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KRISHNA MOHAN UPADHYA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Krishna Mohan Upadhya v. State Of U.P. And Others - WRIT - A No. 58451 of 2005 [2007] RD-AH 10606 (15 June 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No.58451 of 2005

Sri Krishna Mohan Upadhyaya

Versus

State of U.P. and others

Hon'ble V.K. Shukla, J.

Petitioner had been performing and discharging duties as Sub-Inspector of Police. During his continuance in service, petitioner was posted on various police stations in various districts. While petitioner Was posted as Station Officer at Police station Sikandra Rau, District Ailigarh in 1983, an F.I.R. was lodged under Sections 147, 148, 149, and 307 I.P.C. and 25/27 Arms Act as case crime Nos. 10 and 11 of 1983 at police Station Chandpa in respect of assemblies of dacoits. Investigation was made and it was found that occurrence was correct and police personnel had discharged their duties in accordance with law.  Report was submitted by Investigating officer and said report was accepted by the concerned court. Thereafter, on 31.10.1984 one Rai Vir Singh, Advocate submitted an application that Hira Lal son of Balwant Singh was abducted from the seat of Shri Man Vir Singh, Advocate, Collectorate, Etha and later on he was killed by the police of police station Chandpa, District Aligarh. On the basis of the aforesaid compliant, F.I.R. was lodged giving rise to case crime No. 2 of 1987 under Sections 147, 148, 149, 344, 357, 364, 302, 201 ,218 and 120 I.P.C. at police station Chandpa, District Aligarh. Petitioner submits that he was not named as accused in the said F.I.R. However, charge-sheet dated 09.02.1996 had been filed in the said case by the C.B. C.I.D. And the said criminal case is still pending and has not been decided. Petitioner, in the meantime attained the age of superannuation on 31.12.2004, while he was posted as Sub-Inspector at police station Narkhi, District Firozabad. Petitioner has contended that annual increment has not been paid from the year 1987 and further  provisional pension has been sanctioned to him. Gratuity amount has been sanctioned,but the same has not been released. Petitioner has contended that he sent representation and thereafter letter had been sent on 26.04.2005. Thereafter his claim has not been accepted for releasing the gratuity amount. At this juncture, present writ petition has been filed.  

In the present case, claim of petitioner has been resisted on the ground that criminal case, in which petitioner has been charge-sheeted, is still pending, as such gratuity amount has been rightly withheld, and no case for interference is made out.

Rejoinder affidavit has been filed disputing the averments made in the counter affidavit. Supplementary affidavit, supplementary counter affidavit and supplementary rejoinder affidavit have also been filed.

After pleadings aforesaid have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri Ram Mohan Saggi, Learned counsel appearing for the       petitioner, contended with vehemence that in the present payment of gratuity amount is substantial right of petitioner and same cannot be withheld, as has been sought to be done in the present case, as such entire action of respondents is prese unjustifiable and unsustainable.  

Sri K.K. Chand, learned Standing Counsel, on the other hand, contended that criminal case has been ongoing  on the date when petitioner  attained the age of superannuation and the same was clearly judicial proceeding and as per executive instructions, which holds the field, rightful decision has been taken, as such no directive can be issued for payment of gratuity.

After respective arguments have been advanced, undisputed factual position, which is emerging is that  petitioner was charge-sheeted  case crime No. 2 of 1987 under Sections 147, 148, 149, 344, 357, 364, 302, 201 ,218 and 120 I.P.C. at police station Chandpa, District Aligarh, by the C.B.C.I.D. and the said criminal case is still pending and has not been decided. Petitioner, in the meantime attained the age of superannuation on 31.12.2004, while he was posted as Sub-Inspector at police station Narkhi, District Firozabad. Petitioner has contended that annual increment has not been paid from the year 1987 and further  provisional pension has been sanctioned to him. Gratuity amount has been sanctioned,but the same has not been released. Petitioner has contended that he sent representation and thereafter letter had been sent on 26.04.2005. Thereafter his claim has not                been accepted for releasing the gratuity amount. Inspector General of Police, U.P. Lucknow has refused payment of pension and gratuity, placing reliance on Government Order dated 28.10.1980. Said Government Order is extracted below:

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        mRrj izns'k 'kkluA

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leLr foHkkxk/;{k ,oa izeq[k dk;kZy;k/;{k]

mRrj izns'kA

                                                      y[ku�? fnukad 28 vDVwcj]1980

fo"k;%& lsok fuo`Rr ljdkjh lsodksa] ftuds fo:) oSHkkfxd U;kf;d dk;Zokgh vFkok iz'kklukf/kdj.k lrdZrk tkap py jgh gS] dks vufUre isa'ku dk HkqxrkuA

egksn;]

mi;qZDr fo"k; ij eq>s ;g dgus dk funsZ'k gqvk gS fd jkT; ljdkj ds isa'ku laca/kh orZeku fu;eksa esa vHkh rd bl vk'k; dk dksbZ fof'k"V izkfo/kku ugha gS fd lsok fuo`fRr ds fnukad dks vFkok lsok fuo`Rr gksus ds mijkUr ;fn dksbZ deZpkjh ds fo:) dksbZ foHkkxh; U;kf;d dk;Zokgh vFkok iz'kklukf/kdj.k@ lrdZrk tkap tkjh gks vFkok tkjh fd;k tkuk visf{kr gks rks D;k mls isa'ku rFkk vU; uSo`fRrd ykHkns; gksaxs ;k ughaA mDr fLFkfr esa lkekU;r% viuk;s x;s n`f"Vdks.k vkSj iz;qDr izfdz;k ds vuqlkj tc rd ml dk;Zokgh vFkok tkap dk ifj.kke izkIr u gks tk; rc rd lacaf/kr lsod dks dksbZ isa'ku o xzsP;qVh dk Hkqxrku ugh fd;k tkrk gSA mDR dk;Zokfg;ksa vkSj tkap ds iwjh gksus vkSj fQj vko';d vkSipkfjdrk;sa iwjh dj vfUre fu.kZ; ysus esa vf/kd le; Hkh yx ldrk gS vkSj ml n'kk esa lacaf/kr lsok fuo`Rr deZpkjh o"kksZ rd lsok uSo`fRrd ykHkksa ls oafpr jgrk gS ftlls mls dkQh vkfFkZd dfBukbZ dk lkeuk djuk iM+ ldrk gSA blds vfrfjDr dbZ ekeyksa esa dk;Zokgh ;k tkap ds ifj.kke Lo:i deZpkjh funksZ"k ik;k tk ldrk gSA bl izlax esa vkidk /;ku 'kk0 vk0 la0 lk&3&2085@nl&907@76] fnukad 13&12&1977 dh vksj Hkh vkdf"kZr djuk gS ftlesa ,sls ekeys esa] ftuesa isa'ku xzsP;qVh dh Lohd`fr vkSj dkxtkr rS;kj djus dh dk;Zokgh fu/kkZfjr le; esa iwjh u gks lds] vufUre isa'ku o vkuqrksf"kd fn;s tkus ds vkns'k izlkfjr fd;s x;s FksA bu vkns'kksa dk ykHk Hkh mi;qZDr dk;Zokgh vFkok tkap ds ekeyksa esa ugha fey ikrk gSA

2- bl iz'u ij xaHkhjrk iwoZd fopkj djus ds mijkUr rFkk bl ckr dks ns[krs gq, fd jkT; esa iz;qDr fu;eksa vkSj vkns'kksa ds vUrxZr lkekU;r% lsok fuo`Rr deZpkjh dks isa'ku rFkk xzsP;qVh ds vfUre :i ls fu/kkZfjr u gks ldus ij vfUre isa'ku@ xzsP;qVh Lohdkj fd;s tkus dh O;oLFkk gS] Jh jkT;iky egksn; us lg"kZ ;g vkns'k iznku fd;s gSa fd lsok fuo`Rr gksus okys ,sls jkT; deZpkfj;ksa dks] ftuds fo:) lsok fuo`fRr ds le; foHkkxh; U;kf;d dk;Zokgh vFkok iz'kklukf/kdj.k @ lrdZrk tkap py jgh gks vFkok fd;k tkuk visf{kr gks] vufUre isa'ku dk Hkqxrku vf/kd`r dj fn;k tk;] fdUrq xzsP;qVh dk Hkqxrku fdlh Hkh n'kk esa mDR deZpkjh ;k tkap iwjh gksus vkSj vfUre fu.kZ; gksus ds iwoZ esa fd;k tk;A xzsP;qVh dh /kujkf'k ls og dVkSfr;ka dh tk;saxh ftudk mYys[k foHkkxh; iz'kklfud @ dk;Zokgh bR;kfn es QyLo:i ikfjr vakns'k esa fd;k x;k gksA ,sls ekeyksa esa vufUre isa'ku dh Lohd`fr fuEu O;oLFkk ds v/khu ns; gksxh&

¼1½ vufUre isa'ku ml /kujkf'k ds cjkcj gksxh tks mldh lsok fuo`fRr dh frfFk rd vkSj ;fn deZpkjh lsok fuo`fRr dh frfFk dks fuyfEcr gks rks mlds fuyEcu ds Bhd igys dh frfFk rd dh vgZdkjh lsokdky ds vuqlkj vuqeU; gkrh gksA

¼2½ ;g isa'ku lsok fuo`fRr dh frfFk ls ml fnukad rd feysxh tc deZpkjh ds fo:) dk;Zokgh tkap iwjh gksus ij l{ke vf/kdkjh }kjk vfUre vkns'k ikfjr djk fn;s tk;] rFkk

¼3½bl vufUre isa'ku dk] dk;Zokgh iw.kZ gks tkus ds mijkUr vUrr% deZpkjh dh Lohd`r gksus okyh isa'ku esa lek;kstu dj fy;k tk;sxk fdUrq ;fn vfUre :i ls Lohd`r gksus okyh isa'ku dh jkf'k vufUre isa'ku ls de gks vFkok isa'ku LFkk;h :i ls vFkok fdlh fuf'pr vof/k ds fy;s de dj nh tk;sxh vkLFkfxr dh tk;] rks deZpkjh ls dksbZ olwyh ugha dh tk;sxhA

3& mi;qZDr O;oLFkk rqjUr izHkkoh ekuh tk;sxh rFkk isa'ku laca/kh fu;e rnuqlkj la'kksf/kr le>s tk;saxs vkSj vkSipkfjd la'kks/ku ckn esa ;Fkk le; fd;s tk;saxsA

4& d`i;k bl 'kklukns'k dh izkfIr Lohdkj djsaA

                                                               Hkonh;]

                                                          ckyd`".k prqosZnh

                                                           fo'ks"k lfpoA**

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 .

         Under   Rule 9 (1) of the U.P. Retirement Benefit Rules, 1961 provides that the 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.  Regulation 351-A deals with the power of Governor to withheld the pension of the Government Servant, if he or she is found guilty in departmental or judicial proceedings or by Tribunal/Vigilance, of being guilty of grave misconduct, or to have caused pecuniary loss to the Government by misconduct or negligence, during his or her service, including service rendered on reemployment after retirement.  Regulations 351 and 351-A of Civil Service Regulation are  being extracted below:-

    "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.

       Note_ This rule is applicable to all the officers enumerated in Article 349 except.............. Army Veterinary Officers of the Civil Veterinary Department.

        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 to 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 reemployment after retirement.

          Provided  that:

   (a) Such departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment.

       (i) shall not be instituted save with the sanction of the Government.

      (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings, and

        (iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.

      (b) judicial proceedings, if not instituted while the officer was on duty either before retirement or during reemployment, shall have been instituted in accordance with sub-clause (ii) (a) and

        (C) the Public Service Commission, U.P. Shall be consulted before final orders are passed.

       Explanation_ For the purposes of this article.

       (a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or, if the officer has been placed under suspension from an earlier date, on such date and

          (b) judicial proceedings shall be deemed to             have been instituted:

           (i) in the case of criminal proceedings, on the date on which a complaint is made, or a charge sheet is submitted to a criminal court; and

   (ii) in the cases 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.

Note:- As soon as proceedings or the nature referred to in this article are instituted,  the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned."

          The power under Regulation 351 is to be exercised by the State Government for withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or is guilty of grave misconduct. Regulation 351-A empowers the State Government to order for recovery from the pension on account of losses found in judicial or departmental proceedings to have been caused to the Government by negligence  or fraud of such officer during his service. There is no difficulty in exercising the power for  ordering recovery of pension when finding comes in a judicial or departmental proceedings. The question for consideration in the present case is as to whether the State Government can direct for non-payment of pension and gratuity amount, when departmental and judicial proceedings have not been finalised. The State Government has issued Government Order dated 28.10.1980 on the subject which has been quoted above wherein it has been provided that those employees against whom on the date of retirement departmental, judicial or proceedings before Tribunal/Vigilance are proceeding or it is necessary to draw such proceedings shall be given interim pension but gratuity be not paid till finalization of the proceeding. The same provision has again been reiterated by Government Order dated 28th July,1989 in which interference has also been made to the Government Order dated 28.10.1980. The Government orders, as mentioned above, do not direct for recovery from pension but only direct that pension will not be paid including the gratuity except the interim pension.  

               This court, in the case of H.C. Sughar Singh Vs. D.I.G. 2004(3) A.W.C. 1925, has taken the view that judicial proceeding as referred to in Regulation 351-A also includes criminal proceeding, and if criminal proceeding is pending, the State Government has full authority to direct for non payment of pension and gratuity, till the finalization of proceedings. Relevant extract of said judgment is being quoted below:

     It is well settled that State Government has executive power to issue executive instructions regulating the service condition of a Government servant which executive instructions are not contrary to any statutory rules. The Apex Court in Sant Ram Sharma Vs. State of Rajasthan, AIR 1967 SC 1910, laid down that administrative instructions can be issued regulating the service condition of the Government employees to supplement the statutory rules. In paragraph 7 of the judgment it was laid down.

          " 7................... it is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not consistent with the Rules already framed.

          Thus, no exception can be taken to the above Government orders issued with regard to payment of pension and gratuity to a Government servant. The Government orders are not in conflict with Civil Service Regulation 351-A but are supplementary . The Government order has been issued or effective exercise of power under Regulation 351-A of Civil Service Regulations. The judicial proceeding as referred to in Regulation 351A also includes a criminal proceeding but the proceeding as contemplated in Regulations are  proceedings which have been instituted while the official was on duty or instituted subsequent to retirement in accordance with proviso to Regulation 351A.

9. Taking into consideration the scheme of Regulation 351A, it is to be found out as to whether the criminal proceedings which are pending against the petitioner can be said to be criminal proceedings as contemplated under Regulation 351A. No doubt if the proceedings pending against the petitioner is judicial proceeding as contemplated under Regulation 351A, the State Government has full jurisdiction to direct for non payment of pension and gratuity till the finalization of proceeding."

On the touchstone of the provisions and judgmetn quoted above, the claim of petitioner is to be adjudicated upon. Here, in the present case, undisputed factual position is that during continuance in service, petitioner was charge-sheeted  in criminal case case under Sections 147, 148, 149, 344, 357, 364, 302, 201 ,218 and 120 I.P.C. at police station Chandpa, District Aligarh, giving rise to case crime No. 2 of 1987. This fact has been admitted by the petitioner that said criminal case is still ongoing, and there is no final order convicting of acquitting him. The question of consideration is as to whether the State Government can give direction for non-payment of pension and gratuity amount, when departmental and judicial proceedings have not been finalized. The State Government has issued Government Order dated 28.10.1980 on the subject, and by the said order, it has been provided that those employees against whom on the date of retirement departmental, judicial or proceedings before Tribunal/Vigilance is going on, no gratuity amount can be released.  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 proceedings 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 proceedings are concluded or final decision. It further mentions that from the 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. Same provision has again been reiterated by Government Order dated 28.07.1990. The Government Order dated 17.01.2001 also reiterates the same position and the said Government Order clarifies the situation in respect of service. The said Government Order has been issued by the State Government, filling in the gaps and supplementing the Rules qua which Rules are silent, and same are not at all in conflict with statutory rules, referred to above, Here action of  respondents is strictly in accordance with the policy formulated, as before attaining age of superannuation, charge sheet in criminal case had been filed.

Reliance has been placed by the petitioner on the provisions of Payment of Gratuity Act, 1972, and based on the said provision, judgment of Gujrat High Court in the case of Gujrat State Road Transport Corporation v. Devendra Bhai Mulvantrai Vaidya 2004 (100) FLR and another judgment of Hon'boe Apex Court  in the case of Jaswant  Singh Gill v. M/S Bharat Coking Coal Ltd. & ors. JT. 2007 (1) 6 for the proposition that there is no provision empowering the authority to withhold gratuity amount. The said judgments will not at all come to rescue of petitioner for the simple reason that claim of petitioner is not at all covered under the provisions of Payment of Gratuity Act. Under Section  2 (e) 'employee' has been defined, sand under Section 2 (f) 'employer' is defined and the Government Employees are not at all included in the same and are expressly excluded, rather claim of petitioner is covered as per provisions of Civil Service Regulations and relevant executive instructions, as per which gratuity amount can be withheld when on the date of superannuation judicial proceedings is pending. In this view of the fact and background claim set up for gratuity is unsustainable.

Writ petition lacks substances and the same is dismissed.

15.06.2007

SRY.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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