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1997 DIGILAW 1343 (ALL)

GUM CHARAN SINGH BAGGA v. STATE OF U P

1997-11-07

O.P.GARG

body1997
O. P. GARG, J. By means of the present writ petition under Article 226 of the Constitution of India, the petitioner-Gur Charan Singh Bagga has prayed that the letter, a copy of which is Annexure 9, which was received by him in the month of March, 1995, be quashed and the respon dents be directed to pay service gratuity, service pension, group insurance amount, G. P. F. , commuted value of pension, along with interest there on at the rate of 12% per annum. It is also prayed that the respondents be directed to pay arrears of honorarium @ Rs. 25 per month w. e. f. January, 1989 till the date of superannua tion and also refund the loan of Rs. 5, 000 taken by the Department from the petitioner, with interest. Counter and rejoinder-affidavits have been exchanged, heard Sri B. N. Rai, learned Counsel for the petitioner as well as learned Standing Counsel for the respondents. 2. The petitioner was serving as Ac counts Clerk in N. C. C. Group Head quarters, Kanpur. He retired in August, 1994 and submitted relevant papers along with no Dues Certificate on 16-8-1994 for release of his pension and other claims. there after, the petitioner has been making representations and sending reminders but his claims have not been settled. A letter, Annexure 9 was ad dressed by the Director, Pension Direc torate, U. P. Lucknow to Group Com mander, N. C. C. Headquarters, Kanpur in timating that the pension papers are in complete and that the matter could not be finalised as certain proceedings of fraudulent withdrawal and embezzlement of a sum of Rs. 1, 63, 550 are pending against the petitioner. It appears that on account of this letter, pensionary benefits of the petitioner could not be cleared. It is alleged that by order dated 1-2-93 the petitioner was not held liable or respon sible for embezzlement and was partially held guilty for not scrutinising the month ly return of expenditure for the month of September, 1994. The departmental proceedings culminated in the censure entry. 3. Counter-affidavits have been filed in this case. It is alleged that by order dated 1-2-93 the petitioner was not held liable or respon sible for embezzlement and was partially held guilty for not scrutinising the month ly return of expenditure for the month of September, 1994. The departmental proceedings culminated in the censure entry. 3. Counter-affidavits have been filed in this case. One of the counter-affidavit has been filed by Sri S. K. Sharma, Assis tant Accounts Officer (Pension)-respondent No. 2, in which it has been asserted that final pension and gratuity is not pay able to a retired government servant against whom departmental proceedings or criminal trial is pending before a court and since the petitioner is involved in criminal case of embezzlement of Rs. 1, 63, 550 the matter relating to final pen sion and gratuity could not be cleared. In another counter-affidavit, Sri S. K. Sharma has taken the stand that though the departmental enquiry stands concluded with the punishment of censure, a charge-sheet has been submitted against the petitioner for embezzlement, in the Court. It has also been averred in the counter-af fidavit that: ". . . . . . The office of the deponent has no objection in release of pension and gratuity amount but because of a vague and non- com mittal reply being provided to the office of the deponent making reference of a charge-sheet filed and a criminal proceeding regarding em bezzlement of Rs. 1, 63, 550 the office of the deponent is in a dilemma as to how to dispose of the pension case of the petitioner. Despite these correspondence cited above and also several conversation. with the concerned authority of the N. C. C. Department, Kanpur required clarification is not forthcoming and which is handicap of the office of the deponent in dispos ing of the pension case. As soon as the office of the Respondent No. 3 gives us a clean chit that no criminal case is pending against the petitioner with regard to embezzlement of Rs. 1, 63, 500 the office of the deponent would be eager to dispose of the pension case to obviate hardship to the petitioner. . . . . . " 4. Lt. Col. 1, 63, 500 the office of the deponent would be eager to dispose of the pension case to obviate hardship to the petitioner. . . . . . " 4. Lt. Col. J. B. Singh, the then com manding Officer, N. C. C. Group Head quarters has also filed counter- affidavit and the stand taken there in is more or less the same as has been taken by Sri S. K. Sharma, Assistant Accounts Officer (Pen sion ). 5. Learned Counsel for the petitioner has pointed out that the departmental en quiry has been concluded against the petitioner in which he was not found responsible or in any manner involved in the embezzlement of the amount and that no criminal case is going on against the petitioner and, therefore, now there is no impediment in the release of amount of pension and gratuity in favour of the petitioner. With the rejoinder-affidavit, a copy of the letter of April, 1996 addressed by Major P. N. Shukla, Deputy Director N. C. C. Directorate, U. P. , Lucknow to N. C. C. Group Headquarters Kanpur regarding the settlement of pen sion/gratuity payable to the petitioner, has been filed as Annexure R. A. 1 in which the position has been clarified as below: "2. You are advised to clarify the pension Directorate U. P. Lucknow that Sri G. S. Bagga Ex-Accounts Clerks was involved in a fraud case of Govt. money. The Departmental inquiry was conducted against him and he was found guilty only to the extent that he has not submitted the monthly return expenditure for the month of September 84 and also not verified the drawals from the Treasury and State Bank of India, Kanpur being an Accounts Clerk. The individual was awarded the punishment of censure for this lapse. No embezzlement has been done by Sri G. S. Bagga and as such no recovery order has been passed against him. Thus, there is noth ing outstanding against Sri G. S. Bagga. Further, the CBI has not filed any case against him in the Court. In view of the above the case of Sri G. S. Bagga be settled at the earliest. " 6. Now, the admitted position is that the petitioner has been finally exonerated of the charge of embezzlement in the departmental enquiry. After investigation of the case. Further, the CBI has not filed any case against him in the Court. In view of the above the case of Sri G. S. Bagga be settled at the earliest. " 6. Now, the admitted position is that the petitioner has been finally exonerated of the charge of embezzlement in the departmental enquiry. After investigation of the case. No charge-sheet has been sub mitted against the petitioner and as it is, the petitioner is not being prosecuted in any court for the offence of embezzlement. In view of the clarification contained in the letter of April, 1996, as quoted above, the petitioner is entitled to the release of the amount of pension as well as gratuity. The petitioner has claimed interest at the rate of 12% per annum. In view of the law laid down by Supreme Court in AIR 1988 S. C. 195, D. S. Nakara v. Union of India, (1985) 50 FLR 145, State of Kerala v. N. Pad- manabhan Nair and (1994) 69 FLR 1137, R. Kapoor v. Director of Inspection, Income Tax. The petitioner is entitled to interest on the outstanding amount of gratuity and pension from the date on expiry of two months on which the disciplinary enquiry was concluded against the petitioner. 7. As regards the claim for honorarium and the refund of Rs. 5, 000 alleged to have been taken by the Depart ment as loan from the petitioner, the respondents shall look into these claims and decide the same by a speaking order with in one month from the date of produc tion of a certified copy of this judgment. 8. In the result, the writ petition is partly allowed with the direction that the respondents hall release the amount of pension and gratuity of the petitioner with interest at the rate of 12 per cent per annum to be calculated from the date on expiry of two months on which the discipli nary enquiry was concluded against the petitioner. The payment of pension and gratuity shall be finalised and made to the petitioner with in two months from the date of production of a certified copy of this judgment. Petition party allowed. .