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2013 DIGILAW 837 (ALL)

Bhagwat Prasad Yadav v. State of U. P.

2013-03-14

ANIL KUMAR

body2013
JUDGMENT Anil Kumar,J. Heard Sri Alok Kirti Mishra, learned counsel for petitioner, learned State counsel and perused the record. 2. By means of the present writ petition, the petitioner has challenged the impugned order dated 15.03.2011 and 21.02.2011 passed by Superintendent of Police, Sultanpur. 3. Facts in brief of the present case are that the petitioner was initially appointed on the post of constable in Civil Police on 26.10.1965, posted at district Sultanpur. Subsequently, in the said capacity, he has been posted at different places in the State. On 26.05.2007, FIR was lodged that from the custody of the petitioner an accused has escaped away and in the said matter, he was placed under suspension, revoked by order dated 06.07.2011, pending disciplinary inquiry. 4. On 08.07.2007, the petitioner was promoted to the post of Head Constable, and on 26.07.2006, a charge sheet has been served on the petitioner to which he submitted reply on 07.07.2007, thereafter an inquiry was conducted and on the basis of enquiry report the punishment order dated 28.11.2007 has been passed by Superintendent of Police, Sultanpur. Aggrieved by the same, the petitioner preferred an appeal before the appellate authority/Dy. Inspector General of Police, Faizabad. 5. In the meantime, on 30.11.2007 the petitioner has retired from services after attaining the age of superannuation. By an order dated 06.05.2008 the appeal filed by the petitioner was allowed by the appellate authority/Dy. Inspector General of Police, Faizabad and punishment order dated 28.11.2007 has been set aside. 6. In view of the said development, the petitioner has made a representation for payment of his post retiral dues, however, by means of the impugned order dated 15.03.2011 (Annexure No. 1) passed by Superintendent of Police, Sultanpur, the petitioner's representation has been rejected on the ground that he is not entitled for pension/gratuity and other post retiral dues as criminal case is pending against the petitioner before the competent court of law (Crime Case No. 902/07 under Section 223/224 IPC) and consequential order dated 21.02.2011 has been passed. 7. 7. Learned counsel for petitioner submits that the impugned orders passed by O.P. No. 3/Superintendent of Police, Sultanpur are illegal and arbitrary in nature and the facts as stated in the impugned order dated 15.03.2011 on the basis of which the post retiral dues of the petitioner has been withheld is contrary to law as laid down by this Court in the case of Harnam Singh Yadava Vs. State of U.P. and others, 2012 (30) LCD 662 , so liable to be set aside. 8. In rebuttal, learned State counsel while defending the impugned orders submits that as per the Government Order No. - Sa-3-1713/Dus-87-933-89 dated 28.07.1989, it is provided that during the pendency of criminal case only provision pension shall be paid which is paid to him and after the decision in the criminal matter, he is entitled for other post retiral dues, so present writ petition is liable to be dismissed. 9. I have heard learned counsel for parties and gone through the record. 10. In the case of Harnam Singh Yadava Vs. State of U.P. and others, 2012 (30) LCD 662 , this Court in paragraph Nos. 4 to 9 held as under: - "Para No. 4 -The submission of the learned counsel for petitioner is that the aforementioned G.O. has been misread by the authorities concerned. The aforesaid G.O. relates only to the departmental judicial proceeding, or vigilance proceeding or service tribunal proceeding and it does not cover the criminal proceedings, which are not connected with the department. Para No. 5 - It is further argued on behalf of the petitioner that mere pendency of criminal proceeding,cannot be a ground to withheld the retiremental dues because if in the trial, the case is proved against the petitioner then he shall be punished in accordance with law. He cannot be punished by withholding his retiremental dues. Para No. 6 - Learned counsel for opposite party laid emphasis upon the G.O. Dated 28.10.1980 in which in para 2 provisions have been made regarding payment of interim pension. A bare perusal of the aforesaid para of the aforementioned G.O. reveals that it relates to such government servant against whom some departmental judicial or administrative inquiry is pending on the date of retirement. But it nowhere provides that if criminal proceedings are pending even then the said G.O. would be applicable. A bare perusal of the aforesaid para of the aforementioned G.O. reveals that it relates to such government servant against whom some departmental judicial or administrative inquiry is pending on the date of retirement. But it nowhere provides that if criminal proceedings are pending even then the said G.O. would be applicable. Suffice, it would be to mention that such a provision could not have been made for the simple reason that unless departmental proceedings have been initiated or some judicial or administrative proceedings have been initiated for the purpose of determining the guilt of the government servant during the course of his service, mere pendency of a criminal proceedings cannot be a ground for taking any action against the petitioner with respect to payment of his post retiral dues. Para No. 7 - Learned counsel for petitioner has placed reliance on a Division Bench pronouncement of this Court in the case of Bangali Babu Misra vs. State of U.P. and others reported in 2003 (3) AWC 1760 (LB).In the said case the petitioner was caught in a trap case and subsequently he was suspended and in that case the court directed that the entire post retiral dues of the petitioner including pension, gratuity, leave en-cashment, group insurance be paid to the petitioner. Para No. 8 - Section 4 (6) of the Payment of Gratuity Act, 1972 reads as under, 6.Notwithstanding anything contained in sub section (1),- (a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer shall be forfeited to the extent of the damage or loss so caused; (b) the gratuity payable to an employee [may be wholly or partially forfeited]- (1) if the services of such employee have been terminated for his riotous or disorderly conduct of any other act of violence on his part, or (ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude provide that such offence is committed by him in the course of his employment. Para No. 9 - A bare perusal of the aforesaid section makes it abundantly clear that the circumstances as enumerated in the aforesaid section does not extended at all in the case of the petitioner, therefore, the order of stopping the gratuity of the petitioner was not in accordance with law. This court in the case of Amod Prasad Rai vs. State of U.OP. And another reported in [ 2009 (27) LCD 1005 ] has held that withholding of gratuity is not permissible in any circumstance other than those enumerated in section 4 (6) of the Payment of Gratuity act and held that right to gratuity is a statutory right. It is no where the case of the opposite party that because of the aforementioned criminal proceeding any loss was occasioned to the department or such an offence was committed during the course of his employment. It is also nowhere the case of the opposite party that any amount has to be recovered from the petitioner as out standing dues against him towards the department. This court in the case of Radhey Shyam Shukla vs. State of U.P. and others reported in [(2009) 2 UPLBEC 3045] has held as under , "Normally, as urged by the learned Standing counsel, "judicial proceedings" would also include a criminal trial. However, the meaning ascribed to a word has to be given keeping in mind the intention of the legislature and the object which it sought to achieve while using it. A reading of the aforesaid provision shows that "judicial proceeding" has been used for the purpose of any administrative action or which may have given rise to a "judicial proceeding" relating to the conduct of the Government servant. One of the main object of withholding gratuity is to compensate the Government the loss caused by the Government servant in his functioning as such. In the present case the criminal case relates to two individuals and the trial cannot in any manner fix responsibility of any loss to the Government. In fact, there is no case set up in the counter affidavit that the decision in the pending criminal trial between two individuals would in any way enable the Government to realize any alleged loss. In fact no loss has even been attributed to the petitioner. A Division Bench of this Court in the case of Bangali Babu Misra Vs. In fact, there is no case set up in the counter affidavit that the decision in the pending criminal trial between two individuals would in any way enable the Government to realize any alleged loss. In fact no loss has even been attributed to the petitioner. A Division Bench of this Court in the case of Bangali Babu Misra Vs. State of U.P. and others [ 2003 (3) AWC 1760 ] has considered the effect of the Government order which has been incorporated in the Rules and has held that mere pendency of criminal proceedings would not authorise withholding of post retiral benefits including gratuity. The aforesaid decision has been followed subsequently in the case of Mahesh Bal Bhardwaj Vs. U.P. Cooperative Federation Ltd. and another [ 2007 (10) ADJ 561 ]." 11. In the light of the abovesaid judgment passed by this Court, the impugned order dated 15.03.2011 and 21.02.2011passed by Superintendent of Police, Sultanpur are liable to be set aside. 12. For the foregoing reasons, the impugned order dated 15.03.2011 and 21.02.2011passed by Superintendent of Police, Sultanpur are set aside. Accordingly, petitioner is entitled for post retiral dues payable to him. 13. With the above observations, writ petition is allowed.