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Allahabad High Court · body

2010 DIGILAW 1819 (ALL)

MARKANDEY SINGH YADAV v. STATE OF U. P.

2010-05-28

K.N.PANDEY, SUNIL AMBWANI

body2010
JUDGMENT By the Court.—We have heard Shri R.K. Ojha for the petitioner. Learned Standing Counsel appears for the respondents. 2. The petitioner retired as Deputy Superintendent of Police serving in the Police Department on 31.1.2004. By this writ petition he has prayed for direction to quash the order dated 7.11.2007 passed by the Finance Controller, U.P. Police Headquarter, Allahabad in pursuance of the directions issued by this Court on 2.8.2007 in Writ Petition No. 3547 of 2007, rejecting the petitioner’s representation for payment of gratuity, leave encashment and for finalising his pension. 3. The gratuity and leave encashment have been held up and the pension has not been finalised on the ground that the petitioner is an accused at Sl.No. 48 in a chargesheet No. 43A/2007 dated 13.7.2007 under Sections 147, 149, 504, 506, 323, 427, 342, 452, 353, 365 and 109 IPC pending before the Judicial Magistrate-1 Lucknow and in which the Court has taken cognizance. 4. The petitioner was posted as Inspector, Husain Ganj on 2.6.1995, when he was placed under suspension on the ground of negligence in performance of his duties in the Guest House Incident at Meerabai Marg, Lucknow. His suspension was revoked on 21.11.1995 by the Senior Superintendent of Police, Lucknow. 5. The Guest House Incident involved leaders of political parties, filing cases against each other in the background in which Ms. Mayawati had withdrawn the support from the State Government headed by Shri Mulayam Singh Yadav. An FIR was lodged on 2.6.1995 by MLAs of the Bahujan Samaj Party registered as Crime No. 419 of 1995, 423 of 1995 and 425 of 1995. On 3.6.1995 Ms. Mayawati assumed office of Chief Minister. On 4.6.1995 an FIR was lodged registering Crime No. 426 of 1995 by Shri Barkhu Ram Verma, MLA, BSP and investigation of Crime No. 423 of 1995, 424 of 1995 and 425 of 1995 were transferred to CBCID. After investigation a chargesheet was filed in the Court of Sessions Judge, Lucknow. A criminal case was also registered as Case No. 7 of 1995, State v. Atiq Ahmad in the Court of Sessions Judge, Lucknow. The accused persons filed criminal revisions challenging the order dated 9.8.1995. A petition under Section 482 CrPC was filed to quash the orders. The petitions were disposed of with directions to file objections to be disposed of by the Court. The accused persons filed criminal revisions challenging the order dated 9.8.1995. A petition under Section 482 CrPC was filed to quash the orders. The petitions were disposed of with directions to file objections to be disposed of by the Court. On 28.5.1997 the Sessions Judge gave a finding that since no sufficient material is available for proceeding for an offence under Section 13 (1) (d) of the Prevention of Corruption Act read with Section 120-B IPC the charge sheet may be returned for presentation to the Magistrate competent to take cognizance. The Chief Judicial Magistrate took cognizance on 9.11.1995 on supplementary chargesheet filed by CBCID under Sections 3, 4 and 6 of SC & ST Act. 6. In Criminal Case No. 1512 of 2003, Beni Prasad Verma v. State of U.P. and others, connected with Criminal Case No. 1860 of 2003, Dr. Masood Ahmad and others v. State of U.P. and others, the order of the Magistrate was quashed by the High Court on the ground that the Chief Judicial Magistrate was required to recall the order dated 9.11.1995 and the chargesheet was required to be returned to the investigating agency for filing in the appropriate Court so that the Court authorised a direct cognizance under Section 190 CrPC may be able to apply its mind on the police report. It appears that in pursuance to the directions issued by the Court on 28.1.2004 in the aforesaid criminal miscellaneous case to return the chargesheet to CBCID for proceeding against the accused, investigation was conducted and that fresh charge sheet was filed as aforesaid in which the petitioner is an accused at Sl.No. 48. 7. It is stated by Shri R.K. Ojha that on the date of filing of the report by CBCID and the chargesheet No. 43A of 2007 on 13.7.2007 the petitioner had retired. On the date of his retirement on 31.1.2004 the criminal proceedings in which he was one of the accused stood quashed by the Lucknow Bench of the High Court vide judgment dated 28.1.2004. 8. The State Government has filed affidavit of Shri Sanat Kumar, Finance Controller, Police Headquarter, U.P. alleging that even if the departmental proceedings are going on against an employee or if any criminal or vigilance enquiry is going on, the payment of gratuity can be withheld. 9. 8. The State Government has filed affidavit of Shri Sanat Kumar, Finance Controller, Police Headquarter, U.P. alleging that even if the departmental proceedings are going on against an employee or if any criminal or vigilance enquiry is going on, the payment of gratuity can be withheld. 9. In the order deciding the petitioner’s representation in pursuance to the directions of the High Court it is clearly stated that there are no dues against the petitioner but that since a criminal case was pending, his gratuity, leave encashment and finalisation of pension has been withheld. 10. We have considered the Government Order dated 18th October, 1980, which provide that if at the time of retirement any departmental enquiry, or any enquiry by the Administrative Tribunal or vigilance is pending or is initiated, only provisional pension may be paid but that gratuity could not be paid until decision of such enquiry. 11. In the present case from the affidavits filed on record, we are satisfied that there were no dues against the petitioner on the date of his retirement. There was no departmental enquiry pending and that criminal cases in which he was involved in the rivalry between the politicians of the State, the proceedings had been quashed by the High Court. A fresh chargesheet was submitted in the year 2007 much after the petitioner retired. There was thus no justification to withhold the gratuity, leave encashment and finalisation of the pension. 12. The writ petition is allowed. The impugned order dated 7.11.2007 rejecting the petitioner’s representation is set aside. The respondents are directed to finalise and to release the entire gratuity, leave encashment and arrears of pension with simple interest at 7.5% per annum, which is the prevalent bank rate of interest on fixed deposits, within a period of six weeks from the date a certified copy of this order is produced before the competent authority. ————