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Allahabad High Court · body

2012 DIGILAW 1184 (ALL)

Roop Chandra Verma v. State of U. P. and Others

2012-05-15

SHABIHUL HASNAIN

body2012
Shabihul Hasnain, J.— Heard Sri Pratyush Chaubey learned counsel for the petitioner and learned Standing Counsel. The petitioner has approached this court seeking a writ of mandamus. The petitioner is a retired person. He has not been paid the retiral benefits including the amount towards pension, gratuity and commutation etc. the petitioner has retired on 31.5.2007. He is being paid the provisional pension. The petitioner has informed that there are two criminal cases pending against him, the mention of which has been made in Annexure no. 1 and order dated 19.6.2007. By this order the petitioner has been granted provisional pension of Rs. 3060/- only per month. The petitioner has pointed out that the charges against the petitioner are under Sections 409, 323, 504, 506 IPC and 3(1)(x) S.C./S.T. Act. The petitioner has emphatically submitted that no departmental proceeding has been initiated against him and naturally no departmental inquiry is pending against him. The said categorical averments has been made in paragraph no. 6 of the writ petition. By Annexure no. 2 an order has been passed for revised provisional pension to be paid to the petitioner. Petitioner has argued that legally speaking if all the charges against the petitioner are found to be proved then the petitioner can be punished according to Indian Penal Code but his pension can not be withheld on any of the grounds. A perusal of the F.I.R. shows that Section 409 I.P.C. has been invoked for an amount of Rs. 21,486/- only. He says that even if the petitioner is convicted the amount which can be recovered from him will the amount mentioned in the F.I.R. Since no departmental inquiry has been initiated till date and no permission has been sought under Section 351A of the Civil Services Regulation, hence, no punishment of dismissal, reduction in rank etc. can be passed in the case of the petitioner. The department itself is to be blamed for this lapse of not initiating any departmental inquiry. The fact remains that at the most recovery of Rs. 21,486/- can be made from the amount of its retiral dues to be paid to the petitioner. The petitioner has relied upon {(2004) 2 UPLBEC 1738 (Sughar Singh (Retired) vs. Deputy Inspector General of Police (Establishment), U.P. Police Headquarters, Allahabad & another.In para no. 13 of the judgment following observations have been made: "13. 21,486/- can be made from the amount of its retiral dues to be paid to the petitioner. The petitioner has relied upon {(2004) 2 UPLBEC 1738 (Sughar Singh (Retired) vs. Deputy Inspector General of Police (Establishment), U.P. Police Headquarters, Allahabad & another.In para no. 13 of the judgment following observations have been made: "13. In above view of the matter and in the facts of the present case, the State Government was not justified in not paying the pension and gratuity to the petitioner. However, it is made clear that in case petitioner is convicted in the criminal case pending against him, the Government is fully empowered to exercise its power under -2- Regulation 351 to withhold or withdraw the pension or any part of it. The petitioner, thus, has made out a case for direction to the respondents to finalise the pension and pay his gratuity. The respondents are directed to finalise the pension of the petitioner and pay arrears of pension and gratuity to the petitioner within a period of three months from the date of production of a certified copy of this order." The learned Standing Counsel on the other hand has tried to defend the action of the opposite parties. He says that the pension, if released fully may jeopardized the chances of any recovery from the petitioner. Section 409 I.P.C. refers to embezzlement of money. He says that according to the F.I.R. Rs. 21,486/- were embezzled by the petitioner who was a government servant. The petitioner has pleaded that he has no other source of income. The family totally depending upon the provisional pension which the petitioner is receiving from the opposite parties. It is becoming very difficult to contain the family and satisfy their needs in these days of high inflation. I have given my anxious consideration to the rival arguments and I feel that in the peculiar circumstances of this case where no departmental inquiry has either been contemplated or is pending, no punishment can be awarded after five years of retirement of the petitioner. The criminal case which is pending may take years to finalize. Even if the petitioner is held guilty under Section 409 I.P.C. a maximum punishment will be a recovery of Rs. 21,486/-. The criminal case which is pending may take years to finalize. Even if the petitioner is held guilty under Section 409 I.P.C. a maximum punishment will be a recovery of Rs. 21,486/-. Under the circumstances, the interest of justice will be satisfied if a provision is made to safeguard the amount of the department to the extent it was alleged to be embezzled by the petitioner. Accordingly, the opposite parties are directed to take out a sum of Rs. 21,486/- out of the post retiral dues of the petitioner and keep it into a interest bearing account separately, payment of which will be dependent on the result of the criminal trial. If the petitioner is convicted the amount can be taken back by the department and if he succeeds the same will be refunded to the petitioner. The opposite parties are directed to make the payment of rest of the post retiral dues within a maximum period of one month from the date a certified copy of this order is placed before them. With the above observations, writ petition is allowed. _