from his
pay of the whole or part of any pecuniary
loss caused by him to the Government by
negligence or breach of orders could be
made in relation to the Government
servant during his service if it is proposed
to order recovery from his pension of the
whole or part of any pecuniary loss
caused to the Government].
(3) No judicial proceeding, if not instituted while
the Government servant was in service, whether before
his retirement or during his re-employment, shall be
instituted in respect of a cause of action which arose or in
respect of an event which took place, more than four
years before such institution.
(4) In the case of a Government servant who has
retired on attaining the age of superannuation or
otherwise and against whom any departmental or judicial
proceedings are instituted or where departmental
proceedings are continued under sub-rule (2), a
provisional pension and death-cum-retirement gratuity as
provided in [Rule 64], as the case may be, shall be
sanctioned :
[Provided that where pension has already been
finally sanctioned to a Government servant prior to
institution of departmental proceedings, the Governor
may, by order in writing, withhold, with effect from the
date of institution of such departmental proceedings fifty
per cent of the pension so sanctioned subject however
that the pension payable after such withholding is not
reduced to less than [the minimum pension as determined
by the Government from time to time] :
Provided further that where departmental
proceedings have been instituted prior to the 25th
October, 1978, the first proviso shall have effect as it for
the words "with effect from the date of institution of such
proceedings" the words "with effect from a date not later
than thirty days from the date aforementioned," had been
substituted :
Provided also that-
(a) If the departmental proceedings are not
completed within a period of one year
from the date of institution thereof, fifty
per cent of the pension withheld shall
stand restored on the expiration of the
aforesaid period of one year;
(b) If the departmental proceedings are not
completed within a period of two years
from the date of institution the entire
amount of pension so withheld shall stand
restored on the expiration of the aforesaid
period of two years; and
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(c) If in the departmental proceedings final
order is passed to withhold or withdraw
the pension or any recovery is ordered,
the order shall be deemed to take effect
from the date of the institution of
departmental proceedings and the amount
of pension since withheld shall be
adjusted in terms of the final order
subject to the limit specified in sub-rule
(5) of Rule 43].
(5) Where the Government decides not to
withhold or withdraw pension but orders recovery of
pecuniary loss from pension, the recovery shall not be
made at a rate exceeding one-third of the pension
admissible on the date of retirement of a Government
servant.
(6) For the purpose of this rule-
(a) departmental proceedings shall be
deemed to be instituted on the date on
which the statement of charges is issued
to the Government servant or pensioner,
or if the Government servant has been
placed under suspension from an earlier
date, on such date; and
(b) judicial proceedings shall be deemed to
be instituted-
(i) in the case of criminal proceedings,
on the date on which the complaint
or report of a police officer, of
which the Magistrate takes
cognizance, is made, and
(ii) in the case of civil proceedings, on
the date the plaint is presented in the
Court."
Perusal of aforesaid provisions makes it amply clear that since
the petitioner was acquitted in the criminal trial, therefore, he is
entitled to get his post retiral dues.
9. Furthermore, the Division Bench of this Court in
the case reported in 2002 (4) MPLJ 401 [Ram Ratan Tiwari
Vs. State of M.P. and others] has held that suspension of
Government Servant during pendency of investigation, inquiry
or trial of criminal offence against him cannot be continued
during appeal after acquittal of Government Servant. The
Division Bench in the aforesaid case has also observed that
keeping an employee under suspension may cause immense
hardship to him merely on the ground that an appeal preferred
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W.P. No.13798/2013
against the order of acquittal of that employee is pending for
final adjudication. Further, the Division Bench of this Court in
a case reported in ILR [2008] MP 2213 [M.P. State Civil
Supplied Corporation Ltd. Vs. Vinod Kumar Save] has
solicited the same principle as has been laid down in the case
of Ram Ratan Tiwari (supra) and approved the direction of
writ Court whereby the employer was directed to pay all retiral
dues to the employee after his acquittal from the criminal case
tried against him that too during pendecy of appeal preferred
against his acquittal by the employer.
10. Likewise, the Supreme Court in a case reported in
(2013) 12 SCC 210 [State of Jharkhand & Ors. Vs. Jitendra
Kumar Shrivastava & Anr.] has very specifically observed
that in absence of any provision in the Pension Rules, the State
Government cannot withhold a part of pension and/or gratuity
even during pendency of departmental/criminal proceedings.
However, in the said case, the Supreme Court has dealt with
the provisions of Bihar Pension Rules, but the analogy as has
been applied by the Supreme Court in the aforesaid case has
direct impact in the present case. In the aforesaid case, the
Supreme Court has also discussed the rights of an employee to
receive pension and also observed that pension includes
gratuity. The observations made by the Supreme Court in the
case of Jitendra Kumar Shrivastava (supra) are as under:-
"7. The aforesaid arguments of the learned Senior
Counsel based on the judgment in Sant Ram Sharma v.
State of Rajasthan, AIR 1967 SC 1910 would not cut any
ice insofar as present case is concerned, because of the
reason that case has no applicability in the given case.
Sant Ram judgment governs the field of administrative
law wherein the Constitution Bench laid down the
principle that the rules framed by the authority in
exercise of powers contained in an enactment, would also
have statutory force. Though the administration can issue
administrative instructions for the smooth administrative
function, such administrative instructions cannot
supplant the rules. However, these administrative
instructions can supplement the statutory rules by taking
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care of those situations where the statutory rules are
silent. This ratio of that judgment is narrated in the
following manner: (AIR p. 1914, para 7)
"7. ... It is true that there is no specific provision
in the Rules laying down the principle of
promotion of junior or senior grade officers to
selection grade posts. But that does not mean
that till statutory rules are framed in this behalf
the Government cannot issue administrative
instructions regarding the principle to be
followed in promotions of the officers concerned
to selection grade posts. It is true that the
Government cannot amend or supersede
statutory rules by administrative instructions, but
if the rules are silent on any particular point the
Government can fill up the gaps and supplement
the rules and issue instructions and inconsistent
with the rules already framed."
There cannot be any quarrel on this exposition of law
which is well grounded in a series of judgments
pronounced post Sant Ram Sharma case as well.
However, the question which is posed in the present case
is altogether different.
8. It is an accepted position that gratuity and
pension are not bounties. An employee earns these
benefits by dint of his long, continuous, faithful and
unblemished service. Conceptually it is so lucidly
described in D.S. Nakara v. Union of India [(1983) 1
SCC 305] by D.A. Desai, J. who spoke for the Bench, in
his inimitable style, in the following words: (SCC pp.
319-20, paras 18-20)
"18. 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?
19. 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.
20. The antiquated notion of pension being a
bounty a gratuitous 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
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Constitution Bench in Deokinandan Prasad v.
State of Bihar [(1971) 2 SCC 330] 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 anyone's discretion. It is only
for the purpose of quantifying the amount
having regard to service and other allied matters
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 v. Iqbal Singh
[(1976) 2 SCC 1] .
It is thus a hard earned benefit which accrues to an
employee and is in the nature of "property". This right to
property cannot be taken away without the due process of
law as per the provisions of Article 300-A of the
Constitution of India.
9. Having explained the legal position, let us first
discuss the rules relating to release of pension.
10. The present case is admittedly governed by the
Bihar Pension Rules, as applicable to the State of
Jharkhand. Rule 43(b) of the said Pension Rules confers
power on the State Government to withhold or withdraw
a pension or part thereof under certain circumstances.
This Rule 43(b) reads as under:
"43. (b) The State Government further
reserve to themselves the right of withholding or
withdrawing a pension or any part of it, whether
permanently or for specified period, and the
right of ordering the recovery from a pension of
the whole or part of any pecuniary loss caused to
the Government if the pensioner is found in
departmental or judicial proceeding to have been
guilty of grave misconduct; or to have caused
pecuniary loss to the Government by misconduct
or negligence, during his service including
service rendered on re-employment after
retirement:"
11. From the reading of the aforesaid Rule 43(b),
following position emerges:
(i) The State Government has the power to
withhold or withdraw pension or any part of it
when the pensioner is found to be guilty of
grave misconduct either in a departmental
proceeding or judicial proceeding.
(ii) This provision does not empower the
State to invoke the said power while the
departmental proceeding or judicial proceeding
are pending.
(iii) The power of withholding leave
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encashment is not provided under this Rule to
the State irrespective of the result of the above
proceedings.
(iv) This power can be invoked only when
the proceedings are concluded finding guilty and
not before.
12. There is also a proviso to Rule 43(b), which
provides that:
"(a) such departmental proceedings, if not
instituted while the government servant was on
duty either before retirement or during re-
employment;
(i) shall not be instituted save with the
sanction of the State Government;
(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 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
have been instituted in accordance with sub-
clause (ii) of clause (a); and
(c) the Bihar Public Service Commission,
shall be consulted before final orders are passed.
It is apparent that the proviso speaks about the institution
of proceedings. For initiating proceedings, Rule 43(b)
puts some conditions i.e. departmental proceeding as
indicated in Rule 43(b), if not instituted while the
government servant was on duty, then it shall not be
instituted except:
(a) With the sanction of the Government,
(b) It shall be in respect of an event which
took place not more than four years before the
institution of the proceedings.
(c) Such proceedings shall be conducted by
the enquiry officer in accordance with the
proceedings by which dismissal of the services
can be made.
Thus, insofar as the proviso is concerned that deals with
condition for initiation of proceedings and the period of
limitation within which such proceedings can be
initiated.
13. A reading of Rule 43(b) makes it abundantly
clear that even after the conclusion of the departmental
inquiry, it is permissible for the Government to withhold
pension, etc. only when a finding is recorded either in
departmental inquiry or judicial proceedings that the
employee had committed grave misconduct in the
discharge of his duty while in his office. There is no
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W.P. No.13798/2013
provision in the Rules for withholding of the
pension/gratuity when such departmental proceedings or
judicial proceedings are still pending.
14. The right to receive pension was recognised as
a right to property by the Constitution Bench judgment of
this Court in Deokinandan Prasad v. State of Bihar
[(1971) 2 SCC 330], as is apparent from the following
discussion: (SCC pp. 342-43, paras 27-33)
"27. The last question to be considered, is,
whether the right to receive pension by a
government servant is property, so as to attract
Articles 19(1)(f) and 31(1) of the Constitution.
This question falls to be decided in order to
consider whether the writ petition is
maintainable under Article 32. To this aspect, we
have already adverted to earlier and we now
proceed to consider the same.
28. According to the petitioner the right to
receive pension is property and the respondents
by an executive order dated 12-6-1968 have
wrongfully withheld his pension. That order
affects his fundamental rights under Articles
19(1)(f) and 31(1) of the Constitution. The
respondents, as we have already indicated, do
not dispute the right of the petitioner to get
pension, but for the order passed on 5-8-1996.
There is only a bald averment in the counter-
affidavit that no question of any fundamental
right arises for consideration. Mr Jha, learned
counsel for the respondents, was not prepared to
take up the position that the right to receive
pension cannot be considered to be property
under any circumstances. According to him, in
this case, no order has been passed by the State
granting pension. We understood the learned
counsel to urge that if the State had passed an
order granting pension and later on resiles from
that order, the latter order may be considered to
affect the petitioner's right regarding property so
as to attract Articles 19(1)(f) and 31(1) of the
Constitution.
29. We are not inclined to accept the
contention of the learned counsel for the
respondents. By a reference to the material
provisions in the Pension Rules, we have already
indicated that the grant of pension does not
depend upon an order being passed by the
authorities to that effect. It may be that for the
purposes of qualifying the amount having regard
to the period of service and other allied matters,
it may be necessary for the authorities to pass an
order to that effect, but the right to receive
pension flows to an officer not because of the
said order but by virtue of the rules. The rules,
we have already pointed out, clearly recognise
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the right of persons like the petitioners to receive
pension under the circumstances mentioned
therein.
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 [AIR 1962 Punj 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.
The Letters Patent Bench in its decision in
Union of India v. Bhagwant Singh [ILR (1965) 2
Punj 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 [AIR 1967 Punj
279]. 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 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
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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.
32. This Court in State of M.P. v. Ranojirao
Shinde [AIR 1968 SC 1053] had to consider the
question whether a 'cash grant' is 'property'
within the meaning of that expression in Articles
19(1)(f) and 31(1) of the Constitution. This
Court held that it was property, observing 'it is
obvious that a right to sum of money is
property'.
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. It may be that under the Pension
Act (23 of 1871) there is a bar against a civil
court entertaining any suit relating to the matters
mentioned therein. That does not stand in the
way of writ of mandamus being issued to the
State to properly consider the claim of the
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petitioner for payment of pension according to
law.""
15. In State of W.B. v. Haresh C. Banerjee [(2006)
7 SCC 651] this Court recognised that even when, after
the repeal of Article 19(1)(f) and Article 31(1) of the
Constitution vide Constitution (Forty-fourth
Amendment) Act, 1978 w.e.f. 20-6-1979, the right to
property no longer remained a fundamental right, it was
still a constitutional right, as provided in Article 300-A of
the Constitution. Right to receive pension was treated as
right to property. Otherwise, challenge in that case was to
the vires of Rule 10(1) of the West Bengal Services
(Death-cum-Retirement Benefit) Rules, 1971 which
conferred the right upon the Governor to withhold or
withdraw a pension or any part thereof under certain
circumstances and the said challenge was repelled by this
Court."
As per the aforesaid enunciation of law, it is clear that in
absence of any specific provision empowering the employer to
withhold the pension of an employee, the same cannot be
withheld.
11. That apart, the Allahabad High Court in WRIT-A
No.-66930/2013 [Rajeev Sharma Vs. State of U.P. & 3 Ors.]
had an occasion to deal with the issue as involved in the
present case and while elaborately discussing and considering
the various judgments of the Supreme Court as also of the High
Courts, it has been held by the Allahabad High Court that after
acquittal, there is nothing against the employee and moreso,
the respondents can initiate disciplinary proceeding even after
acquittal of that employee, but if that is not done, then it is not
open for the respondents to withhold the retiral dues merely on
the ground that the criminal appeal is sub judice before the
superior Court. The Allahabad High Court in the aforesaid case
has observed as under:-
"Supreme Court in State of Jharkhand and others vs.
Jitendra Kumar Srivastava and another [2014 (1) AWC
159 (SC)] considered as to whether in absence of any
provisions in the pension rules, State Government can
withhold a part of pension or gratuity during the
pendency of the departmental or disciplinary
proceedings. Paragraph 11 is as follows:-
15
W.P. No.13798/2013
"11. Reading of Rule 43(b) makes it abundantly
clear that even after the conclusion of the
departmental inquiry, it is permissible for the
Government to withhold pension etc. ONLY when
a finding is recorded either in departmental
inquiry or judicial proceedings that the employee
had committed grave misconduct in the discharge
of his duty while in his office. There is no
provision in the rules for withholding of the
pension/gratuity when such departmental
proceedings or judicial proceedings are still
pending."
Division Bench of this Court in State of U.P. and
others vs. Jai Prakash [(2014) 1 ADJ 207] relying upon
Supreme Court judgment held that pension would
include gratuity and the gratuity cannot be withheld
merely due to pendency of criminal case unless there is a
specific provision under the Rules. The Court was
dealing with the provisions of Civil Service Regulations,
1920, which provided for withholding of gratuity
Paragraphs 8, 9 and 10 are as follows:-
"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 another, 2009 (9) ADJ
45 (DB), 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 & Anr 2, 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
16
W.P. No.13798/2013
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)."
A Division Bench of this Court in writ petition
no.19693 of 2012 (Amrit Lal versus Chief Election
Officer and Others) decided on 1.8.2014 observed as
follows:
Firstly the pendency of the Criminal
Appeal filed by the State cannot be said to be a
valid ground for non payment of gratuity amount
and in any case after dismissal of the appeal on
17.5.2012, there can be further no justification for
not paying the gratuity amount.
The Supreme Court in Dev Prakash Tewari vs. U.P.
Cooperative Institutional Service Board [LAWS (SC)-
2014-6-14] was considering the case as to whether
disciplinary proceedings after retirement of an employee
could be continued in absence of any rule to that effect.
In paragraph 6 held as follows:-
"6 ..................
...................
Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits." In Corporation of the City of Nagpur versus Ramchandra (1981) 2 SCC 714, it is observed that it may not be expedient to continue a departmental enquiry on the very same charges or grounds or evidence, where the accused has been acquitted honourably and completely exonerated of the charges. At the same time, it is pointed out that merely because the accused is acquitted, the power of the authority concerned to continue the departmental enquiry is not taken away nor is its discretion in any way fettered. The same principle is reiterated in Commr. of Police versus Narender Singh (2006) 4 SCC 265.
17 W.P. No.13798/2013In Commr. of Police, New Delhi and another versus Mehar Singh (2013) 7 SCC 685, Supreme Court observed that "while the standard of proof in a criminal case is that of proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on par with a clean acquittal on merit after a full-fledged trial, where there is no indication of the witnesses being won over. In R.P. Kapur versus Union of India AIR 1964 SC 787 this Court has taken a view that departmental proceedings can proceed even though a person is acquitted when the acquittal is other than honourable.
"This Court observed that the expressions "honourable acquittal", "acquitted of blame" and "fully exonerated" are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression "honourably acquitted". This Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
Enquiry commences with the issue of charge-sheet as held in the case of Union of India vs. K.V. Jankiraman (AIR 1991 SC 2010), Union of India vs. Anil Kumar Sarkar, 2013 (4) SCC 161 and State of Andhra Pradesh vs. C.H. Gandhi, 2013 (5) SCC 111; Framing of the charge-sheet is the first step taken for holding enquiry into the allegations on the decision taken to initiate disciplinary proceedings. Service of charge- sheet on the Government servant follows decision to initiate disciplinary proceedings and it does not precede and coincide with that decision (vide Delhi Development Authority vs. H.C. Khurana 1993 (3) SCC 196). Once the enquiry was not initiated or contemplated or pending before the retirement, the same cannot be continued after retirement, unless there is a rule to that effect. The learned counsel for the respondents has failed to show any rule or circular as to whether disciplinary proceedings could be initiated after retirement and under what circumstances, the retiral dues be withheld after acquittal.
The Supreme Court in Mathura Prasad v. Union of India and others, (2007) 1 SCC (L&S) 292), held that when an employee is sought to be deprived of his livelihood for alleged misconduct, the procedure laid down under the rules are required to be strictly complied with:
"When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his 18 W.P. No.13798/2013 livelihood, the procedure laid down under the sub-rules are required to be strictly followed: It is now well settled that a judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in the manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact, for sufficient reasons may attract the principles of judicial review."
In a recent judgement rendered by Hon'ble Supreme Court in D.D Tewari (D) Thr.Lrs. versus Uttar Haryana Bijli Vitran Nigam Ltd. & Others in Civil Appeal No.7113 of 2014 decided on 1st August 2014. The Supreme Court made the following observation in paragraph 4 & 6:
4. It is an undisputed fact that the appellant retired from service on attaining the age of superannuation on 31.10.2006 and the order of the learned single Judge after adverting to the relevant facts and the legal position has given a direction to the employer-respondent to pay the erroneously withheld pensionary benefits and the gratuity amount to the legal representatives of the deceased employee without awarding interest for which the appellant is legally entitled, therefore, this Court has to exercise its appellate jurisdiction as there is a miscarriage of justice in denying the interest to be paid or payable by the employer from the date of the entitlement of the deceased employee till the date of payment as per the aforesaid legal principle laid down by this Court in the judgement referred to supra. We have to award interest at the rate of 9% per annum both on the amount of pension due and the gratuity amount which are to be paid by the respondent.
6.For the reasons stated above, we award interest at the rate of 9% on the delayed payment of pension and gratuity amount from the date of entitlement till the date of the actual payment. If this amount is not paid within six weeks from the date of receipt of a copy of this order, the same shall carry interest at the rate of 18% per annum from the date of amount falls due to the deceased employee. With the above directions, this appeal is allowed.
Applying the law on the facts of the case in hand, petitioner was falsely implicated in a criminal case for taking bribe of Rs.500 on 22.7.1991, was enlarged on bail on the same day, thereafter placed under suspension on 27.8.1991 and on 16.11.1992, the petitioner was reinstated in service but no departmental proceedings was ever initiated against the petitioner. The petitioner was acquitted in the criminal case on 14.3.2005, even after acquittal no departmental proceedings was initiated.
19 W.P. No.13798/2013On 30.4.2009, the petitioner retired. Thus mere pendency of Criminal Appeal would not entitle the respondents to withhold the post retiral benefits as the petitioner was acquitted and no proceedings was initiated by the respondents, further petitioner through out the trial continued in service until retirement.
Civil Service Regulation is applicable upon the employees of the power corporation, regulation 351 AA and regulation 919 A(3), prohibits payment of death- cum-retirement gratuity until the conclusion of departmental or judicial proceeding. Division Bench in Jai Prakash (Supra) has held "judicial proceedings"
would necessarily include pendency of criminal case. The question to be answered is as to whether pendency of criminal appeal, against acquittal, will include "pending judicial proceeding" In Amrit Lal (Supra), Division Bench observed pendency of criminal appeal against acquittal is not a ground for withholding the retiral dues. After acquittal there is nothing against the employee, more so, in the facts of the case, the respondents did not choose to initiate any disciplinary proceedings after acquittal nor did they examine the judgement of the trial court to find out, as to whether petitioner was acquitted 'honourably', once failing to exercise their powers under the rule to initiate any proceedings, it is not open for the respondents to withhold retiral dues, merely on pendency of criminal appeal.
The impugned order dated 22.11.2012 passed by Chief Engineer (Jal Vidyut), respondent no. 3 and order dated 6.6.2013 passed by Executive Engineer, Electricity Distribution Division, Pilibheet, respondent no. 4 is quashed.
The respondents are directed to release arrears of salary for the suspension period, retiral dues and terminal benefits of the petitioner within three months from the date of service of this order before the competent authority. Interest @ 9% is awarded on delayed payment of pension and gratuity from the date of entitlement to the date of actual payment, failing which same shall carry interest @ 18% per annum from the date the amount falls due."
12. Looking to the consistent view of the Supreme Court; the Division Bench of this Court and also of the Allahabad High Court, it is clear like a noon day that the retiral dues of an employee cannot be withheld merely because an appeal preferred by the employer against acquittal order of the employee is pending adjudication. Moreso, since despite having option to initiate disciplinary proceeding against the 20 W.P. No.13798/2013 petitioner, the respondents did not do so, therefore, they cannot take shelter of pendency of appeal for not finalizing the petitioner's retiral dues and as such, the action on the part of the respondents/Authority is unfounded and virtually arbitrary, illegal and contrary to law.
13. Keeping in view the discussion made hereinabove, this petition is allowed directing the respondents to finalize the petitioner's retiral dues and make payment within a period of 60 days from today, failing which, the petitioner shall be entitled to receive interest @ 8% per annum on the amount of arrears of retiral dues till its actual payment made to him.
14. Ex consequntia, the petition filed by the petitioner stands allowed and disposed of.
(SANJAY DWIVEDI) JUDGE Devashish DEVASHISH MISHRA 2021.12.07 14:50:12 +05'30'