Allahabad High Court
Union Of India And 2 Others vs Munna Singh on 5 November, 2019
Bench: Pankaj Mithal, Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 29 Case :- WRIT - A No. - 62309 of 2017 Petitioner :- Union Of India And 2 Others Respondent :- Munna Singh Counsel for Petitioner :- Sanjeev Singh Counsel for Respondent :- Ashok Kumar Singh,Ashok Kumar Singh,Vinod Kumar Singh Hon'ble Pankaj Mithal,J.
Hon'ble Vivek Agarwal,J.
This writ petition has been filed by the Union of India and its instrumentalities being aggrieved by the order dated 15.09.17 passed by the learned Central Administrative Tribunal, Allahabad Bench at Allahabad in Original Application No. 240 of 2014 (Munna Singh vs. Union of India and Others) whereby learned Tribunal has allowed the original application filed by Munna Singh quashing the impugned orders/letters dated 17.10.2012, 03.12.2012 and 02.04.2013 vide which the petitioner was denied the benefit of M.A.C.P. as well as gratuity and commutation of pension due to pendency of criminal cases against him.
The case of the petitioner before the Tribunal was that the petitioner was appointed as Fire Engine Driver, Grade-II in the year 1978 and was permitted to seek voluntary retirement with effect from 23.07.2011.
The petitioner on the date of the voluntary retirement has completed 32 years, 10 months and 10 days of service but the petitioner was denied payment of gratuity totalling Rs. 3,15,351/- and commutation of pension to the extent of Rs. 2,60,452/-.
The petitioner further claims that his pension has been wrongly fixed treating his grade pay to be Rs. 2,400/- whereas if the M.A.C.P. would have been allowed then he would have been entitled to a grade pay of Rs. 4,200/-.
Learned counsel for Union of India submits that the Tribunal erred in relying on the provisions contained in Section 4(1) and Section 4(6) of the Payment of Gratuity Act, 1972 overlooking the provisions contained in the Central Civil Services (Pension) Rules, 1972 which holds the field and governs the payment of gratuity of a public servant.
It is further submitted that the F.I.R. was registered against the petitioner under provisions of Sections 420/467/468/471/506 of I.P.C. at Police Station- Naubasta, District- Kanpur and a complaint was received from Mrs. Raj Rani wife of Late Shyam Lal intimating registration of Crime No. 580 of 2009 dated 28.07.2009.
The Field Gun Kanpur (F.G.K.) after receipt of the report from the police station regarding registration of a criminal case against the petitioner had called for his explanation as to why no intimation was given to the department in regard to the registration of the said F.I.R. thus enabling the employer to take action under the provisions of Rule 10(1)(b) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In the meanwhile, another F.I.R. was lodged registering Crime No. 524 of 2010 under the provisions of Sections 341 and 506 of I.P.C. at Police Station- Naubasta, District- Kanpur.
Learned counsel for Union of India has only challenged that part of the order passed by the Central Administrative Tribunal which deals with quashing the impugned orders withholding the gratuity on account of pendency of criminal cases. Learned counsel for the Union of India submits that the tribunal has erred in referring to the provisions contained in Section 4(1) and (6) of the Payment of Gratuity Act, 1972 as provisions of that Act of 1972 are not applicable to the case of the petitioner in view of the fact that the petitioner being an employee governed by the provisions contained in the Central Civil Services (Pension) Rules, 1972 will be wholly covered by operation of such rules which have been framed in exercise of the authority vested in the Government by operation of Article 309 of the Constitution.
It is submitted that Rule 69(1)(c) clearly provides that no gratuity shall be paid to the government servant until the conclusion of the departmental or judicial proceedings and issue of final order thereon. It is submitted that since criminal cases are pending against the petitioner and they have in facet of moral turpitude but is viewed to be serious in nature, therefore, overlooking such pendency of criminal cases in the name and garb of having no connection with the discharge of the official function has rendered, the order passed by the Tribunal to be otiose.
Learned counsel for the respondent in its turn submits that there is no fault or shortcoming in the impugned order and it does not call for any interference, therefore, the writ petition deserves to be dismissed.
After hearing the arguments of learned counsel for the parties and going through the record, certain facts are not in dispute namely pendency of criminal cases under the provisions of Sections 420, 467, 468, 471, 506 of the I.P.C. so also another case under the provisions of Section 341 and 506 of the I.P.C. It is also an admitted position that these cases were filed before the petitioner sought voluntary retirement w.e.f. 23.07.2011.
It is now no more res-integra as has been held by the Full Bench of this Court in case of Shivagopal vs. State of U.P. and 4 Others in Special Appeal No. 40 of 2017 as decided on 08.05.2019 that gratuity is part of the pension and it cannot be segregated from the pension.
It is also settled principle of law as has been held by Full Bench of this Hon'ble Court that a government employee is not entitled to death-cum-retiral gratuity unless the conclusion of departmental proceedings or the enquiry by the Administrative Tribunal or judicial proceedings which includes both the civil and criminal. The only exception which can be carved out is provided in the form of a proviso below Rule 69(1)(c) of the Central Civil Services (Pension) Rules, 1972 which provides that if the departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said Rules, the payment of gratuity shall be authorized to be paid to the government servant.
In view of such specific provisions, the only exception entitling a government servant to claim gratuity during the pendency of the departmental proceedings is that such departmental proceedings should have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 for imposing any of the minor penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said Rules. Since pendency of a criminal case does not fall in the category of any of the penalties specified in Rule 11 above, no gratuity can be paid to the government servant until the conclusion of the judicial proceedings. In view of such facts and the law settled by Hon'ble Full Bench of this Court, we are of the opinion that the order passed by learned Central Administrative Tribunal in relation to release of gratuity has failed to take into consideration the comprehensive provisions of Rule 69(1)(c) and also the law on the subject.
Therefore, in our opinion withholding gratuity is concerned, the act of the petitioner is fully justified and could not have been released until completion of the judicial proceedings in relation to the registration of criminal cases against the petitioner. Thus to that extent order of the Central Administrative Tribunal deserves to be set aside and is set aside and it is directed that though the petitioner-Union of India shall consider the claim of the respondent for release of M.A.C.P. and other consequential benefits in the light of service jurisprudence but as far as gratuity is concerned that cannot be released during the pendency of criminal trial in terms of the provisions contained in Rule 69(1)(c) of the Central Civil Services (Pension) Rules, 1972.
Thus, the petition is allowed in part as indicated above.
Order Date :- 5.11.2019 Vikram/-