The special appeal arises from a judgment and order of the learned Single Judge dated 29 November 2013 directing the appellants to release all the retiral benefits of the respondent with interest at the rate of 12% per annum including full pensionary benefits.
The respondent was appointed as a Sub Inspector in the State Police. The respondent was committed to trial and by a judgment of the Sessions Judge, Etah dated 20 November 1998, he was convicted of the offences inter alia under Section 302 read with Section 149 and under Section 364 of the Indian Penal Code and was sentenced to undergo imprisonment for life. The respondent has filed a criminal appeal, which has been admitted by this Court on 24 November 1998 and he has been released on bail. Realisation of the fine imposed by the Sessions Judge has been stayed during the pendency of the appeal.
The respondent attained the age of superannuation on 31 May 1999. A provisional pension has been released to him but full pensionary benefits, gratuity and other retiral dues were withheld on the ground that an appeal against the order of conviction inter alia under Sections 302 and 364 of the Indian Penal Code is pending before this Court. The respondent filed a writ petition1, which came up for hearing before the learned Single Judge. The learned Single Judge was of the view that in the present case no pecuniary loss was caused to the department or to the Government and even after the criminal proceeding is finalized, no recovery would be made from the respondent. For this reason, the petition was allowed with a direction for payment of full pensionary benefits together with all other retiral dues with interest at the rate of 12% per annum.
The submission, which has been urged by the learned Standing Counsel, is that the view which has been taken by the learned Single Judge is directly contrary to the provisions of Regulation 351-AA of the Civil Service Regulations2 read with Regulation 919-A(3). These provisions, it was urged, have been construed in a judgment of a Division Bench of this Court in State of U.P. and others v. Jai Prakash3.
On the other hand, it has been submitted on behalf of the respondent that the pensionary dues have been allowed to the other accused who were tried and convicted with the respondent and who, like the respondent, were engaged in the Police Service of the State of Uttar Pradesh. Hence, it was urged that on a parity of reasoning, the respondent should be granted the same benefit.
Regulation 351-AA of the Regulations provides 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 of the Regulations is in the following terms:
"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."
Besides these two regulations, Regulation 351 stipulates that the State Government reserves to itself 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.
These regulations have been construed in the judgment of the Division of this Court in State of U.P. and others v. Jai Prakash (supra), rendered on 17 December 2013, where it has been held as follows:
"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.
8. 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 view of the law as laid down in the aforesaid decision, the judgment of the learned Single Judge would, in our view, be unsustainable. The clear mandate of Regulation 351-AA is that in case of a Government servant who retires on attaining the age of superannuation or otherwise and against whom judicial proceedings are pending on the date of retirement or are instituted thereafter, a provisional pension may be sanctioned. Regulation 919-A(3) contains a specific prohibition on the payment of death-cum-retirement gratuity until the conclusion of judicial proceedings. In terms of Regulation 919-A a provisional pension has been made admissible to the respondent.
However, it has been urged on behalf of the respondent that full pensionary benefits have been released to some of the other accused, who were tried along with the respondent. In view of the clear mandate of the provisions contained in Regulation 351-AA read with Regulation 919-A, we are of the view that such a direction cannot be issued by this Court supposedly on the basis of parity. In the present case, the respondent has been convicted of a serious crime within the meaning of Regulation 351. Under Regulation 351 the Government reserves to itself the right to withhold a pension if the pensioner is convicted of a serious crime. In view of the provisions of Regulation 351-AA, the State Government was acting within its statutory powers in withholding regular pension and as provided under Regulation 919-A(1) provisional pension has been released to the respondent.
In this view of the matter, the judgment and order of the learned Single Judge is, with respect, erroneous. The learned Single Judge was in error in holding that merely because no pecuniary loss was caused to the department or to the Government, no recovery would be required to be made and hence, the entire pensionary dues should be released. Regulation 351-A of the Regulations, which has been noticed in the decision in State of U.P. and others v. Jai Prakash (supra), deals with a situation where inter alia a pensioner is found to have caused a pecuniary loss to the State by his misconduct or negligence during service. Regulation 351 and Regulation 351-AA of the Regulations do not confine the power of the Government to withhold the pensionary dues until a loss is shown to be caused to the State.
For these reasons, we allow the special appeal and set aside the impugned judgment and order of the learned Single Judge dated 29 November 2013. However, we clarify that upon the disposal of the criminal appeal by this Court, necessary consequences under the law shall follow based on the outcome of the case.
The special appeal, is accordingly, allowed. There shall be no order as to costs.
Order Date :- 14.10.2014 SKT/-
(Dr. D.Y. Chandrachud, CJ.) (P.K.S. Baghel, J.) Hon'ble Dr. D.Y. Chandrachud, Chief Justice Hon'ble Pradeep Kumar Singh Baghel, J.
Allowed.
For order, see our order of the date passed on the separate sheets (seven pages).
Order Date :- 14.10.2014 SKT/-
(Dr. D.Y. Chandrachud, CJ.) (P.K.S. Baghel, J.) Chief Justice's Court Civil Misc. Delay Condonation Application No. 329013 of 2014 In Case :- SPECIAL APPEAL DEFECTIVE No. - 840 of 2014 Appellant :- Additional Director General Of Police And 3 Others Respondent :- Radhey Shyam Sharma Counsel for Appellant :- S.C.
Counsel for Respondent :- Shiv Krishna Bahadur Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Pradeep Kumar Singh Baghel,J.
There is a delay of 263 days on the part of the State in filing the present special appeal against the judgment and order of the learned Single Judge dated 29 November 2013.
The delay has been satisfactory explained in the affidavit in support dated 08 September 2014 and hence, is condoned.
The delay condonation application is, accordingly, allowed.
Order Date :- 14.10.2014 SKT/-
(Dr. D.Y. Chandrachud, CJ.) (P.K.S. Baghel, J.)