Court No. - 38
Case :- WRIT - A No. - 10656 of 2019 Petitioner :- Rajbandan Mishra Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pankaj Kumar Srivastava,Sasmita Srivastava Counsel for Respondent :- C.S.C. Connected with Case :- WRIT - A No. - 13417 of 2019 Petitioner :- Rajbandan Mishra Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sasmita Srivastava,Pankaj Kumar Srivastava Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
These two petitions filed by the same petitioner have been connected and heard together, and are being disposed of at the admission stage itself with the consent of the learned counsel for the parties.
The first Writ Petition No.10656 of 2019 has been filed challenging an order of suspension passed against the petitioner dated 11.7.2019, contained in Annexure-2 to the writ petition. The writ petition has been entertained and following orders have been passed on 18.7.2019:-
"This petition is directed against an order dated 11.7.2019, whereby petitioner has been placed under suspension on the charge that he has not submitted details of inspection carried out by him to the concerned enquiry officer and that he has not given charge in respect of panchayats where he had earlier remained posted.
The order is assailed on the ground that charges levelled against the petitioner are not serious enough so as to warrant imposition of major punishment, nor any such satisfaction has been recorded in the order itself, and therefore, the order of suspension is in teeth of rule 4 of the Rules of 1999. It is also stated that petitioner is due to retire on 31.7.2019.
Matter requires consideration.
Notice on behalf of respondent nos.1 to 5 has been accepted by learned Standing Counsel, who may file counter affidavit within six weeks. Rejoinder affidavit may also be filed within two weeks, thereafter.
List thereafter.
Till the next date of listing, the effect and operation of the order of suspension dated 11.7.2019 shall be kept in abeyance. It shall, however, be open for the respondents to proceed departmentally against the petitioner as per law. "
No counter affidavit has been filed in the aforesaid writ petition.
The second Writ Petition No.13417 of 2019 has been filed for a direction upon the respondents to release retiral benefits due and payable to the petitioner.
Learned counsel for the petitioner submits that the charges levelled against the petitioner are not serious enough and he has otherwise attained the age of superannuation on 31.7.2019. It is stated that on account of pendency of disciplinary action the retiral benefits have been withheld.
Learned counsel for the petitioner places reliance upon a judgment of the Apex Court in the case of BSNL vs. Rajesh Kumar Saxena, (2008) 11 SCC 213 to submit that the authorities are required to release provisional pension and GPF to the petitioner forthwith and that all retiral benefits cannot be denied to the petitioner.
Reliance is also placed upon a Full Bench judgment of this Court in Special Appeal No.40 of 2017 (Shivagopal vs. State of U.P. and others), wherein this Court observed that regular pension and gratuity cannot be paid to an employee, if judicial proceedings or disciplinary proceedings are pending against him. After considering the issue, the Full Bench has answered the reference in following terms in para 78 of the judgment dated 8.5.2019:-
"78. In view of the foregoing discussions, we arrive at the following conclusions:
(i) Future good conduct is implied condition of ever grant of pension. Full pension is not to be given as a matter of course, or unless the service rendered has been thoroughly satisfactory. (Article 351/351-A)
(ii) Article 351 and/or 351-A can be invoked by the State Government or the Governor, as the case may be, if the pensioner (a) be convicted of serious crime;
(b) be guilty of grave misconduct (c) caused pecuniary loss to the government in service. The power can be exercised in either of the eventualities. The action thereunder is punitive.
(iii) Pendency of disciplinary/judicial proceedings on the date of retirement, or instituted after retirement, provisional pension equal to maximum pension as mandated under Article 919-A may be sanctioned to the government servant for the period upto conclusion of the proceedings. (Article 351-AA/Article 919-A(1)/ (2))
(iv) No gratuity is payable to the government servant during pendency of disciplinary/judicial proceedings/enquiry by Administrative Tribunal, until conclusion of the proceedings/enquiry and orders being passed thereon by the competent authority. [Article 919 A(3)]
(v) The Regulations mandates that government servant is entitled to provisional pension equal to maximum pension during pendency of the proceedings until conclusion. The Regulations does not mandate the entitlement of full pension/gratuity on the ground of 'hardship' being faced by the pensioner pending proceedings.
(vi) The nature of the charge/allegations against the government servant cannot be gone into during pendency of the proceedings. The government servant whether guilty of 'serious crime' and/or 'grave misconduct' in the opinion of the competent authority can be assessed/considered while passing final orders upon conclusion of the disciplinary/judicial proceedings.
(vii) On combined reading of Article 351, 351-A, 351-AA and 919-A, the impact on pension/gratuity would arise after the competent authority has had the occasion to consider and issue final orders upon conclusion of the proceedings. The cause to the government servant arises thereafter and not at the stage pending proceedings/enquiry."
In the facts of the present case, petitioner has attained the age of superannuation on 31.7.2019. A charge sheet apparently has been served upon the petitioner. Reply to it has not been submitted by the petitioner so far. It is submitted on behalf of the petitioner that a reply shall be submitted to the charge sheet within two weeks from today.
In view of the above, it is provided that in case petitioner submits a reply to the charge within two weeks from today, alongwith certified copy of this order, the disciplinary authority shall conclude the disciplinary proceedings initiated against the petitioner within a further period of three months thereafter. Petitioner undertakes to cooperate. A final decision accordingly would be taken by the disciplinary authority immediately thereafter. During the aforesaid period petitioner's claim for release of provisional pension would be considered and amount due and payable in that regard would be released to him, keeping in view the law laid down by this Court in the case of Shivagopal (supra) and all other retiral benefits would be processed within two months of the conclusion of disciplinary proceedings.
With the aforesaid observations, both the writ petitions stands disposed of.
Order Date :- 30.9.2019 Ashok Kr.