JUDGMENT R.K. Singh, J.
1. Through this writ petition the petitioner, Krishna Kumar who retired as Deputy Excise Commissioner, has challenged the order dated 3.11.1995, (as contained in Annexure-6 to the writ petition) deducting Rs. 1,66.580 from his gratuity amount and deducting 10% of the pension admissible to him and has prayed for issuance of direction restoring all benefits of service to him and for releasing his gratuity amount forthwith.
2. The petitioner was served with a charge-sheet on 30.5.1991 alleging that due to his negligence and misconduct, the Government suffered a loss of Rs. 40,780 in the financial year 1983-84 while he was posted at Deoria and further loss of Rs. 1,25,800 while he was posted at Allahabad. The Joint Excise Commissioner who was appointed enquiry officer to enquire into the charges, conducted enquiry and submitted his report on 30.12.1991, as contained in Annexure-5 to the writ petition, suggesting to be discharged of the allegations. The Controlling Officer examined the enquiry report. The Government did not agree with the recommendations of the enquiry officer and passed the impugned order as contained in the Annexure-6 to the writ petition deducting Rs. 1,66.580 from the total gratuity amount of the petitioner and further in deduction 10% of the pension admissible to him.
3. The petitioner has challenged the aforesaid order of the Government on the ground that deduction from gratuity is permissible under Section 4(6) of the Payment of Gratuity Act, 1972 only in the case of termination of an employee whereas his services were not terminated by the Government rather he retired from service on 31.5.1991 and thus the deduction in gratuity was not permissible and since he was not given any opportunity of hearing before passing of the order of deduction of pension, therefore, principles of natural justice has been violated. His further case is that the enquiry officer had recommended for discharging him from the allegations and in this back drop since the Government disagreed with the report of the enquiry officer he should have been given an opportunity of hearing but the same was not given and, therefore, the punishment is bad in the eye of law and fit to be quashed by the Court.
4. We have heard Sri V. M. Sahai. learned counsel representing the petitioner and Sri P. K. Bisaria, learned standing counsel representing the respondents, perused the writ petition, counter and rejoinder-affidavits. Also perused the original file maintained in the Secretariate concerning the petitioner which was directed to be produced and which was made available by Sri Bisaria. The petitioner's file shows that the charge-sheet was served on him on 30.4.1991 ; that the enquiry officer had found the charges alleging loss caused to the Government during the service tenure of this petitioner at Deoria and at Allahabad proved but did not recommend for any punishment rather observed that since the petitioner has retired from service, he should be discharged from the allegations levelled by the enquiry officer and the Hon'ble Chief Minister awarded the punishment of recovery of the amount of loss caused to the Government from the gratuity of the petitioner and for 10% deduction in his pension ; that the report of the enquiry officer along with opinion/order of the Government was communicated to the petitioner by registered post on 19.9.1992 directing him to furnish his representation ; that the petitioner, however, did not submit any representation ; and that after waiting for 40 days, the Government referred the matter for approval of the Public Service Commission and on obtaining the concurrence of the Public Service Commission, passed the impugned punishment.
5. Accordingly, we do not find any merit in the allegation of the petitioner that he was not given any reasonable opportunity.
6. In regard to the attack of Mr. Sahai against the order of deduction of the amount of Rs. 1.66 lacs and odd from the gratuity of the petitioner, the learned standing counsel argued that the words 'termination of his employment' includes within its ambit 'termination on superannuation' or 'termination by retirement /resignation /death /disablement due to any accident or disease.' 6.1. For convenience, the Provisions of Section 4 of the Payment of Gratuity Act, 1972 are quoted below :
"4. Payment of Gratuity.-- (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,--
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease :
Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement :
Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall Invest the same for the benefit of such minor in such bank or other financial institution as may be prescribed, until such minor attain majority, if no nomination has been made, to his heirs.
Explanation.--For the purpose of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement.
(2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned :
Provided that in the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account :
Provided further that in the case of (an employee who is employed in a seasonal establishment and who is not so employed throughout the year), the employer shall pay the gratuity at the rate of seven days' wages for each season.
Explanation.--In the case of a monthly-rated employee, the fifteen days wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty-six and multiplying the quotient by fifteen.
(3) The amount of gratuity payable to an employee shall not exceed (one lakh).
(4) For the purpose of computing the gratuity payable to an employee who is employed, after his disablement, on reduced wages, his wages for the period preceding his disablement shall be taken to be the wages received by him during that period, and his wages for the period subsequent to his disablement shall be taken to be the wages as so reduced.
(5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.
(6) Notwithstanding anything contained in sub-section (1),--
(a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to or destruction of property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused ;
(b) the gratuity payable to an employee (may be wholly or partially forfeited)-
(i) if the services of such employee have been terminated for his riotous disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment."
6.2. Section 4(6) of the Act clearly empowers the Government to forfeit to the extent of the damages or loss caused by the employee to the Government, the amount of gratuity due to his wilful omission or negligence causing any damage or loss.
6.3. The word "terminated" has been defined under sub-section (1) of Section 4. It includes termination by superannuation. Thus, we do not find any force in the contention of Sri Sahal, the learned counsel of the petitioner, on this score and accordingly reject the same.
7. The services of the petitioner are controlled by provisions of the Civil Service Regulation. Regulation 351A of which reads as follows ;
"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 this service, including service rendered on re-employment after retirement" :
Provided that-
(a) such departmental proceedings, if no 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) of clause (a) ; and
(c) the Public Service Commission. U. P. shall be consulted before final order are passed :
Provided further that of the order passed by the Governor relates to a cash dealt with under the Uttar Pradesh Disciplinary Proceedings, (Administrative Tribunal) Rules, 1947, it shall not be necessary to consult Public Service Commission.
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 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."
7.1. The petitioner was served with a charge-sheet dated 30.1.1991 before his retirement on 31.5.1991. In the departmental proceedings, the charges were found proved. Thus, the provisions of Regulation 351A are clearly applicable in his case under which the deduction from pension is permissible. Thus, we do not find any illegality or impropriety in the order deducting 10% from pension of the petitioner.
8. in view of our findings, we do not find any merit in this writ petition.
9. in the result this writ petition is dismissed but without cost.
10. The office is directed to hand over a copy of this order within one week to Sri Bisaria for its communication to the Government.