Mahfooz Husain Khan vs State of U.P. and Others

Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.

The petitioner retired as Office Assistant-I from the office of Electricity Urban Distribution Circle, Gorakhpur on 30.6.2004 after attaining the age of superannuation, i.e., 58 years. Respondent No. 5 U.P. Power Corporation Ltd. Mohaddipur, Gorakhpur did not pay his retiral dues in spite of directions dated 10.2.2005 by the Chief Engineer Distribution, U.P. Power Corporation (hereinafter referred to as the Corporation). It is in these circumstances that the petitioner has come up in this writ petition for the following reliefs:

(a) issue a writ, order or direction in the nature of mandamus commanding the respondent No. 5 to sanction final pension w.e.f. 1.7.2004 with payment countation.

(b) issue a writ, order or direction in the nature of writ of mandamus commanding to respondent No. 5 to fix revised pay scale w.e.f. 1.1.1996 as per corporation order dated 11.01.2005 with payment arrear along with interest of 1 8%.

(c) Issue a writ, order or direction in the nature of writ of mandamus commanding to respondent No. 5 to pay the amounts of revised Gratuity and to pay Ex-gratial for 2002-2003 and also other claims for which the petitioner is entitled according to law without any further delay.

(d) Issue a writ order or direction in the nature of mandamus commanding the respondent No. 5 as this Hon''ble Court may deem fit and proper in the circumstances of the case.

(e) Award the cost of the petition to the petitioner.

Counter and rejoinder affidavits have been exchanged between the parties. However, in spite of directions for payment of retiral benefits issued by the Chief Engineer Distribution as stated above, the pension of the petitioner has not been paid to the petitioner.

Counter affidavit has been filed with the allegations that an F.I.R. was lodged against the petitioner on 18.4.2004 and five others and charge-sheet was submitted against three persons, namely, Mohd. Anis, Assistant Engineer (Retired); Mahfooz Husain Khan (Clerk) and Uma Kant Jaiswal (Head Clerk).

The petitioner as well as Uma Kant Jaiswal filed Criminal Misc. Application No. 4195 of 2005 Mahfooz Husain Khan and Anr. v. State of U.P. and Ors. in which further proceedings in Criminal Case No. 1280 of 2004, State v. Mohd. Anis and Ors. under Sections 218, 420, 467, 468, 471A and 120B I.P.C., P.S.Cantt. District Gorakhpur pending before the court of Additional Chief Judicial Magistrate, Court No. 13, Gorakhpur were stayed by order dated 4.5.2005. The officials concerned were also directed to place the original record before the Court which has not been produced by them,

It appears from the counter affidavit filed by Sri S.K. Shukla, Deputy Chief Accounts Officer, Zonal Accounts Office, U.P. Power Corporation Ltd.. Mohaddipur, Gorakhpur that at the time of retirement, the petitioner was posted in the office of Deputy General Manager, Urban Electricity Distribution Circle Gorakhpur from where the papers relating to payment of interim amount towards the retiral benefits were to be prepared and forward to the office of the Electricity Distribution Division I, Gorakhpur for payment of pension. The petitioner has been paid (1) interim/provisional pension of Rs. 4,237/- per month w.e.f. 1.7.2004 (2) interim amount of gratuity amounting to Rs. 2,29,000/- through cheque No. 361902 dated 29.10.2004. (3) Rs. 1,47,547/- through cheque No. 187055 dated 12.8.2004 towards leave encashment.

The reason given by the respondents for not making the aforesaid payment immediately on retirement of the petitioner is that steps had been taken for payment of (i) Balance of 10% gratuity, And (ii) Settlement of final payment and balance amount of final pension and provisional pension keeping in view the commutation of pension made by the petitioner. In the mean time it has come to the knowledge of the respondents that a criminal 5 case No. 728 of 2000 is pending against the petitioner in the court of Chief Judicial Magistrate, Gorakhpur, hence in view of the G.O. dated 28.10.1980 the petitioner is not entitled for gratuity and is entitled only for provisional pension.

It is submitted that under some misconception the petitioner has been paid 90% of the gratuity and has also been receiving provisional pension. The learned Counsel for the respondents has also relied upon the order dated 11.1.2005 and submits that as the petitioner has already retired on 30.6.2004, as such in view of paragraph 3 of the order dated 11.1.2005 he is not entitled to any benefit of revision in pay scale. Reference has been made to paragraph 17 of the counter affidavit which is as under:

That in reply to the allegations made in paragraph No. 5 of the petition, it is submitted that so far as the revision of the pay scale of the petitioner in pursuance of the order dated 11.1.2005 is concerned, the same is under consideration as well as necessary steps with regard to the same are under progress, however, it is submitted that in view of the condition prescribed in the said order dated 11.01.2005 and as the petitioner retired on 30,00.2004, as such, the petitioner would not be entitled for any pecuniary benefits on account of the same, i.e., on account of the revision of pay-scale and so far as the effect of the said revision on the determination of the final pension is concerned, as stated hereinbefore, the said final determination of the pension can be made only after the finalization of criminal case, as such, it is not possible for the answering respondents to take any further steps with the said regard.

He submits that in view of G.O. dated 28.10.1980 contained in Annexure C.A. 3 to the counter affidavit which is applicable to U.P. State Industrial Employees the petitioner is not entitled to final pension and that the petitioner has been paid much more than what he is legally entitled to.

It is lastly stated that Writ Petition No. 14467 of 2004 was filed disputing his date of birth on the basis of which he was retired on 28.7.1995. The relevant part of the order dated 7.12.1995 passed by a Division Bench of this Court is quoted as under: -

...At this juncture, before we could decide the case on merit, Sri Tripathi learned Counsel for the petitioner on instruction from the petitioner who is present in the Court, made a statement that his client shall not claim any salary or other benefits for the period after the age of superannuation on 30th July, 1995 and whatever has been paid to him shall be refunded. It has also been suggested that the same may be adjusted from the retiral benefits to be released in favour of the petitioner.

The suggestion made by Sri Tripathi has been accepted by Sri Ranjeet Saxena, learned Counsel appearing for the respondent Department who has submitted that after making the adjustment of the said amount from the payment of the retiral benefits, the outstanding amount shall be released and paid within a period of two months and that the petitioner shall get the regular pension thereafter in accordance with law.

Thus, in view of the fact that the learned Counsel for the parties have agreed on the aforesaid terms, we dispose of this petition with consent of the parties on the terms indicated above.

Sd/- Dr. B.S. Chauhan, J. Sd/- Dilip Gupta, J.

It is urged that the criminal case on account of which some of the retiral benefits is stopped is entirely a different matter wherein the presence of elements of the crime in the application shall be determined; as such the remaining payment of retiral dues would be dependant on the result of the aforesaid petition and that the petition is not entitled to any relief in view of the judgment in the aforesaid Writ Petition No. 14467 of 2004 on the basis of understanding of the parties The petition is premature at this stage and is therefore liable to be dismissed in this view of the matter also.

In rebuttal the learned Counsel for the petitioner submits that from the G.Os. issued by the U.P. Power Corporation from time to time the retiral benefits are to be given to an employee immediately on his retirement and that all the formalities for payment of retiral benefits have to be completed before the retirement, but the respondent-Corporation has not followed the G.O. and on the basis of a concocted and fictitious story is trying to withhold the retiral benefits of the petitioner.

From the judgment dated 7.12.2005 passed in Writ Petition No. 14467 of 2004, Mohd. Anis v. State of U.P. and Ors. it is apparent that the date of birth of the petitioner in that case was 28.7.1937 and not 28.7.1939 and on this basis he was to retire on 30.7.1995. The petitioner in that case was also served with a notice to this effect that he in his own handwriting had recorded his date of birth as 28.7.1939 instead of 28.7.1937 as he was also the drawing and disbursing authority himself and continued for a period of two years by misleading the department beyond his date of superannuation. In that case Mohd. Anis was held to be entitled for regular pension. The learned Counsel for the petitioner has urged that the petitioner having been falsely implicated in the criminal case is also entitled to get the relief of final pension w.e.f. 1.7.2004, computation of pension, fixation of revised pay w.e.f. 1.1.1986 as per U.P. Power Corporation Rules with payment of arrears along with 18% interest and remaining 10% gratuity which is admittedly lying with the respondent-Corporation and other retiral benefits according to law.

I am of the opinion that in view of the fact that the Criminal Misc. Application No. 4195, Mahfooz Husain Khan and Anr. v. State of U.P. and Ors. as well as Criminal Case No. 1280 of 2004, State v. Mohd. Anis and Ors., under Sections 218, 420, 467, 468, 471A and 120B I.P.C. are pending against the petitioner and he is entitled to only provisional pension in view of G.O. dated 28.10.1980 though he has been paid 90% gratuity and other retiral benefits which is much more than what he is entitled to. it is directed that the U.P. Power Corporation will deposit the balance of 10% gratuity and make settlement of final payment of balance amount of final pension and provisional pension keeping in view computation of pension made by him in a separate interest bearing account in a nationalized bank. The amount so deposited shall be subject to the decision of the criminal cases pending against him, and shall be paid to the petitioner in case of a decision in his favour.

With the aforesaid directions, this petition is disposed of.