Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 131 (ALL)

INAYATULLA KHAN v. STATE OF U. P.

2018-01-12

DEVENDRA KUMAR ARORA, RAJNISH KUMAR

body2018
JUDGMENT Hon’ble Rajnish Kumar, J.—The petitioner has approached to this Court for quashing the impugned order dated 2.9.2014 issued by the respondent No. 5 by which it has been provided that the petitioner would be continued to be paid provisional pension in accordance with the Government order dated 28.7.1989 and 28.10.1980 and the proposal for pension would be made available after disposal of the prosecution by the Hon’ble Court. 2. The petitioner has further prayed for a direction to respondents to release forthwith the regular Pension and Gratuity with simple interest @ 9% per annum w.e.f. the date of retirement of the petitioner upto the date of actual payment. 3. The facts in brief for adjudication of the present controversy are that the petitioner was initially appointed on the post of Platoon Commander in the U.P. Provincial, Armed Constabulary on 3.9.1980 (hereinafter referred as the “PAC” for the sake of brevity). After completion of training, the petitioner was given posting in 32nd Battalion PAC, Sarojni Nagar, Lucknow. Subsequently on 21.9.1987 the petitioner was promoted as Company Commander. Thereafter, he was promoted on the post of Deputy Superintendent of Police on 5.9.2001. 4. On attaining the age of superannuation the petitioner got superannuated from the post of Deputy Superintendent of Police, while being posted as Assistant Commandant in 35th Battalion PAC, Mahanagar, Lucknow on 31.12.2014. 5. An FIR was lodged on 10.6.2011 when the petitioner was posted as Deputy Superintendent of Police Nighasan, District-Khiri, bearing Case Crime No. 706/2011 under Section-376, 302, 201 I.P.C. at Police Station Nighasan, District Khiri against unknown persons. In the aforesaid matter a report under Section 173 of Code of Criminal Procedure in the form of Charge-sheet was filed by the CBCID against Constable Ateeq Ahmad, Constable Shiv Kumar and Constable Umashaker in the Competent Court. In the aforesaid matter the allegations as contended in charge-sheet, submitted to Competent Court, are that aforesaid constables committed rape with a minor girl and murdered her. 6. Subsequently, on the basis of further investigation conducted by CBI and report bearing Report No. 01/2013, SC-11/CBI/New Delhi supplementary report under Section 173 of Code of Criminal Procedure was submitted by the Central Bureau of Investigation in the Court of Special Magistrate for CBI Cases, Lucknow, on 29.3.2013. 7. The petitioner has been paid an amount of Rs. 20,92,694.00 of his GPF and Rs. 7. The petitioner has been paid an amount of Rs. 20,92,694.00 of his GPF and Rs. 3,53,646.00 of Leave Enchashment, while the gratuity of petitioner has been withheld and only interim pension is being paid to the petitioner. 8. Since the petitioner has not been paid his retiral dues, so he has approached to this Court challenging the order dated 2nd September, 2014 passed by Director Finance, U.P. Police Head Office, Allahabad and for release of his gratuity and regular pension with simple interest. 9. Heard Sri Gaurav Mehrotra, learned Counsel for the petitioner and Sri Vivek Kumar Shukla, learned Additional Chief Standing Counsel and perused the records. 10. Sri Gaurav Mehrotra, learned counsel for the petitioner submitted that the gratuity can be with-held only if it is covered under any of the exceptions given under Section 4(6) of the Payment of Grartuity Act, 1972. As such, the gratuity of the petitioner cannot be with-held as instant case does not come under any of the exceptions given under the said Section. He further submitted that allegations against the petitioner are of Section 201 I.P.C. only and there is no allegation of loss to the State as he has not caused any pecuniary loss to the State during his service period. No other disciplinary or any sort of proceeding is pending against the petitioner and mere pendency of any judicial proceeding cannot be a ground to exercise the powers under Article 351AA read with Regulation 919A for withholding the retiral dues. Further he submitted that in any case the regular pension and gratuity cannot be withheld in a mechanical manner without considering the facts and circumstances of the case. While in the present case by the order dated 2.9.2014 it has been provided that the petitioner shall be paid only provisional pension and after final disposal of the prosecution by the Hon’ble Court the proposal for final pension be submitted without considering the facts and circumstances of the present case. 11. Sri Vivek Kumar Shukla, Additional Chief Standing Counsel vehemently opposed the submissions of the learned counsel for the petitioner. He submitted that the Government Orders dated 28.7.1989 and 28.10.1980, on the basis of which the impugned order dated 2.9.2014 has been passed, has not been challenged by the petitioner, hence, the present writ petition itself is not maintainable. 11. Sri Vivek Kumar Shukla, Additional Chief Standing Counsel vehemently opposed the submissions of the learned counsel for the petitioner. He submitted that the Government Orders dated 28.7.1989 and 28.10.1980, on the basis of which the impugned order dated 2.9.2014 has been passed, has not been challenged by the petitioner, hence, the present writ petition itself is not maintainable. He further submitted that as per the supplementary report dated 29.3.2013 submitted by the Central Bureau of Investigation (CBI) in Case Crime No. 706/2011 lodged at P.S. Nighasan, district Kheri under Sections 376, 302, 201 of I.P.C. and in which complicity of the petitioner has been shown and accordingly, the judicial proceeding is pending in the competent Court. Hence, the petitioner is not entitled for regular pension and gratuity in accordance with Regulation 351-AA read with Regulation 919-A of Civil Service Regulation. 12. We have considered the submissions of the parties. Section 4(6) of the Payment of Gratuity Act provides that the gratuity of an employee, whose services have been terminated for any act, which 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 and the gratuity is payable to an employee may be (wholly or partially) forfeited. Section 4(6) of the Payment of Gratuity Act, 1972 is reproduced hereunder: “Not withstanding 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] (i) if the services of such employee have been terminated for his riotous or disorderly conduct or 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, provided that such offence is committed by him in the course of his employment.” 13. The aforesaid provision goes to show that the same cannot be said to be applicable on the present case. In the present case the regular pension and gratuity has been withheld on the account of pendency of judicial proceedings. 14. The aforesaid provision goes to show that the same cannot be said to be applicable on the present case. In the present case the regular pension and gratuity has been withheld on the account of pendency of judicial proceedings. 14. Relevant provision in this regard made in the Civil Services Regulations are 351, 351-A and 351-AA which are reproduced hereunder: “351. Future good conduct is an implied condition of every grant of a pension. The State Government reserve 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 misconduct. “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 cause Government, if the pensioner is found in departmental or Judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement.” Explanation (b) to the second proviso of Regulation 351-A, inter alia, provides as follows: “(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.” “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.” Regulation 919-A is reproduced as under: “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 upto the date of retirement of the Government servant or if he was under suspension on the date of retirement upto 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 upto 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.” 15. It has been provided in Regulation 351-AA that 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. Regulation 919-A(1) specifically provides Head of Department may authorise the provisional pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government servant or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was placed under suspension. Regulation 919-A(1) specifically provides Head of Department may authorise the provisional pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government servant or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was placed under suspension. Regulation 919A(2) provides that the provisional pension shall be authorised for the period commencing from the date of retirement upto 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 shall be, final orders are passed by the comptent authority. Regulation 919-A(3) specifically provides that 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. 16. Therefore, contention of learned counsel for petitioner that there is no provision for withholding the gratuity on mere pendency of a criminal case is misconceived for the reason that such provision is specifically contained in Article 351-AA read with Regulation 919-A. 17. Admittedly, in the present case a judicial proceedings vide Case Crime No. 706/2011 under Sections 376, 302, 201 I.P.C. was lodged at P.S. Nighasan, district Kheri on 10.6.2011, instituted during the service period of the petitioner, is pending against the petitioner. In the said criminal proceedings as per the charge-sheet dated 29.3.2013 submitted by CBI there is specific allegation on the petitioner of trying to shield the accused constable Atiq Ahmad, who on his official duty tried to commit rape in the police station premises and after committing the crime he hanged the deceased on the branch of a tree. In view of above, the allegation on the petitioner is serious of saving an accused of a heinous crime, that too on official duty. 18. The legal issue has specifically been considered by this Court. This issue came up to this Court in State of U.P. and 2 others v. Jai Prakash, 2014(1) ADJ 207 (DB). In the said case the learned Single Judge has held that there is no provision under which gratuity payable to a Government servant could have been withheld merely on a judicial proceedings pending as there was no provision for doing so. In the said case the learned Single Judge has held that there is no provision under which gratuity payable to a Government servant could have been withheld merely on a judicial proceedings pending as there was no provision for doing so. The Division Bench after considering the Regulations 351, 351-A, 351-AA and Regulation 919-A specifically held that Regulation 919(3) which contains a bar on the payment of gratuity till the conclusion of a departmental or judicial proceeding would allow the payment of a provisional pension stipulated in clause (1) of regulation 919-A. The relevant portion of the said judgment is reproduced as under: “Government has the power to withhold or withdraw the pension and a power to recover any pecuniary loss suffered. Regulation 351-A postulates that there has to be a determination in departmental or judicial proceedings. Regulation 351-AA deals with a situation where a departmental or judicial proceeding or any enquiry by the Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement in which case a provisional pension under regulation 919-A may be sanctioned. Where a departmental or judicial proceeding is pending on the date of retirement, regulation 351-AA stipulates that a provisional pension would be admissible and the modalities for the payment of a provisional pension are prescribed under regulation 919-A. Regulation 919-A (1) makes a reference to the situation which is referred in regulation 351-AA and authorises the payment of a provisional pension by the Head of Department. The provisional pension is to be authorised for the period commencing from the date of retirement upto and including the date of conclusion of departmental or judicial proceedings or, as the case may be, the enquiry by the Administrative Tribunal. Regulation 919-A (3) contains an expression prohibition on the payment of death-cum-retirement gratuity to a Government servant until the conclusion of the departmental proceeding, judicial proceeding or as the case may be, an enquiry by the Administrative Tribunal. Regulation 41 provides that except when the term ‘Pension’ is used in contradistinction to gratuity, ‘Pension’ would include gratuity. Consequently, regulation 919 (3) which contains a bar on the payment of gratuity till the conclusion of a departmental or judicial proceeding would allow the payment of a provisional pension stipulated in clause (1) of regulation 919-A.” 19. Regulation 41 provides that except when the term ‘Pension’ is used in contradistinction to gratuity, ‘Pension’ would include gratuity. Consequently, regulation 919 (3) which contains a bar on the payment of gratuity till the conclusion of a departmental or judicial proceeding would allow the payment of a provisional pension stipulated in clause (1) of regulation 919-A.” 19. After dealing with the issue the Division Bench has held that in view of the specific bar which is contained in regulation 919(3), no death-cum-retirement gratuity would be admissible until the conclusion of a departmental or judicial proceeding. The expression ‘judicial proceeding’ would necessarily include the pendency of a criminal case. 20. In case of Shri Pal Vaish v. U.P. Power Corporation Limited and another, a Division Bench of this Court has held that the payment of gratuity cannot be made in view of the provisions contained in clause 3 of regulation 919-A during the pendency of a criminal case. 21. In a recent judgment of the Supreme Court in State of Jharkhand and others v. Jitendra Kumar Srivastava and another, 2013(3) ESC 554 (SC) 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 the 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, Supreme Court clarified that there was no provision for pension or gratuity in the given situation, had there been any such provision in the rules, the position would have been different. In the instant case, there is a specific provision contained in Regulations 351-AA read with Regulation-919(A)(3) of the Civil Services Regulations that provisional pension would be admissible during pendency of judicial proceedings and no death-cum-retirement gratuity shall be paid till conclusion of judicial proceedings. 22. In the instant case, there is a specific provision contained in Regulations 351-AA read with Regulation-919(A)(3) of the Civil Services Regulations that provisional pension would be admissible during pendency of judicial proceedings and no death-cum-retirement gratuity shall be paid till conclusion of judicial proceedings. 22. Learned counsel for petitioner relied on a Division Bench judgment of this Court passed in Special Appeal Defective No. 416 of 2014; State of U.P. and others v. Faini Singh and on the basis thereof he submitted that though the power may be vested in the Government to withhold the pension and the gratuity during pendency of judicial proceedings but that cannot be exercised mechanically without considering the facts and circumstances of the case. The Division bench in the said judgment considered the fact that the judicial proceedings of Criminal Case was pending for the last 20 years and after 8 years of petitioner’s retirement and in which the allegations are not such which are directly attributed to the respondents for having played fraud for getting the loan and on being issued a show-cause notice, the petitioner who was a guarantor had deposited the entire amount, held that in such situations the continuance of the embargo on the payment of gratuity to petitioner amounts to injustice to the petitioner who was not accused of causing any loss to the State Government. The allegations were not levelled against the petitioner with regard to discharge of statutory duty. In the circumstances, the Division Bench has held that the nature and the gravity of charge has to be taken into consideration by the competent authority before making an order to withhold the retiral dues after retirement and held that mere pendency of any judicial proceeding cannot be a ground to exercise the powers under Article 351-AA read with Regulation 919-A for withholding the retiral dues. 23. 23. On applying on the facts and circumstances of the instant case, we find that firstly Article 351-AA specifically provides that in case any judicial proceeding is pending on the date of retirement or is to be instituted after retirement, the provisional pension as provided in Regulation 919-A may be sanctioned and Regulation 919(A) provides that 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 upto the date of retirement and Regulation 919-A(3) provides that 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. 24. There is no rule for consideration by the authorities under the aforesaid provision about the seriousness of allegations etc., and if there is no rule the authorities cannot consider the same and pendency of judicial proceeding is sufficient to withhold regular pension and death-cum-retirement gratuity. We are of the considering opinion that no word for interpretation of any specific provision can be added by the Court for exercising the said power. This Court has also held in Service Bench No. 14939 of 2017; Dr. Achal Singh v. State of U.P. and others and other connected matters that it is well-settled that Court cannot either add anything to the Rule or delete any word from the Rule and the Rule has to be considered without any variation and/or modification. 25. In terms of Regulations 351-A, 351-AA read with Regulation 919-A the order dated 2.9.2014 has been passed by the Director Finance, U.P. Police Head Quarter, Allahabad which has been impugned in the present writ petition and we found that the order is in accordance with the aforesaid provision and that is fully justified. 26. So far the objection of the learned Additional Chief Standing Counsel regarding non challenge to the Government Orders dated 28.7.1989 and 28.10.1980 are concerned, we find that the said Government Orders have been issued only for implementation of the Article 351A and 919-A of the Civil Services Regulation, hence, the argument is misconceived. 27. 26. So far the objection of the learned Additional Chief Standing Counsel regarding non challenge to the Government Orders dated 28.7.1989 and 28.10.1980 are concerned, we find that the said Government Orders have been issued only for implementation of the Article 351A and 919-A of the Civil Services Regulation, hence, the argument is misconceived. 27. The judgment and order dated 25.4.2014 rendered in Special Appeal Defective; State of U.P. and others v. Faini Singh, is also not of any aid to the case of the petitioner as has been held by the Court which is as under: “8. Regulation 351-A operates in two areas, namely if the pensioner is found in departmental or judicial proceedings to be guilty of grave misconduct or if the pensioner is found in departmental or judicial proceedings to have caused pecuniary loss to the Government by his misconduct or negligence, during service or on re-employment, the Government has the power to withhold or withdraw the pension and a power to recover any pecuniary loss suffered. Regulation 351-A postulates that there has to be a determination in departmental or judicial proceedings. Regulation 351-AA deals with a situation where a departmental or judicial proceeding or any enquiry by the Administrative Tribunal is pending on the date of retirement or is to be instituted after retirement in which case a provisional pension under Regulation 919-A may be sanctioned. Where a departmental or judicial proceeding is pending on the date of retirement, Regulation 351-AA stipulates that a provisional pension would be admissible and the modalities for the payment of a provisional pension are prescribed under Regulation 919-A. Regulation 919-A (1) makes a reference to the situation which is referred in regulation 351-AA and authorises the payment of a provisional pension by the Head of Department. The provisional pension is to be authorised for the period commencing from the date of retirement upto and including the date of conclusion of departmental or judicial proceedings or, as the case may be, the enquiry by the Administrative Tribunal. Regulation 919-A (3) contains an expression prohibition on the payment of death-cum-retirement gratuity to a Government servant until the conclusion of the departmental proceeding, judicial proceeding or as the case may be, an enquiry by the Administrative Tribunal. Regulation 41 provides that except when the term ‘Pension’ is used in contradistinction to gratuity, ‘Pension’ would include gratuity. Regulation 919-A (3) contains an expression prohibition on the payment of death-cum-retirement gratuity to a Government servant until the conclusion of the departmental proceeding, judicial proceeding or as the case may be, an enquiry by the Administrative Tribunal. Regulation 41 provides that except when the term ‘Pension’ is used in contradistinction to gratuity, ‘Pension’ would include gratuity. Consequently, Regulation 919 (3) which contains a bar on the payment of gratuity till the conclusion of a departmental or judicial proceeding would allow the payment of a provisional pension stipulated in clause (1) of Regulation 919-A.” 28. This Court had also occasion to deal with the issue in Special Appeal No. 496(SB) of 2012; Vijai Narain Bajpai v. The State of U.P. and others, in which one of us (Dr. Deendra Kumar Arora, J.) was a Member, and has specifically held as under: “Regulation 351-AA of the Civil Servant Regulation [in short referred to as the ‘Regulation’] provides that where a departmental or judicial proceeding or any inquiry before the Administrative Tribunal is pending on the date of retirement, a provisional pension under Regulation 919-A may be sanctioned. Regulation 919-A(3) contains a specific prohibition on the payment of death-cum-retirement gratuity to a Government servant until the conclusion of departmental or judicial proceedings and the issue of final orders thereon. Regulation 919-A (1) makes a reference to the situation which is referred in Regulation 351-AA and authorizes the payment of a provisional pension by the Head of Department. Regulation 919-A(3) contains a prohibition on the payment of death-cum-retirement gratuity to a Government servant until the conclusion of the departmental or judicial proceeding. The expression ‘judicial proceeding’ would necessarily include the pendency of a criminal case. Thus, in view of the specific prohibition which is contained in Regulation 919-A(3), no death-cum-retirement gratuity would be admissible until the conclusion of the departmental or judicial proceeding.” 29. It is also pertinent to mention here that the judgment passed in Jai Prakash was challenged before the Hon’ble Supreme Court in Special Leave to Appeal (C) No. 6447/2014; Jai Prakash v. State of U.P. and others, and the Special Leave Petition has been dismissed having no merit. 30. It is also pertinent to mention here that the judgment passed in Jai Prakash was challenged before the Hon’ble Supreme Court in Special Leave to Appeal (C) No. 6447/2014; Jai Prakash v. State of U.P. and others, and the Special Leave Petition has been dismissed having no merit. 30. Thus, it is clear that where a judicial proceeding is pending on the date of retirement, provisional pension may be sanctioned under Article 351AA read with 919-A and no death-cum-retiral gratuity shall be paid untill conclusion of the departmental/judicial proceedings or as the case may. 31. In view of above, we are of the considered opinion that the provisional pension has rightly been sanctioned in accordance with law to the petitioner by the order dated 2.9.2014, which does not require any interference by this Court and the petitioner is also not entitled for death-cum-retiral gratuity till conclusion of the pending judicial proceedings. 32. The writ petition is misconceived and lacks merits. Accordingly, dismissed. 33. Cost easy.