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Allahabad High Court · body

2014 DIGILAW 501 (ALL)

JANARDAN SINGH v. STATE OF U. P.

2014-02-13

MANOJ KUMAR GUPTA

body2014
JUDGMENT Hon’ble Manoj Kumar Gupta, J.—Heard counsel for the petitioner, learned standing counsel for respondent No. 1 and Sri Ayank Mishra for respondent Nos. 2 and 3. 2. The petitioner had retired as Junior Engineer from Purvanchal Vidyut Vitran Nigam Ltd. on 30.6.2009. His grievance is that his gratuity has been withheld for no justifiable reason and, therefore, he has approached this Court by way of instant writ petition. 3. It appears that while the petitioner was posted as Junior Engineer at Electricity Workshop Division, Bamrauli Unit, Allahabad, a theft took place at the workshop, in which transformer coils were stolen, by breaking open the top plate of old transformers, lying in the open, for last 10-12 years. On coming to know of it, the petitioner immediately informed the Asst. Engineer and the Executive Engineer and also lodged a First Information Report with Police Station Dhoomanganj, Allahabad being Case Crime No. 82 of 2007. At that time, security of the workshop was in the hands of a private security agency, M/s. Impact Security Services. Sri D.K. Singh, Assistant Engineer, inspected the site and submitted a report to the Executive Engineer, stating that he did not find complicity of any employee. He suggested that boundary wall of the workshop, which is broken at several places should be repaired. Subsequently, the Superintending Engineer, Electricity Work Circle appointed Sri R.D. Sonkar, Executive Engineer to inquire into the matter and submit a report. Thereupon, Sri R.D. Sonkar, Executive Engineer conducted an inquiry and in his report dt. 18.2.2008, he clearly stated that there is absolutely no evidence of involvement of any employee of the department. 4. However, in view of the fact that the petitioner was posted as junior engineer at the relevant time, an order was passed by Executive engineer on 11.12.2007, for making an entry of miscellaneous advance of an amount equivalent to the value of stolen material, against the name of the petitioner. Later on, the Superintendent Engineer by order dt. 27.3.2008, directed that such entry will continue till the matter is under investigation by the police. On 4.2.2009, the Petitioner submitted an application in the Court of concerned magistrate to apprise him of the progress in the investigation, whereupon, a report was called from the police, which reported that it is unable to find out the miscreants. On 17.4.2009, the petitioner filed an application to reverse the entry of misc. On 4.2.2009, the Petitioner submitted an application in the Court of concerned magistrate to apprise him of the progress in the investigation, whereupon, a report was called from the police, which reported that it is unable to find out the miscreants. On 17.4.2009, the petitioner filed an application to reverse the entry of misc. advance standing against his name. The application remained pending and the petitioner retired on 30.6.2009. The Police after completing the investigation submitted a final report on 7.1.2010. The petitioner, who had retired in the mean time, was having no reason to object to the acceptance of the final report, submitted an application dated 23.7.2010 before the concerned Magistrate stating that he has no objection to the acceptance of final report. Thereafter, the ACJM by order dated 17.7.2010, accepted the final report. It appears that the Chief Engineer, Commercial on coming to know of these facts, by his letter dated 21.12.2010 directed the Executive Engineer, Allahabad to file a revision against the order accepting the final report. On basis of such direction, the Executive Engineer has filed Criminal Revision No. 101 of 2011, which is stated to be pending. 5. In the counter-affidavit it is stated that on account of an entry of miscellaneous advance pending against the name of the petitioner, his gratuity has not been paid. Further, during the course of arguments, Sri Ayank Mishra, counsel for the respondents submitted that pendency of the revision is the other ground on which gratuity is not being released. 6. Countering the submissions made by learned counsel for the respondents, Sri J.P. Pandey, counsel for the petitioner submitted that the entry of miscellaneous advance against the name of the petitioner was to continue only till final report is submitted by the Police. He further submits that in the inquiry conducted by the Executive Engineer on the direction of Superintending Engineer, it was found that neither the petitioner nor any other employee of the Electricity department can be held responsible for the theft. He further submits that the department had never drawn any proceeding against the petitioner for having caused any loss to the Corporation. It is not even the case of the department that the loss is attributable to the petitioner. He further submits that the department had never drawn any proceeding against the petitioner for having caused any loss to the Corporation. It is not even the case of the department that the loss is attributable to the petitioner. It is further urged that the revision filed by the Executive Engineer is firstly not maintainable and second, the same cannot be treated to be a proceeding pending against the petitioner within the meaning of Regulation 351-AA of the Civil Service Regulations. He has placed reliance on a judgment of this Court in Shyam Lal Kanaujia v. State of U.P. and another, 2012 (4) ADJ 47 and another judgment of Division Bench of this Court in Mahesh Bal Bhardwaj v. U.P. Co-operative Federation Ltd. and another, 2007 (10) ADJ 561 . 7. On the other hand, Sri Ayank Mishra has placed reliance on Regulation 351-AA of the Civil Services Regulation and the Division Bench judgment of this Court dated 17.12.2013 passed in Special Appeal Defective No. 1278 of 2013 State of U.P. and 2 others v. Jai Prakash. 8. I have heard learned counsel for the parties and perused the record. 9. It is not disputed that a sum of Rs. 2,60,561.75/- is payable as gratuity to the petitioner. However, as would be evident from the stand of the Corporation taken in the affidavit, the said amount is being withheld on two grounds; namely (i) there being an entry of miscellaneous advance of the said amount, against the name of the petitioner, and (ii) on account of pendency of criminal revision filed by the Executive Engineer. 10. Regulation 351-AA of the Civil Service Regulations, which is applicable to the employees of the Corporation, is reproduced below : “351-AA. In the case of a Government Servant who retires on attaining the age of superannuation or otherwise and against whom any departmental or Judicial proceedings or any enquiry by Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement a provisional pension as provided in Regulation 919-A may be sanctioned.” 11. In the case of a Government Servant who retires on attaining the age of superannuation or otherwise and against whom any departmental or Judicial proceedings or any enquiry by Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement a provisional pension as provided in Regulation 919-A may be sanctioned.” 11. Perusal of the aforesaid regulation demonstrates that the retiral benefits of an employee, who attains the age of superannuation or retires otherwise, can be withheld and only provisional pension could be sanctioned in case any departmental or judicial proceedings or any inquiry by Administrative Tribunal is pending against him on the date of retirement or is to be instituted after retirement. 12. Admittedly, it has not been the case of the respondents that the theft had taken place on account of complicity of the petitioner. On the other hand, the Executive Engineer in his report dated 18.2.2008 had clearly found that neither the petitioner nor any other employee of the Corporation can be held responsible for the theft. 13. In aforesaid factual background, the question which now arises for consideration before this Court is whether the pendency of the criminal revision in question could be said to be a judicial proceeding pending against the petitioner, within the meaning of Regulation 351-AA, on basis of which retiral benefits of the petitioner could be withheld. 14. It is not in dispute, that the petitioner was the first informant of the incident and the Police after investigation had submitted a final report. By the time, final report was to be accepted, the petitioner had retired on attaining the age of superannuation, as such, he was not left with any interest to file protest petition or to oppose the acceptance of the final report. However, on direction of Chief Engineer, the Executive Engineer had filed a revision against the order accepting the final report. Though in the said revision, the petitioner herein has been arrayed as the opposite party, but I am of the opinion that merely by arraying the petitioner as a party-respondent to the said revision, it could not be said that any ‘’judicial proceeding’ contemplated by Regulation 351-AA, is pending against the petitioner. 15. Though in the said revision, the petitioner herein has been arrayed as the opposite party, but I am of the opinion that merely by arraying the petitioner as a party-respondent to the said revision, it could not be said that any ‘’judicial proceeding’ contemplated by Regulation 351-AA, is pending against the petitioner. 15. The aforesaid view also stands fortified by the tenor of the language employed in the Regulations, particularly the second proviso to Regulation 351A, which, inter alia, provides as under : “(b) judicial proceedings shall be deemed to have been instituted: (i) in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal Court ; and (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to a Civil Court.” 16. It is no body’s case that any civil proceeding is pending against the petitioner. The criminal proceedings contemplated should be on basis of ‘complaint’ or ‘charge-sheet’. Criminal revision in question, cannot be said to be a judicial proceeding pending on basis of any charge-sheet. The word ‘complaint’ is defined in Section 2(d) of the Criminal Procedure Code as follows: “Section 2 (d) : “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report” 17. Criminal revision in question, also, could not amount to a complaint or a proceeding pending in pursuance of any complaint against the petitioner. 18. Further, the incident being more than 4 years old, even in future, no departmental or judicial proceeding can be instituted, in view of bar contained under Regulation 351A. 19. In view of the above, I am of the considered opinion that the action of the respondent Corporation in withholding the gratuity of the petitioner on the ground of pendency of criminal revision is wholly unjustified and cannot be sustained in law. 20. So far as the judgment of this Court dated 17.12.2013 in Special Appeal Defective No. 1278 of 2013 is concerned, the same is not applicable to the facts of the present case. 20. So far as the judgment of this Court dated 17.12.2013 in Special Appeal Defective No. 1278 of 2013 is concerned, the same is not applicable to the facts of the present case. Therein, it was not in dispute that a criminal trial was pending against the employee and on which ground the gratuity was withheld. It was on the facts of that case, the Court held that the employee would not be entitled to gratuity until the conclusion of the criminal trial but only to payment of provisional pension as contemplated by law. In the instant case, as already held, no proceeding as contemplated by Regulation 351-AA being pending against the petitioner, the action of the respondents in withholding the gratuity of the petitioner cannot be countenanced. 21. As regards there being an entry of miscellaneous advance of the amount in question against the name of the petitioner, it would be useful to refer to the order dated 27.3.2008 passed by the Superintending Engineer, in this regard. It mentions that as per rules of the Corporation, the said amount be shown as miscellaneous advance against the name of the petitioner, till FR is submitted by the police. By the tenor of the order, it is clear that the aforesaid entry could have continued only till the submission of the final report. It is not dependent on its acceptance or rejection. In the instant case, the Police had investigated the matter and submitted a final report and thereafter, according to the order of Superintending Engineer dated 27.3.2008, the aforesaid entry had automatically lost its efficacy. Further, it has not been the case of the respondent Corporation that the petitioner is guilty of any loss caused to the department. Admittedly, the incident of theft had taken place some times before 3.11.2007 and thereafter, the petitioner continued to be in service for more than one and half years. During this period, the respondent Corporation had not drawn any kind of disciplinary proceeding against the petitioner. The Petitioner in Para 16 has taken a specific plea that entry of miscellaneous advance against his name was illegal and contrary to office memorandum dated 5.11.1981 as he was never given a chance to explain his position. There is no specific denial to the said assertion in the counter-affidavit. The Petitioner in Para 16 has taken a specific plea that entry of miscellaneous advance against his name was illegal and contrary to office memorandum dated 5.11.1981 as he was never given a chance to explain his position. There is no specific denial to the said assertion in the counter-affidavit. Thus, even otherwise, I find entry of miscellaneous advance against the Petitioner, to be wholly illegal and unwarranted, in the facts of the present case. Thus, the other ground on which gratuity is being withheld, also cannot be sustained. 22. No other ground has been pressed by learned counsel for the parties. 23. In view of the discussions made above, the writ petition succeeds and is allowed. The respondents are directed to pay the entire amount of gratuity payable to the petitioner within six weeks from the date of production of a certified copy of this order alongwith simple interest at the rate of 8% per annum(on analogy of S.7 of the Gratuity Act,1972), till date of actual payment. 24. No order as to costs. —————