Allahabad High Court
Ram Kunwar Bhoriya vs State Of U.P. And 3 Ors on 10 December, 2014
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 59 Case :- WRIT - A No. - 61683 of 2014 Petitioner :- Ram Kunwar Bhoriya Respondent :- State Of U.P. And 3 Ors Counsel for Petitioner :- Gopal Misra,Babit Kumar Counsel for Respondent :- C.S.C. Hon'ble Rajan Roy,J.
Heard Sri Gopal Misra, learned counsel for the petitioner and Sri H.C. Pathak, learned Standing Counsel for the State.
Supplementary affidavit filed by the petitioner today is taken on record.
As the facts are not much in dispute, therefore, I do not find any need to call for a counter affidavit from the respondents.
The moot question which falls for consideration in this case is as to whether the Senior Superintendent of Police, Muzaffar Nagar was empowered to withhold the payment of gratuity to the petitioner, temporarily, on account of the pendency of a criminal case against him, if so, whether the exercise of such power was valid.
The petitioner herein retired from Government Service as Sub Inspector in the U.P. Police Department. While in service an FIR was lodged on 28.05.1999 under Section 392 IPC against two unknown persons. Subsequently, an investigation in the matter was ordered by the Circle Officer, who is said to have submitted a report exonerating the petitioner from any involvement in the incident relating to the said FIR. However, the Investigating Officer, who was of the rank of Sub Inspector filed a charge-sheet in a Court of criminal jurisdiction naming him as one of the accused. The said proceedings before the Court concerned were challenged before this High Court by means of an application under Section 482 Cr.P.C., whereupon, the same were stayed by the order dated 24.07.2001. The criminal proceedings remained stayed till the said application was dismissed on 15.03.2011. The petitioner retired from service on 31.10.2014. Prior to his retirement the impugned order dated 02.09.2014 was passed by the Senior Superintendent of Police, Muzaffar Nagar, sanctioning the grant/release of post retiral benefits, except the gratuity, which was withheld on account of pendency of Case Crime No.49 of 1999 under Section 392 IPC in district Farrukhabad.
The contention of learned counsel for the petitioner is that in view of the Division Bench judgment of this Court in Bhagwati Prasad Verma's case, the gratuity could not be withheld. Moreover, he submits that considering the facts of the criminal case it is highly unlikely that the same will result in his conviction, therefore, a mechanical order of withholding of gratuity was not warranted, the concerned authority ought to have considered the facts of the case before passing such an order. He especially referred to the report of the Circle Officer annexed with the supplementary affidavit filed today, wherein, it was held that the petitioner was not at all involved in the said incident, but, surprisingly an Officer of lower rank, who was the Investigating Officer, submitted the charge-sheet against him before the Court of competent jurisdiction. He further submitted that assuming the charges levelled against him are ultimately found to be true, they do not constitute any pecuniary loss having been caused to the State warranting stopping or recovery of the same under the relevant provisions.
Learned Standing Counsel on the other hand submits that gratuity cannot be paid to the petitioner in view of the provisions contained in Article 919(A) of the Civil Service Regulation as considered and explained by the Division Bench of this Court in Special Appeal Defective No.1278 of 2013 as the said provision empowers the competent authority to withheld the same during the pendency of judicial proceedings.
Regulation 919(A) of the Civil Service Regulations reads as under:-
"919-A. (1) In case referred to in Regulation 351-AA the Head of Department may authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government servant or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was placed under suspension.
(2) The provisional pension shall be authorised for the period commencing from the date of retirement upto and including the date on which after conclusion of departmental or judicial proceeding or the enquiry by the administrative Tribunal; as the case may be, final orders are passed by the competent authority.
(3) No death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings or the enquiry by the Administrative Tribunal and issue of final orders thereon.
(4) Payment of provisional pension made under clause (1) above shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of the proceedings or enquiry referred to in clause (3) but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or withheld either permanently or for special period."
Sub Rule 3 thereof, as referred herein above, clearly imposes an embargo upon payment of death-cum-retirement gratuity to the Government Servant until the conclusion of departmental or judicial proceedings or the inquiry by the Administrative Tribunal and issuance of final orders thereon.
The scope and purport of the aforesaid provisions was considered by the Division Bench of this Court in Jai Prakash's case while considering the Special Appeal against a judgment of a learned Single Judge of this Court setting aside the action of the concerned authority in withholding the payment of gratuity on account of pendency of a criminal proceedings.
Paragraph 7 and 8 of the said judgment is being quoted hereunder:-
"7. Now, regulation 351 reserves to the State Government the right to withhold or withdraw pension or a part thereof upon a pensioner being convicted of a serious crime or being guilty of a grave misconduct. Conviction of a serious crime within the meaning of regulation 351 postulates that after a criminal trial, a pensioner has been found guilty of an offence involving a serious crime. In other words, there has to be a judicial determination by which the pensioner is convicted of a serious crime. Regulation 351-A reserves to government the right to withholding or withdrawing of pension and the right to order a recovery from the pension, if a pensioner is found in departmental or judicial proceedings to be guilty of grave misconduct or to have caused a pecuniary loss to the Government by his misconduct or negligence. Hence, regulation 351-A operates in two areas:
(i) if the pensioner is found in departmental or judicial proceedings to be guilty of grave misconduct;
or
(ii) if the pensioner is found in departmental or judicial proceedings to have caused pecuniary loss to the government by his misconduct or negligence, during service or on re-employment.
Government has the power to withhold or withdraw the pension and a power to recover any pecuniary loss suffered. Regulation 351-A postulates that there has to be a determination in departmental or judicial proceedings. Regulation 351-AA deals with a situation where a departmental or judicial proceeding or any enquiry by the Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement in which case a provisional pension under regulation 919-A may be sanctioned. Where a departmental or judicial proceeding is pending on the date of retirement, regulation 351-AA stipulates that a provisional pension would be admissible and the modalities for the payment of a provisional pension are prescribed under regulation 919-A. Regulation 919-A (1) makes a reference to the situation which is referred in regulation 351-AA and authorises the payment of a provisional pension by the Head of Department. The provisional pension is to be authorised for the period commencing from the date of retirement upto and including the date of conclusion of departmental or judicial proceedings or, as the case may be, the enquiry by the Administrative Tribunal. Regulation 919-A (3) contains an expression prohibition on the payment of death-cum-retirement gratuity to a government servant until the conclusion of the departmental proceeding, judicial proceeding or as the case may be, an enquiry by the Administrative Tribunal. Regulation 41 provides that except when the term 'Pension' is used in contradistinction to gratuity, 'Pension' would include gratuity. Consequently, regulation 919 (3) which contains a bar on the payment of gratuity till the conclusion of a departmental or judicial proceeding would allow the payment of a provisional pension stipulated in clause (1) of regulation 919-A.
8. The learned Single Judge, in the present case, has proceeded on the basis that neither in regulation 351 nor in regulation 351-A is a withholding of gratuity contemplated during the pendency of a judicial proceeding. The learned Single Judge, with respect, has overlooked the provisions of regulation 351-AA and a specific bar which is contained in regulation 919-A (3). In view of the specific prohibition which is contained in regulation 919-A (3), no death-cum-retirement gratuity would be admissible until the conclusion of a departmental or judicial proceeding. The expression 'judicial proceeding' would necessarily include the pendency of a criminal case."
The Division Bench also took note of the another Division Bench judgment of this Court in the case of Shri Pal Vaish Vs. U.P. Power Corporation Ltd., reported in 2009(9) ADJ 45 and a recent judgment of the Hon'ble Supreme Court in the case of State of Jharkhand and others Vs. Jitendra Kumar Srivastava and another, reported in JT 2013 (11) SC 351 and held that in view of the specific provisions contained in Regulation 351-AA read with Regulation 919-A gratuity is not payable to a Government Servant during pendency of criminal proceedings and only provisional pension is payable. The judgment of learned Single Judge was accordingly set aside.
In this context learned counsel for the petitioner has placed reliance upon another Division Bench judgment of this Court in the case of Bhagwati Prasad Verma Vs. State of U.P. & others passed in Civil Misc. Writ Petition No.52482 of 2003 decided on 10.09.2007, wherein this Court considered the provisions of Rule 10 of U.P. Liberalization Pension Rules, 1961 and Rule 9 of U.P. Retirement Benefit Rules, 1961 and came to the conclusion that the payment of gratuity could not have been stopped by the concerned Officer as also that the term pension used in Article 351-A of the Civil Service Regulation did not include gratuity. The action impugned therein was quashed also on the ground that the manner in which power was exercised, was not sustainable as it was not in accordance with the principles of natural justice as also other mandatory statutory provisions.
On consideration of the said judgment, I find that the issues involved therein were different from the one involved herein. In that case, the departmental proceedings had been concluded and thereafter the action impugned had been taken. It is in this light that Rule 9 & 10, referred herein above, were considered. It was not a case where the gratuity was temporarily withheld on account of pendency of departmental or judicial proceedings. Moreover, Rule 9 & 10 of the above mentioned Rules of 1961 relate to recovery of gratuity and family pension i.e. the action contemplated therein, is, after the conclusion of the departmental and judicial proceedings, therefore, the said provisions apply to a different fact situation. The Division Bench in Bhagwati Prasad Verma's case did not have the occasion to consider Article 919-A Sub Rule 3 which directly deals with the issue of withholding of gratuity during pendency of such proceedings. It is not in dispute that the provisions contained in Civil Service Regulations are also applicable in matters pertaining to the payment or withholding of pension, gratuity etc. The Division Bench judgment in Bhagwati Prasad Verma's case does not lay down any proposition of law to the contrary. In fact, a perusal of the same reveals that it impliedly accepts the application Civil Service Regulations also for the purpose of withholding of pension under Article 351-A and opines that so far as withholding of gratuity, family pension are concerned, the same could be done only under the aforesaid Rules of 1961.
The subsequent Division Bench judgment in the case of Shri Pal Vaish (Supra), after considering the earlier judgment in the Bhagwati Prasad Verma's case, has categorically held that gratuity could be withheld on account of pendency of criminal proceedings in a Court in view of the provisions contained in Article 919-A(3) and it has also held that Bhagwati Prasad Verma's case dealt with a different issue and was not applicable with regard to the field in which Article 919-A(3) operates. It also held that the word 'pension' used in Article 351 includes gratuity.
Paragraph 15 of the said judgment is being quoted hereunder:-
"15. The provisions of the aforesaid rule 10(1) of the U.P. Liberalised Pension Rules and 9(1) of the Retirement Benefit Rules, 1961 apply to a case of recovery where gratuity or family pension has already been sanctioned. Clause 3 of Regulation 919-A specifically provides that no death-cum-retirement gratuity shall be paid to the government servant until the conclusion of the departmental or judicial proceedings. The effect of class 3 of Regulation 919 A is that the question of sanction of gratuity to a person against whom on the date of his retirement a criminal case or disciplinary proceedings were pending, would not arise. The Apex Court in State of U.P. & Others Vs. Harihar Bhole Nath JT 2006(9) 567 has observed in para 16 that pension cannot be sanctioned as a matter of course in view of Regulation 470 of the Civil Service Regulations and can be withheld if the services of the employee are not satisfactory. We are in respectful agreement with the view of the Division Bench in Bhagwati Prasad Verma (supra) case that the provisions of the U.P. Liberalized Pension Rules and Retirement Benefit Rules are special provisions. They were also enacted later and would therefore prevail over the Civil Service Regulations. However, it is clear from the provisions of Rule 9 of the U.P. Retirement Benefit Rules 1961 and Rule 10 of U.P. Liberalized Pension Rules 1961 that these provisions for recovery would be applicable only where gratuity has been sanctioned. These Rules 9 and 10 of the aforesaid Rules do not cover the subject of payment of gratuity during the pendency of the departmental or judicial proceedings. Clause (3) of Regulation 919-A is a provision which specifically deals with this subject and in view of this provision, payment of death-cum-retirement gratuity has to be deferred until the conclusion of the departmental or judicial proceedings. The Division Bench in Bhagwati Prasad Verma's case (supra) was not dealing with the cases where departmental or judicial proceedings may have been pending. That was a case where the departmental proceedings had been concluded. The decision in Bhagwati Prasad Verma case (supra) therefore is distinguishable. No doubt the provisions of Rule 9 (1) of U.P. Retirement Benefit Rules 1961 and Rule 10 of U.P. Liberalized Pension Rules 1961 would prevail in the matter of recovery from pension sanctioned but in respect of other matters including stoppage of pension and gratuity during pendency of departmental or judicial proceedings the Civil Service Regulation would continue to apply. There however appears to be nothing in Rule 10 (1) of the Liberalised Pension Rules 1961 or in Rule 9 (1) of the U.P. Retirement Benefits Rules, 1961 which may militate against interpreting the word ' pension' in Regulation 351A to include gratuity. These 1961 rules rather provide that the Governor has a right to make recovery from gratuity or family pension in similar circumstances as recoveries can be effected from ordinary pension under Article 351A of the Civil Service Regulations. The words "gratuity" and "pension" in rule 10 (1) and Rule 9 (1) have no doubt been used in contradistinction to each other but that contradistinction is not to be found in Regulation 351A. It appears that the provisions of clause 3 of Regulation 919-A supplement Regulation 351-A. Regulation 919-A operates during the period of pendency of departmental or judicial proceedings whereas Regulation 351-A is of wider scope and covers also final orders of recovery forfeiture or withholding of pension and gratuity. This conclusion that the word pension in Regulation 351-A includes gratuity in our opinion flows out of a reading of Regulation 351-A together with the definition of pension in Regulation 41, the provision of gratuity in regulation 474 which deals with amount of pension and the inclusion of regulation 474 in Part III which bears the heading 'Ordinary Pension' as also from the scheme of Regulation 919-A and the decisions of the Apex Court in Jarnail Singh's case where a similar definition of pension in the Central Civil Service Pension Rules was involved and from the observations of the apex court in paragraph 11 of the reports in State of U.P. And others Vs. Harihar Bhole Nath [JT 2006 (9) SC 567] that Regulation 351-A takes care of recovery of pecuniary loss from pension and gratuity. We are bound by the decisions of the Apex in Harihar Bhole Nath and Jarnail Singh and would therefore follow these decisions. It appears that the provisions of the Regulation 474 of the Civil Service Regulations and those of Regulation 919-A were not brought to the notice of the Division Bench in Bhagwati Prasad Verma (Supra) case. We are however in agreement with the view taken therein that in matters of recovery of gratuity and family pension Rules 10 and 9 respectively of the Liberalized Pension Rules, 1961 and Retirement Benefit Rules 1961 which are special provisions and were enacted after Regulation 351-A would prevail. This interpretation however does not affect the view we have taken that the word 'pension' in Regulation 351-A includes gratuity. Moreover there appears to be no inconsistency between the provisions for recovery under the 1961 Rules and Regulation 351-A. The 1961 Rules rather provide that recovery thereunder would be permissible in the same circumstances as provided under Regulation 351-A. So far as the present case is concerned it is clear that under the provisions of Regulation 919-A the petitioner is not entitled to payment of gratuity during the pendency of the criminal case. The provisions/Regulation 919-A have been enacted after the 1961 Rules. In view of the undisputed position that the criminal case is pending against the petitioner no case for interference under Article 226 has been made out."
The said judgment in Shri Pal Vaish's case was considered by the Division Bench of this Court in Jai Prakash's case decided on 07.12.2013 which has already been referred herein above.
In view of the above discussion, there is no doubt that the Senior Superintendent of Police, Muzaffar Nagar was empowered under Article 919-A(3) to withhold the gratuity payable to the petitioner, temporarily, during the pendency of the judicial proceedings.
The next question which remains to be considered is the validity of the exercise of power. It is trite that the vesting of power is one thing and the exercise of power is entirely different thing. If an authority has the power to do a certain thing but does not exercise the said power as per the accepted norms and parameters then such exercise of power can be invalidated. In this context, it is relevant to refer to another Division Bench judgment of this Court rendered in Special Appeal Defective No.416 of 2014 (State of U.P. & others Vs. Faini Singh), wherein, the judgment of the Division Bench in Jai Prakash's case was considered and affirmed, but, while doing so in paragraph 10 of the said judgment, the Court observed that the discussion in Jai Prakash's case opens up another question to be considered, namely, whether the power under Section 351-AA read with Regulation 919 can be used mechanically on the pendency of any judicial proceedings against the Government Servant. Without considering the allegations against the retired Government Servant, and would empower the competent authority to withhold the gratuity and full pension.
The Court observed that the power vested in the authority has to be utilized bonafidely for the purpose of which such power is given. The discretion given should not consume the power for which such discretion is to be exercised. The Court further opined that existence of power by itself does not justify the exercise of powers. Considering the facts of the said case the action impugned before it was quashed. The relevant extracts of the said judgment are being quoted herein below:-
"16. We also find that Regulations 351 and 351A of Civil Service Regulation provide guidelines for exercise of powers to withhold the retiral dues. Regulation 351 provides that if the pensioner is convicted of a serious crime or being guilty of a grave misconduct the State Government reserves the right of withholding or withdrawing a pension or any part of it. Regulation 351A is thus attracted where a person is convicted. Regulation 351A is applicable where the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the government by misconduct or negligence during his service including the services rendered on reemployment after retirement. Regulation 351A is thus applicable in a case where a person is found in a departmental or judicial proceedings to be guilty of grave misconduct or to have caused pecuniary loss to the government. Regulation 919A authorises grant of provisional pension in the cases referred in Regulation 351AA. A combined reading of these regulations would go to show that the powers of withholding or withdrawing pension to be used in the cases where there are no allegations of serious crime or grave misconduct or any pecuniary loss caused to the government by misconduct or negligence during his service including services rendered on reemployment after retirement.
17. The object of these powers clearly demonstrates that these powers have to be exercised with circumspection and caution and have to be utilised for the purposes for which they have been vested in the State Government. Such powers cannot be used mechanically on the pendency of any judicial proceedings. The delay in judicial proceeding is also required to be taken into consideration and counted for the purposes of exercise of such powers.
18. The allegations against the petitioner relate to a loan taken by one Shriram of which he was the guarantor. The evidence was collected by the CID regarding giving of some amount by Shriram to the petitioner from his bank account. There are no allegation in the first information report which may attribute any act of deception or fraud on the part of Faini Singh. Even if he was beneficiary of the loan, which was taken by playing fraud, he had deposited the entire amount as the guarantor when he received a show cause notice. These circumstances were neither examined nor considered by the competent authority while exercising powers under Regulation 351AA read with Regulation 919A in withholding the gratuity and in withholding pension to be paid to him.
21. We may point out that a mere pendency of any judicial proceeding cannot be a ground to exercise the powers under Article 351AA read with Regulation 919A for withholding the retiral dues. The nature of allegations and the gravity of charge has to be taken into consideration by the competent authority before making an order to withhold the retiral dues. In case the pendency of any judicial proceeding is held to be sufficient, a minor offence or even a parking ticket may be a ground to withhold the pension of a retired employee. Such a situation is not contemplated under the powers conferred on the competent authority under the Civil Services Regulations."
In view of the above, it is evident that the provisions contained in Rule 9 & 10 of Rules 1961 as also Regulation 351-A are applicable on the conclusion of departmental or judicial proceedings but during the pendency of such proceedings it is the provision contained in 351-AA and 919 which are applicable.
Now considering the facts of the case against the aforesaid backdrop, I find that the order impugned herein is an order by which the post retiral benefits of the petitioner have been sanctioned and in this context a reference has been made with regard to withholding of the gratuity payable to the petitioner on account of pendency of a criminal case against him. The order does not at all stand the test laid down by the Division Bench in Faini Singh's case. As already held, the Officer had power to take such action but the manner in which the power has been exercised does not confirm to accepted norms. The impugned order does not disclose any application of mind to the facts of the case. There is no discussion of the same. It is a cryptic order bereft of any reasons.
In these circumstances, the action of the respondent in withholding the gratuity of the petitioner cannot be sustained. The impugned order to this extent is quashed. The matter is remanded back to the Respondent No.4 to take a fresh decision regarding withholding of gratuity of the petitioner in light of the discussion made herein above and the judgments referred therein. This shall be done within a period of three months from the date a certified copy of this order is produced before him.
With the aforesaid observation and subject to the above, the writ petition is allowed, partly.
Order Date :- 10.12.2014 pks