JUDGMENT Ashok Bhushan, J.
1. Heard Sri Satya Prakash Pandey, learned counsel for the petitioner and learned standing counsel. Counter and rejoinder-affidavits have been exchanged between the parties and with the consent of the parties, this writ petition is being finally decided.
2. By this writ petition, the petitioner has prayed for a writ, order or direction in the nature of mandamus commanding the respondents to provide the retiral benefit of the petitioner including full pension, commutation of 12 months' pension and gratuity etc. with interest. By second prayer, the petitioner has prayed for a direction in the nature of mandamus commanding the respondents to properly revise and fix the pay scale of the petitioner and to provide him super selection grade/promotional pay scale of Rs. 5,500-175-9,000 from due date.
3. Facts giving rise to this writ petition, briefly stated, are ; petitioner was recruited as constable in Civil Police on 23rd November, 1962, he was promoted as Head Constable in the year 1982. After completing the age of superannuation, the petitioner retired from service on 31st October, 2000. Petitioner's case in the writ petition is that he was entitled for promotional pay scale in the year 1996 but the respondents have illegally denied the benefit only due to adverse censure entry of the year 1995. Petitioner's case further is that he has been falsely implicated in a criminal case under Section 409 of I.P.C. when he was posted as Malkhana Moharrir at Police Station Juhi, district Kanpur Nagar. Petitioner although retired on 31st October, 2000 but his retirement benefits have not been paid. A counter-affidavit has been filed by the respondents in which it has been stated that a criminal case being Case No. 205 of 2000 under Section 409 of I.P.C. has been registered against the petitioner and after investigation charge-sheet dated 22nd January, 2001 has been submitted in the Court and the case is pending trial before the Court. It has been stated in paragraph 3 of the counter-affidavit that in view of the Government order dated 28th October, 1980 due to pendency of trial against the petitioner he cannot be paid the final pension and gratuity and he is being paid the provisional pension. It has further been stated that after criminal trial comes to an end, the balance amount will be paid to the petitioner. Reference has been made to the censure entry given to the petitioner on 19th July, 1995. It has been stated that petitioner has been given the time scale on 9th September, 1996. It has further been stated that petitioner is not entitled to promotional scale which would have been payable to the petitioner only on 9.9.2002. Rejoinder-affidavit has been filed by the petitioner in which it has again been reiterated that petitioner has been falsely implicated in the criminal case under Section 409 of I.P.C.
4. I have heard the counsel for the parties and perused the record.
5. The first issue, which has arisen in the writ petition, is as to whether the petitioner is entitled for full pension and gratuity in the facts of the present case.
6. 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 351A relates to withdrawing a pension or any part of it and to order the recovery from the pension respectively. Regulations 351 and 351A of Civil Service Regulation are 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.
351A. 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 re-employment after retirement :
Provided that :
(a) Such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment :
(i) shall not be instituted save with the sanction of the Governor ;
(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 re-employment, 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."
7. 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 351A 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 not payment of pension and gratuity when the departmental or judicial proceedings have not yet been finalised. The State Government has issued Government order dated 28th October, 1980 on the subject. By Government order dated 28th October, 1980 it has been provided that those employees against whom on the date of retirement departmental, judicial or proceedings before administrative Tribunal are proceeding or it is necessary to draw such proceedings shall be given interim pension but gratuity be not paid till finalisation of the proceeding. The same provision has again been reiterated by Government order dated 28th July, 1989 in which reference has also been made to the Government order dated 28th October, 1980.
8. 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. 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 v. 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 351A but are supplementary. The Government order has been issued or effective exercise of power under Regulation 351A 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 finalisation of proceedings.
10. In paragraph 3 of the counter-affidavit, it is stated that charge-sheet has been submitted in the Court on 22nd January, 2001 under Section 409, I.P.C. against the petitioner. The date of retirement of the petitioner is 31st October, 2000 as admitted in the counter-affidavit. It is, thus, clear that on the date of retirement judicial proceeding as contemplated in Regulation 351A of Civil Service Regulations have not been instituted since according to Regulations judicial proceedings shall be deemed to have been instituted on the date when a charge-sheet is submitted to a criminal court. The judicial proceedings against the petitioner will not be deemed to be pending on the date of retirement, hence the power under the Government orders dated 28th October, 1980 and 28th July, 1989 for stopping the pension cannot be exercised. In the present case, it is not the case of the respondents that subsequent to retirement of the petitioner the judicial proceedings have been initiated according to proviso to Regulation 351A of Civil Service Regulations.
11. It is, thus, clear that decision of not paying the pension and gratuity after retirement of a Government servant can be taken only when departmental proceedings or judicial proceedings are pending on the date of retirement as contemplated under Regulation 351A or instituted thereafter according to proviso to Regulation 351A of Civil Service Regulations. In the event any judicial proceeding/criminal proceeding is instituted subsequent to date of retirement not in accordance with Regulation 351A of Civil Service Regulation that may not be a ground for stopping the pension under Regulation 351. For example, if after retirement a charge-sheet is submitted against a Government servant in a criminal case on a first information report lodged by a private person, the said criminal proceeding cannot be made basis for stopping the pension or gratuity of the Government servant. However, in case the Government servant is convicted in any criminal proceeding, the State Government is fully empowered under Regulation 351 to withhold or withdraw the pension or any part of it on the basis of conviction of serious crime.
12. In above view of the matter and in the facts of the present case, the State Government was not justified in not paying the pension and gratuity to the petitioner. However, it is made clear that in case petitioner is convicted in the criminal case pending against him. the Government is fully empowered to exercise its power under Regulation 351 to withhold or withdraw the pension or any part of it. The petitioner, thus, has made out a case for direction to the respondents to finalise the pension and pay his gratuity. The respondents are directed to finalise the pension of the petitioner and pay arrears of pension and gratuity to the petitioner within a period of three months from the date of production of a certified copy of this order.
13. In so far as petitioner's second prayer for direction to revise the pay scale of the petitioner and provide him super selection grade is concerned, it is suffice to say that from own pleading of the petitioner, it is clear that petitioner claims himself to be entitled for promotional pay scale in the year 1996. The petitioner retired on 31st October, 2000 and no claim was made by the petitioner till the time he was in service regarding promotional pay scale. This writ petition has been filed by the petitioner on 8th April, 2003. In view of inordinate delay in raising a claim for promotional pay scale to which petitioner claims himself to be entitled during his service, the prayer of the petitioner cannot be considered. The benefit for which, according to the petitioner's own case, he was entitled from 1996, he cannot be allowed to raise after 7 years, hence no direction can be issued for considering the said claim of the petitioner at this stage in this writ petition. Thus, the prayer of the petitioner for issuing a direction to provide him super selection grade/promotional pay scale is refused.
14. In view of foregoing discussions, the writ petition is partly allowed. Respondent No. 1 is directed to finalise the pension of the petitioner and also to pay the gratuity to which the petitioner is entitled within the period as mentioned above. In peculiar facts of the present case in which the authorities were under bona fide impression that the petitioner is not entitled for payment of final pension and gratuity during pendency of criminal trial under Section 409 of I.P.C., the petitioner is not entitled for any interest on the gratuity.
15. Parties shall bear their own costs.