Mohan Ram vs State of U.P. and Others

Mohan Ram is before this Court assailing the validity of the order dated 13.05.2014 passed by the learned Single Judge in Civil Misc. Writ Petition No. 26621 of 2014 (Mohan Ram v. State of U.P. and others) dismissing the claim of appellant for release of full pension.

Brief background of the case as is reflected from the pleadings set out that appellant was working as Constable Driver in U.P. Police Department. In the year 2013 when appellant was posted as Constable Driver at District Chandauli, while appellant was driving a prison van, due to negligence of police, one accused person namely Sunil Yadav escaped from the police custody and in reference of said incident, FIR has been lodged in Case Crime No. 827 of 2013, under Sections 222 and 224 IPC, Police Station Cantt, District Varanasi. This much is also clear that in the said criminal case, after investigation has been carried out, charge sheet has been filed, trial in question is stated to be still pending and appellant has attained the age of superannuation. Thereafter, order dated 07.04.2014 has been passed whereby provisional pension has been accorded in consonance with Government Order dated 28.10.1980 on the ground that criminal case is pending in Case Crime No. 827 of 2013, under Sections 222 and 224 IPC, Police Station Cantt, District Varanasi.

Sri Mukesh Pandey, learned counsel for the appellant contended with vehemence that learned Single Judge has erred in law in rejecting claim of appellant whereas criminal case has no relevance with the payment that is to be ensured to the appellant, and at no point of time, any pecuniary loss has been caused by the appellant and accordingly special appeal deserves to be allowed.

Claim has been resisted by learned Standing Counsel by contending that here appellant has been charge sheeted, criminal trial has been on going and once criminal charge is in reference of discharge of his duty, rightful decision has been taken in accordance with the provision of Civil Service Regulation 351-A read with Regulation 919-A(3) as well as Government Order dated 28.10.1980.

In order to appreciate respective arguments this Court proceeds to examine the Government Order dated 28.10.1980 as well as Government Order dated 28.07.1989. Relevant extract of the aforesaid Government Orders is being extracted below:

Government Order 28.10.1980

Government Order dated 28th July, 1989

Perusal of aforementioned Government Order would go to show that said Government order deals with the grant of interim pension and withholding of the gratuity qua superannuated employees against whom departmental proceedings, judicial proceeding or inquiry by Tribunal/Vigilance is going on. In this background the aforementioned Government Order mentions that against an incumbent, against whom at the point of time, when an incumbent attained the age of superannuation, if departmental inquiry, judicial proceeding are going on, or an enquiry by Tribunal/Vigilance is going on or is contemplated then interim pension in all eventuality be paid and no gratuity amount be paid till proceeding are concluded or final decision is taken. It further mentions that from gratuity amount, said amount be deducted in regard to which observations have been made in the administrative/proceedings referred to. Thereafter terms and conditions for release of interim pension has been mentioned.

This Court after noticing the aforesaid Government Order proceeds to take note of other provisions, to answer the issue involved. Under Rule 9 (1) of the U.P. Retirement Benefit Rules, 1961 Government has right to recover from a gratuity or family pension sanctioned under the same circumstances as recoveries can be effected from an ordinary pension under Regulation 351-A of the Civil Service Regulations. A Government Servant after attaining the age of superannuation is entitled for pension in accordance with the provisions of Civil Service Regulations (as applicable in the State of Uttar Pradesh). According to paragraph 41 of Civil Service Regulations pension has been defined in following manner. "Except when the term "Pension" is used in contradistinction to gratuity "Pension" includes Gratuity." Regulations 351 and 351-A relates to withdrawing a pension or any part of it and to order the recovery from the pension respectively.

"Civil Service Regulation 351 provides for as follows:

"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. 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."

Regulation 351-A is as follows:

"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 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."

Regulation 351-AA is as follows:

"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, which reads as follows:

"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."

Regulation 351 reserves to the State Government the right to withhold or withdraw pension or a part thereof upon a pensioner being convicted of a serious crime or being guilty of a grave misconduct. Conviction of a serious crime within the meaning of regulation 351 postulates that after a criminal trial, a pensioner has been found guilty of an offence involving a serious crime. In other words, there has to be a judicial determination by which the pensioner is convicted of a serious crime. Regulation 351-A reserves to government the right to withholding or withdrawing of pension and the right to order a recovery from the pension, if a pensioner is found in departmental or judicial proceedings to be guilty of grave misconduct or to have caused a pecuniary loss to the Government by his misconduct or negligence. Hence, regulation 351-A operates in two areas:

"(i) if the pensioner is found in departmental or judicial proceedings to be guilty of grave misconduct; (ii) 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."

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 o r, 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.

Division Bench of this Court in the case of State of U.P. v. Jai Prakash Special Appeal Defective No. 1278 of 2013 Laws (All)-2013-12-112/ADJ-2014-1-207 has taken following view.

"The learned Single Judge, in the present case, has proceeded on the basis that neither in regulation 351 nor in regulation 351-A is a withholding of gratuity contemplated during the pendency of a judicial proceeding. The learned Single Judge, with respect, has overlooked the provisions of regulation 351-AA and a specific bar which is contained in regulation 919-A (3). 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 a departmental or judicial proceeding. The expression ''judicial proceeding'' would necessarily include the pendency of a criminal case.

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.

In a recent judgement of the Supreme Court in State of Jharkhand & Ors. v. Jitendra Kumar Srivastava & Anr., 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).

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.

In view of the above, we allow the appeal and set aside the impugned order of the learned Single Judge dated 10 May 2013. In consequence, the petition which has been filed under Article 226 of the Constitution shall stand dismissed. There shall be no order as to costs".

Said Division Bench judgement has been considered once again in Special Appeal Defective No. 416 of 2014 (State of U.P. And 3 others v. Faini Singh) as follows:--

"10. The discussion in State of UP v. Jai Prakash (supra) opens up another question to be considered namely whether the power under Section 351AA read with regulation 919A can be used mechanically on the pendency of any judicial proceedings against the government servant, without considering the allegations against the retired government servant, and would empower the competent authority to withhold gratuity, and full pension.

Every power vested in authority has to be utilised bonafidely for the purposes for which such power is given. The discretion given should not consume the power for which such discretion is to be exercised.

In the present case, Faini Singh-the petitioner/respondent serving as Sub Inspector retired on 31.12.2006 from District Bijnor, Uttar Pradesh. A first information report was lodged on 14.2.1994 under Sections 419, 420, 467 and 468 IPC, P.S. Dalanwala, District Dehradun against the petitioner in which it was alleged that the first accused along with 10 accused persons including the respondent committed a fraud in taking a loan by Shriram son of Hari Ram from U.P. Financial Corporation. The Criminal Investigation Department carried out investigation and found that the loan was taken by furnishing false documents and of which one Shri Hukum Singh as well as Faini Singh-the petitioner were the guarantors. During investigation it was found that some amount was given to Faini Singh by issuing cheques by Shriram-the borrower. The total amount of the loan involved was Rs. 20,000/-.

It is stated that a charge sheet was submitted in which the trial is still pending even after twenty years after the registration of the crime and eight years after the superannuation of the petitioner-respondent.

We are of the opinion that the existence of the power by itself does not justify the exercise of powers. The petitioner retired eight years'' ago. The crime, in which the petitioner is an accused, is based on allegation of fraud committed by Shriram. Shri Hukum Singh and Shri Faini Singh-the petitioner were guarantors to the loan. In the writ petition it is stated that the entire loan amount was repaid as soon as the notice was received by Shri Faini Singh and that no loss was caused to the UP Financial Corporation.

In this case we find that the order of Superintendent of Police, Bijnor dated 26.11.2013 passed in pursuance to the directions issued by this Court on 10.9.2013 in Writ Petition No. 47500 of 2013 did not take into consideration the allegation made against the petitioner in the first information report. The order was passed withholding of gratuity and commutation of pension under Para 351 and 351A of Civil Service Regulation only on the ground that the Criminal Case No. 35 of 1994 under Sections 419, 420, 467, 468, 471, 120B IPC, P.S. Dalanwana, District Dehradun, Criminal Case No. 24/1994 is pending against him in the Court of Chief Judicial Magistrate, District Dehradun. The order also refers to the payment made to the petitioner regarding leave encashment, GFP, insurance amount and provisional pension.

We also find that Regulations 351 and 351A of Civil Service Regulation provide guidelines for exercise of powers to withhold the retiral dues. Regulation 351 provides that if the pensioner is convicted of a serious crime or being guilty of a grave misconduct the State Government reserves the right of withholding or withdrawing a pension or any part of it. Regulation 351A is thus attracted where a person is convicted. Regulation 351A is applicable where the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the government by misconduct or negligence during his service including the services rendered on reemployment after retirement. Regulation 351A is thus applicable in a case where a person is found in a departmental or judicial proceedings to be guilty of grave misconduct or to have caused pecuniary loss to the government. Regulation 919A authorises grant of provisional pension in the cases referred in Regulation 351AA. A combined reading of these regulations would go to show that the powers of withholding or withdrawing pension to be used in the cases where there are no allegations of serious crime or grave misconduct or any pecuniary loss caused to the government by misconduct or negligence during his service including services rendered on reemployment after retirement.

The object of these powers clearly demonstrates that these powers have to be exercised with circumspection and caution and have to be utilised for the purposes for which they have been vested in the State Government. Such powers cannot be used mechanically on the pendency of any judicial proceedings. The delay in judicial proceeding is also required to be taken into consideration and counted for the purposes of exercise of such powers.

The allegations against the petitioner relate to a loan taken by one Shriram of which he was the guarantor. The evidence was collected by the CID regarding giving of some amount by Shriram to the petitioner from his bank account. There are no allegation in the first information report which may attribute any act of deception or fraud on the part of Faini Singh. Even if he was beneficiary of the loan, which was taken by playing fraud, he had deposited the entire amount as the guarantor when he received a show cause notice. These circumstances were neither examined nor considered by the competent authority while exercising powers under Regulation 351AA read with Regulation 919A in withholding the gratuity and in withholding pension to be paid to him.

Ordinarily we would have sent the matter back to the competent authority to decide whether the allegations made against the petitioner were sufficient to withhold the full retiral benefits to the petitioner. We, however, find that the criminal case is pending for last 20 years and even after eight years of petitioner''s retirement and in which the allegations are not such which are directly attributable to the respondent for having played fraud for getting the loan. In any case these allegations have not been proved and the entire amount of loan has been deposited in the UP Financial Corporation.

In our opinion the continuance of the embargo on payment of gratuity and full pension 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 his statutory duty. In the circumstances withholding the gratuity and full pension is not justified at all.

We may point out that a 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. The nature of allegations and the gravity of charge has to be taken into consideration by the competent authority before making an order to withhold the retiral dues. In case the pendency of any judicial proceeding is held to be sufficient, a minor offence or even a parking ticket may be a ground to withhold the pension of a retired employee. Such a situation is not contemplated under the powers conferred on the competent authority under the Civil Services Regulations.

For the aforesaid reasons the Special Appeal is dismissed."

On the parameter of two Division Bench judgements of this Court, the authority is vested under Article 351-A read with Regulation 919(1) Civil Service Regulation to withhold pension/gratuity, where departmental judicial proceeding is pending on the date of retirement. Regulation 351-AA authorities payment of provisional pension by the Head of Department. Provisional pension is to be authorised from the date of retirement upto the date of conclusion of departmental/judicial proceeding or as the case may be. Said exercise of authority has not to be mechanical one and has to be utilised bonafidely for the purpose for which such power is given. The order passed by the learned Single Judge is being looked into and what we find in the present case is that appellant has been an accused for an offence under Sections 222, 224 I.P.C. lodged on 27.09.2013 at Police Station Cantt, District Varanasi, in Case Crime No. 827 of 2013 and this fact has been accepted that after investigation has been carried out, charge sheet has been filed and trial is stated to be pending. Allegations that have been levelled against the appellant are allegations of lapses being there alongwith others on his part while discharging his statutory duty and charge sheet attributes role of facilitating absconding of an accused person.

Consequently, in the fact of the case, once appellant has been charge sheeted, criminal trial is on and charges in question are certainly in reference of discharge of official duty, then there is no infirmity in the judgement of learned Single Judge.

Consequently, present Special Appeal is dismissed.

For the reasons disclosed in the affidavit filed in support of delay condonation application, same constitutes sufficient cause.

Consequently, delay condonation application is allowed and appeal is treated to have been filed well within time.