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2015 DIGILAW 1948 (ALL)

NARENDRA PRATAP SINGH v. STATE OF U. P.

2015-07-18

VIVEK KUMAR BIRLA

body2015
JUDGMENT Hon’ble Vivek Kumar Birla, J.—Heard Sri Rashtrapati Khare, learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. Facts of the present case in brief are that the petitioner was serving as Sub Inspector in the Department of Uttar Pradesh Police and had retired on 31.1.2006. Allegations are that on 5.2.1997 when the petitioner was working as Sub Inspector at Police Station Lanka, district Varanasi, one Rajendra Prasad committed suicide in the room of the Police Out Post Sundarpur, P.S. Lanka, district Varanasi by hanging himself. Subsequently, on account of interference of Human Rights Commission, the FIR was registered against several police personnels including the petitioner and matter was referred to CBCID for inquiry. The CBCID, after inquiry submitted its report on 15.12.1999, which is annexure 1 to the petition, wherein the petitioner was found prima facie guilty of the offences under Section 304/342/34/201/218 IPC alongwith other persons and filing of the charge-sheet was recommended. The petitioner was placed under suspension, which was stayed by this Court in a Writ Petition No. 20838 of 2000 on the ground that competent authority has not passed the suspension order. Subsequently, charge-sheet dated 4.10.2004 was filed against two persons namely Dr. K.K. Jain and Kavindra Narayan Singh, against whom permission to prosecute was received. There is no dispute about the fact that subsequently charge-sheet had been filed against the petitioner also and criminal case is pending against him. 3. In the present case order dated 1.9.2005, passed by the Senior Superintendent of Police, Varanasi is under challenge where by the petitioner has been granted provisional pension at the rate of Rs. 6500/- per month till the disposal of the pending case. 4. The aforesaid order dated 1.9.2005 was challenged by means of present writ petition on the ground that no charge-sheet has been filed against the petitioner and as such respondents have no right and jurisdiction to withhold the pensionary benefits of the petitioner. However, this ground no longer is available in view of the fact that the charge-sheet has been filed against the petitioner and the criminal case/judicial proceedings are pending against the petitioner. 5. However, this ground no longer is available in view of the fact that the charge-sheet has been filed against the petitioner and the criminal case/judicial proceedings are pending against the petitioner. 5. The learned counsel for the petitioner then contended that in view of the judgement of Hon. Apex Court in The State of Jharkhand and others v. Jitendra Kumar Srivastava and another, JT 2013 (II) SC 351 and in absence of any provision regarding with holding of the pension in Service Rule or Regulation governing the service of the petitioner, the impugned order is without jurisdiction and the petitioner is entitled for full pensionary benefits. 6. The counter-affidavit and rejoinder-affidavit were filed and in the counter-affidavit a copy of the Government order dated 28.7.1989 has been filed and on the strength of the same the learned Standing Counsel defended the impugned order dated 1.9.2005 by contending that the order is well within jurisdiction and the petitioner is not entitled for any relief whatsoever during the pendency of the judicial proceeding/criminal case against him. 7. In the rejoinder-affidavit the contentions made in the counter-affidavit have been denied generally, which do not require any specific mention. 8. The short question involved in the present case is as to whether during the pendency of the criminal proceeding against the petitioner which are admittedly pending, the petitioner is entitled for release of full pensionary benefits and as to whether the impugned order dated 1.9.2005 is sustainable in the eyes of law in view of the judgement of the Apex Court in The State of Jharkhand and others (supra). 9. Learned counsel for the petitioner has laid much emphasis on the aforesaid judgement of the Apex Court. It was contended by the learned counsel for the petitioner that there is no provision in the Police Regulation or in other Service Rules governing the service of the petitioner and as such in view of the aforesaid judgement impugned order dated 1.9.2005 is liable to be set aside and direction should be issued to the respondents authorities to release the full pensionary benefits to the petitioner. 10. 10. A careful reading of the judgement of the Apex Court in The State of Jharkhand and others (supra) clearly demonstrate that while considering the Rule 43 (b) of the Bihar Pension Rule as applicable to the State of Jhankhand, in para 11 the Hon’ble Apex Court observed that there is no provision in the Rules for withholding of the pension and the gratuity when such departmental proceedings or judicial proceedings are still pending. 11. However, in para 14 of the aforesaid judgement it is observed that a person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution of India. It further observed that it follows that attempt of the appellant to take away a part of the pension or gratuity or even leave encasement without any statutory provision and under the umbrage of administrative instruction cannot be countenanced. 12. In para 15 of the aforesaid judgement however, it was noticed that in so far as statutory rules are concerned, (in case of State of Jharkhand) there is no provision for withholding pension or gratuity in the given situation and had been any such provision in these rules, the position would have been different. 13. Paragraphs 14 and 15 of the aforesaid judgement in The State of Jharkhand and others (supra) are quoted below : Para 14—“Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgement becomes too obvious. A person cannot be deprived of this pension without the authority of law which is the Constitutional mandate enshrined in Article 300 A of the Constitution of India. It further observed that it follows that attempt of the appellant to take away a part of the pension or gratuity or even leave encasement without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.” Para 15—“ It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension of gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.” 14. Thus the aforesaid observations of the Hon’ble Apex Court leaves no doubt that in case there is any provision in the rules the authority is well within jurisdiction to with hold the pensionary benefits during the pendency of the departmental proceedings or criminal proceedings or judicial proceedings. 15. Thus now it is to be tested as to whether there exist any such provision under which the authorises are competent to with hold pensionary benefits during the pendency of the departmental or judicial proceedings. 16. A Division Bench of this Court in case of Special Appeal Defective No. 1278 of 2013 (State of U.P. and 2 others v. Jai Prakash) has considered the judgement of the Hon. Apex Court in State of Jharkhand and others v. Jitendra Kumar Srivastava and another, JT 2013 (II) SC 351 (supra). Division Bench considered the provision of various Regulations of Civil Services Regulations including Regulation 351, 351-A, 351AA, and 919-A extensively. The relevant Civil Regulations are extracted here in below : 351. Future good conduct is an implied condition of ever grant of a pension. The State Government reserves to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner be convicted of serious crime or be guilty of grave mis-conduct. The decision of the State Government on any question of withholding or withdrawing the whole or any part of pension under this regulation shall be final and conclusive. 351-A The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave mis-conduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement; 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. 919-A. (1) In case referred to in Regulation 351-AA the Head of Department may authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension. (2) The provisional pension shall be authorised for the period commencing from the date of retirement up to and including the date on which after conclusion of departmental or judicial proceeding or the enquiry by the administrative Tribunal; as the case may be, final orders are passed by the competent authority. (3) No death-cum-retirement gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings or the enquiry by the Administrative Tribunal and issue of final orders thereon. (4) Payment of provisional pension made under clause (1) above shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of the proceedings or enquiry referred to in clause (3) but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or withheld either permanently or for special period. 17. Hon. Division Bench while observing in para 8 that the expression ‘judicial proceeding’ would necessarily include the pendency of a criminal case. Paragraphs 9, 10 and 11 of the aforesaid judgement are quoted herein below : 9. In a judgement of a Division Bench of this Court in Shri Pal Vaish v. U.P. Power Corporation Limited and another1, it has been held that clause 3 of regulation 919-A is a provision which specifically deals with the payment of gratuity during pendency of departmental or judicial proceedings and in view thereof, the payment of gratuity has to be deferred until the conclusion of such a proceeding. The Division Bench also held that the payment of gratuity cannot be made in view of the bar contained in regulation 919-A during the pendency of a criminal case. 10. In a recent judgement of the Supreme Court in State of Jharkhand and others v. Jitendra Kumar Srivastava and another2, the Supreme Court dealt with the provisions of Rule 43 (b) of the Pension Rules of the State of Bihar as applicable to the State of Jharkhand. Regulation 43(b) was pari materia to regulation 351-A of the Civil Service Regulations in the State of U.P. In that context, the Supreme Court held that Rule 43(b) made it clear that it was permissible for the Government to withhold pension only when a finding is recorded in a departmental inquiry or judicial proceeding in regard to the commission of misconduct while in service and rule 43(b) contains no provision for withholding gratuity when departmental or judicial proceedings are still pending. However, the Supreme Court clarified that though there was no provision for withholding pension or gratuity in the given situation, had there been any such provision in the rules, the position would have been different. In the present case, there is a specific provision contained in regulation 351-AA read with regulation 919-A(3). 11. In the circumstances, we are of the view that the order passed by the Superintendent of Police, Etah withholding the payment of gratuity until the conclusion of the criminal trial was correct and proper and was in accordance with the provisions of regulation 351-AA read with regulation 919-A (3). The respondent would however be entitled to the payment of provisional pension as contemplated in law. 18. It is clear that Hon’ble Division Bench of this Court has clearly taken into consideration the case of State of Jharkhand (supra) relied upon by the counsel for the petitioner and clearly observed that in present case there is a specific provision contained in Regulation 351-AA read with Regulation 919-A(3) of Civil Service Regulation and thus held that in that case the order passed by S.S.P. Etah withholding the gratuity was correct and proper and was in accordance with the provisions of Regulation 351-AA read with 919-A(3). 19. 19. Learned counsel for the petitioner also placed reliance on the decision of a Division Bench of this Court at Lucknow, in a case of Bangali Babu Misra v. State of U.P. and others, 2003 All LJ 1551 and contended that the pendency of criminal proceeding does not entitled the authority to withhold the pensionary benefits. 20. I have gone through the aforesaid judgement. Only Regulation 351-A of the Civil Services Regulation has been taken into consideration, whereas Regulation 351-AA and 915-A have not been considered and therefore, the aforesaid ruling is of no help to the petitioner. 21. Apart from the aforesaid fact it is also to be noticed that the incident had taken place while the petitioner was discharging his statutory duty and the death of a person under police custody amounts to be a serious offence, if proved. It is not a trivial matter which, even if convicted, will not reflect on his conduct while discharging his statutory duty as a member of disciplined force. Therefore, the SSP Varanasi had rightly and judiciously exercised his power in granting the provisional/interim pension only when criminal case regarding serious offence is pending against the petitioner. 22. Therefore, in view of the aforesaid I have no hesitation to hold that the order dated 1.9.2005, passed by the S.S.P., Varanasi is well within jurisdiction and he has powers under the provision of Civil Services Regulation, as noted above. 23. Petition lacks merit and is liable to be dismissed. 24. The petition is accordingly dismissed.